United States District Court, M.D. Florida, Tampa Division
OWNERS INSURANCE COMPANY and AUTO-OWNERS INSURANCE COMPANY, Plaintiffs,
BOBBY T., INC. and BAHAMA BAY CONDOMINIUM ASSOCIATION, INC., Defendants.
D. WHITTEMORE United States District Judge
THE COURT are Plaintiffs Owners Insurance Company
and Auto-Owners Insurance Company's Motion for Summary
Judgment (Dkt. 27), Defendant Bobby T., Inc.'s response
(Dkt. 33), and Defendant Bahama Bay Condominium Association,
Inc.'s response (Dkt. 34). Upon consideration,
Plaintiffs' Motion is DENIED.
BRIEF SUMMARY OF THE CASE
filed this action seeking a declaration that they do not owe
Bobby T., Inc., the named insured in a Commercial General
Liability Policy and Umbrella Policy, a duty to defend or
indemnify in an underlying lawsuit pending in Polk County
Circuit Court, Bahama Bay Condominium Association, Inc.
v. Interplan, LLC and Bobby 71, Inc., No.
2015CA003362. In that case, Plaintiffs are defending Bobby T.
under a reservation of rights. Plaintiffs move for summary
judgment on the discrete issue of whether they owe Bobby T. a
duty to defend, contending that the allegations in the
underlying complaint demonstrate that the claimed
"property damage" falls within the "damage to
your work exclusion" in the policies.
II. UNDISPUTED FACTS
September 2009, Bahama Bay contracted with Bobby T., Inc. to
"repair and remediate the moisture intrusion problems at
the exterior stairs and breezeways" at Bahama Bay Resort
and to prevent it from reoccurring. (Dkt. 1, Ex. A at ¶
13). The contract described the scope of work as
"[s]horing, demolition, framing, waterproofing,
installation of siding and soffits, flashing, painting,
repair of exterior columns and rails, landscaping, cleaning
and pulling all permits." (Dkt. 1, Ex. A at Ex. D).
Bobby T. performed the work in 2009 and 2010. (Dkt. 1, Ex. A
at ¶ 18). In the underlying state court action, Bahama
Bay sued Bobby T. for damages for water intrusion caused by
alleged construction defects. (Id.)
to the underlying complaint, in 2014, Bahama Bay noticed
"visible signs of damage beginning to appear in the same
areas as those where the original damage and subsequent
repairs were made in 2009 and 2010." (Dkt. 1, Ex. A at
¶ 17). In addition, the underlying complaint alleges
that "[s]igns of water damage and moisture infiltration
not only appeared in areas where repairs had been made but
also in areas indicating that leaks were permitting water to
travel from points of penetration to other parts of the
exterior stairwells causing further
damage[and that] [t]he Resort has suffered continued damage
by the ongoing water intrusion and must be
(Dkt. l, Ex.Aat¶¶l7, 19).
policy coverage exclusion
issued a Commercial General Liability Policy to Bobby T. on
December 1, 2014. The policy provides the following coverage
for "[p]roperty damage":
a. We will pay those sums that the insured becomes legally
obligated to pay as damages because of . . . "property
damage" to which this insurance applies. We will have
the right and duty to defend the insured against any
"suit" seeking those damages.
Policy excludes from coverage:
1. Damage to Your Work "Property damage" to
"your work" arising out of it or any part of it and
included in the products-related ...