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Owners Insurance Co. v. Bobby T., Inc.

United States District Court, M.D. Florida, Tampa Division

March 27, 2018

OWNERS INSURANCE COMPANY and AUTO-OWNERS INSURANCE COMPANY, Plaintiffs,
v.
BOBBY T., INC. and BAHAMA BAY CONDOMINIUM ASSOCIATION, INC., Defendants.

          ORDER

          JAMES D. WHITTEMORE United States District Judge

         BEFORE 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.

         I. BRIEF SUMMARY OF THE CASE

         Plaintiffs 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.[1]

II. UNDISPUTED FACTS

         In 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.)

         According 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 repaired."[2]

(Dkt. l, Ex.Aat¶¶l7, 19).

         The policy coverage exclusion

         Auto-Owners issued a Commercial General Liability Policy to Bobby T. on December 1, 2014.[3] 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.

         The 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 ...

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