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Mt. Hawley Insurance Co. v. Aquasol Condominium Association, Inc.

United States District Court, S.D. Florida

July 25, 2019

Mt. Hawley Insurance Company, Plaintiff
Aquasol Condominium Association, Inc., and Lucrezzia Davidson, Defendants.


          Robert N. Scola, Jr. United States District Judge.

         This matter is before the Court on Plaintiff Mt. Hawley Insurance Company's (“Mt. Hawley”) motion for summary judgment. (ECF No. 29.) In its motion, Mt. Hawley contends that it has no duty to defend Defendant Aquasol Condominium Association, Inc. (“Aquasol”) in a breach of contract and negligence claim brought by a condo owner, Defendant Lucrezia Davidson (“Davidson”), against Aquasol. Mt. Hawley maintains that the following three exclusion provisions in the insurance policy (“the Policy”), purchased by Aquasol, relieve Mt. Hawley of any duty to defend: (1) the Association Members Cross Liability Exclusion; (2) the Breach of Contract Exclusion; and (3) Mold, Mildew, Fungus, or Bacteria Exclusion. The Court finds that Mt. Hawley does not have a duty to defend Aquasol based on the Association Members Cross Liability Exclusion (“the Cross Liability Exclusion”), therefore, the other two exclusions- and any arguments pertaining to them-will not be addressed by the Court. Upon review of the record, the parties' briefs, and the relevant legal authorities, the Court grants the Plaintiff's motion for summary judgment (ECF No. 29).

         I. Background

         Mt. Hawley seeks declaratory judgment on the issue of whether it has a duty to defend and a duty to indemnify Aquasol in an underlying state court action. (First Amended Complaint, ECF No. 23.) In the underlying Florida state court lawsuit, Davidson, a condominium unit owner at Aquasol, sued Aquasol under breach of contract and negligence theories for alleged damages sustained in the aftermath of Hurricane Irma. (Id. at ¶ 13.) Davidson has been the owner of Unit 14D at Aquasol since April of 2013. (Id. at ¶ 4.)

         Mt. Hawley issued a Commercial General Liability (“CGL”) insurance policy to Aquasol, effective for the policy period from June 10, 2017 through June 10, 2018. (Id. at ¶ 9.) The Policy includes Endorsement CGL 472 (02/16), Association Members Cross Liability Exclusion, which provides in pertinent part:

         This endorsement modifies insurance provided under the following:

This insurance does not apply to “property damage” or “personal and advertising injury” for any claim or “suit” made by or brought on behalf of an “association member” against any Insured including, but not limited to any “employee” or “executive officer” of the Named Insured or any other “association member.”
For purpose of this endorsement, “association member” means an owner or member of the homeowners or condominium owners association identified on the Declarations as the Named Insured.

(Id.) On or about April 27, 2018, Davidson, through legal counsel, advised Aquasol in writing that Davidson was making demand upon Aquasol for damages. (Id. at ¶ 13.) Specifically, Davidson asserted that her property sustained damage due to Hurricane Irma, Davidson notified Aquasol of the damage, Aquasol retained companies to fix the damage, and these companies damaged Davidson's property and failed to remediate mold. (Id.)

         On or about May 30, 2018, Aquasol, through its representative, submitted a General Liability Notice of Occurrence/Claim to Mt. Hawley, along with the Davidson claim notice, seeking insurance coverage from Mt. Hawley for Davidson's claimed loss. (Id. at ¶ 15.) Subsequently, on June 7, 2018, Davidson filed a lawsuit against Aquasol, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, Civil Division, No. 18-19432 CA 01 (the “Davidson lawsuit”). (Id. at ¶ 17.) After the Davidson lawsuit was filed, Aquasol made demand of Mt. Hawley for defense and indemnification of the matter. (Id. at ¶ 18.)

         Mt. Hawley maintains that there is no duty to defend or to indemnify Aquasol under the Policy because Davidson's claims are excluded by Endorsement CGL 472 (02/16), the Association Members Cross Liability Exclusion; Endorsement CGL 365 (10/15), the Mold, Mildew, Fungus or Bacteria Exclusion; Endorsement CGL 350 (08/09), the Breach of Contract Exclusion; and/or Endorsement CGL 366(02/05), the Continuous or Progressive Injury and Damage Exclusion. Defendants maintain that there is a duty to defend, a duty to indemnify, and coverage for the Defendants under the subject insurance policy notwithstanding the referenced policy endorsements.

         II. Legal Standard

         Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56. In reviewing a motion for summary judgment, the Court must “view the evidence and all factual inferences therefrom in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-movant.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013) (quoting Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1143 (11th Cir. 2007)). So, when a conflict arises between the facts ...

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