No Coverage for Claim Deemed Made After Policy Expired When Insured First Received Actual Notice of Lawsuit

Elizabeth Jewell | Wiley Rein

The United States District Court for the Northern District of Illinois, applying Illinois law, has held that a claim was deemed first made when the insured received actual, rather than constructive notice of the claim. Philadelphia Indem. Ins. Co. v. Lewis Produce Mkt No. 2, 2022 WL 1045640 (N.D. Ill. Apr. 7, 2022).

The insured, a supermarket, was insured under two successive professional liability policies (the “2020 Policy” and the “2021 Policy”). A lawsuit alleging violations of the Illinois Biometric Information Privacy Act (BIPA) was filed against an uninsured affiliate of the supermarket on the last day of the 2020 Policy, but the insured did not receive notice of that lawsuit until one week later, by which time the 2021 Policy had incepted.  The insured notified its professional liability carrier of the lawsuit and the complaint was later amended to add the insured as a defendant.

The insurer filed a declaratory judgment action, seeking an order it had no duty to defend or indemnify the insured under the policies because under the 2020 Policy, the lawsuit was not a claim deemed first made during the policy period because the insured received notice of the lawsuit after the 2020 Policy expired. The parties agreed that the 2021 Policy, unlike the 2020 Policy, did not provide coverage for BIPA violations.

The court granted a motion for judgment on the pleadings in favor of the insurer. The court highlighted the 2020 Policy’s terms, which provided “a claim shall be considered made when an Insured first receives notice of the Claim.” The court held that while the lawsuit was filed within the 2020 Policy’s policy period, under the relevant policy language, the Claim was deemed made when the insured first received notice of the lawsuit, and it was undisputed that the insured did not receive actual notice of the Claim until after the expiration of the 2020 Policy. As such, the lawsuit was not a Claim made during the relevant policy period. The court also rejected the insured’s argument that it had constructive notice of the lawsuit during the policy period because the lawsuit was a matter of public record, and that constructive notice should be sufficient to deem the claim first made during the 2020 Policy, noting that such an interpretation would contravene the plain and unambiguous language of the 2020 Policy and would render the language deeming a claim first made when the insured “first receives notice” superfluous.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Construction Defect Claims Not Covered

Tred R. Eyerly | Insurance Law Hawaii

    The court found that the insured’s negligent acts causing damage to only the structure of the home it built were not covered under the CGL policy. Westfield Ins. Co. v. Zaremba Builders II LLC, 2022 U.S. Dist. LEXIS 36189 (N.D. Ill. March 2, 2022).

    Zaremba contracted to build a house for the Vrdolyak Trust. After completion of the home, the occupants found many problems, including painting defects such as bubbling and peeling, leaving the basement full of water for months, causing damage to ductwork, framing and piping in the house, etc. The Trust sued and Westfield denied a defense.

    Westfield filed a declaratory judgment action for a ruling that it had no duty to defend or indemnify. On Westfield’s motion for summary judgment, the court determined there was no property damage. Property damage included “physical injury to tangible property.” When the alleged damage occurred in the course of a construction project, tangible property had to be property outside the scope of the contract for project. 

    Zaremba’s construction project encompassed the entire home. The underlying complaint alleged only damage to the structure itself, or damage that fell within the scope of Zaremba’s contract. All the alleged damage constituted damage to the very house Zaremba was contracted to build. Therefore, it did not quality as “property damage” under the policy.

    Zaremba argued he purchased Products-Completed Operations coverage. But purchase of the coverage did not mean that, once the project is complete, any damage to the project itself was covered. While the Products-Completed Operations provision extended the grant of coverage in the insuring agreement to completed products or operations, it remained limited by the terms of that grant of coverage. Here, the insuring agreement required that an “occurrence” result in “property damage’ to trigger coverage. There was no property damage here when the underlying complaint alleged only construction defects causing damage within the scope of the contracted-for project. 

    Therefore, summary judgment was granted to Westfield. 

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Why Killing Mold is not Enough for an Insurance Claim

Michael A. Pinto and Jacob Kooistra | Property Casualty 360

The documents that comprise the current standard of care uniformly emphasize physical removal as the primary means of mold remediation.

Claims adjusters and managers recognize that most home and business policies have caps on the amount paid out to deal with mold remediation.

In the early 2000s, the mold remediation industry was still pretty new. Although some state regulations regarding mold remediation would develop later, no federal mold remediation rules ever came into being. The lack of government control left the industry to establish its own acceptable standards for the proper way to deal with mold contamination.

Who makes the rules for mold remediation?

With no overarching federal control on the growing industry, numerous government agencies, industry associations, and private organizations offered their recommendations related to mold control. Most state regulations have focused on some form of accreditation or licensing for the companies or individuals involved in mold inspections or the control of fungal contamination in buildings. The notable exception to that trend is the state regulation in Texas, which details the acceptable and not acceptable practices for mold remediation.

Over the past 20 years, numerous groups offered their approach to mold remediation. These included organizations such as:

  • American Conference of Governmental Industrial Hygienists (ACGIH),
  • American Industrial Hygiene Association (AIHA),
  • Environmental Protection Agency (EPA),
  • Health Canada,
  • Institute of Inspection Cleaning and Restoration Certification (IICRC),
  • Occupational Safety and Health Administration (OSHA),
  • National Organization of Re-Mediators and Mold Inspectors (NORMI), and
  • The New York City Department of Health.

The primary difficulty with this approach is that even the government agencies were only providing “guidance.” Without the force of law, people were left to pick and choose which recommendations they would follow; or not follow any at all. In response, numerous people reviewed the various guidance documents to identify specific consensus items.

The wide acceptance of common points of intersection from numerous reference materials directly impacted the insurance and legal liabilities associated with mold remediation. The areas of consensus from multiple documents quickly morphed into a de-facto standard of care for the industry. This provided insurance carriers and their clients a mostly level playing field concerning what was acceptable practice for mold remediation in the case of a covered loss.

Mold removal is still vital to remediation

Today, the mold control standard of care has been solidified and clarified for over two decades. However, many consultants and contractors have limited familiarity with the industry reference materials and follow a standardized procedure or practice for all mold projects without understanding whether that particular approach fits within the standard of care.

As many of the experts in fungal contamination control leave the industry, earlier problems of people not understanding or following the industry standard of care are being repeated for a second or third time, creating a serious potential problem for insurers. An agent or adjuster who unwittingly recommends a contractor whose work is outside what has been determined as acceptable industry practice could be liable for more than the covered loss.

The biggest risk in this area is the proliferation of remediation procedures based on some form of treatment of the fungal contamination rather than its removal. There is a constant promotion of products to industry practitioners that spray, mist, fog or foam to remediate mold. However, one of the primary principles of mold control that all of the reference documents and private mold experts agree upon is the need for the physical removal of the fungal contaminants.

This is a critical point, as the documents that comprise the current standard of care uniformly emphasize physical removal as the primary means of mold remediation. A great example can be found in section 4.4 of the current edition of the ANSI/IICRC S520-2015 Standard for Professional Mold Remediation:

Physically removing mold contamination is the primary means of remediation. Mold contamination should be physically removed from the structure, systems, and contents to return them to Condition 1. Attempts to kill, encapsulate, or inhibit mold instead of proper source removal generally are not adequate.

The requirement for physical removal of the fungal contamination is still the most assailed point within the industry. Many individuals argue that fungal contamination can be adequately mitigated through area fogging methods to either neutralize the fungal material or, in rare cases, even claim to chemically break down the physical components. While the advertising verbiage for such products uses terms like “kill,” “destroy,” “eliminate,” “disintegrate” or “obliterate,” they avoid the key phrase from the S520, to “physically remove” the mold.

A broad range of products are currently being sold as remediation alternatives. Some of the more common types of equipment and chemicals promoted for mold remediation that do not require physical removal include ultraviolet light, infrared light, chlorine dioxide, hydrogen peroxide, ozone, sodium hypochlorite (i.e., chlorine bleach), and a wide variety of essential oils.

These products can be applied via sprayers, magnet sprayers, ionized sprayers, binary ionization technology (bit) sprayers, “dry” particle sprayers, vaporizers, foggers, dry foggers, foamers, injectors, robotic light “droids,” ozone generators, hydroxyl radical machines, and more which are currently being peddled as mold remediation devices. Although such products and delivery systems often can be useful during a mold remediation process, none of them are an adequate substitute for physical mold removal.

Learning from past mistakes

Marketing materials describing the benefits of addressing mold contamination inside a wall cavity through a system that avoids removing and replacing drywall can be compelling. Such approaches may be a process a homeowner or business manager is willing to gamble on but should never be recommended or endorsed by someone connected to the claim on the insurance side. Encouraging improper mold remediation, or even appearing to recommend such practices, could easily lead to the client including the insurance company in a legal claim when the remediation efforts fail and lead to ill health effects of the occupants.

Despite the protections for insurers built into the standard policy language regarding fungal contamination, it is still critical for adjusters to understand that there is no “magic bullet” approach to mold remediation that eliminates the difficult task of physical mold removal.

Unfortunately, if mold contamination is on porous building materials, any remediation conducted under the current industry standard of care will require the removal of those finish surfaces. Trying to help the policyholder keep the project costs within the covered amount by steering them to some sort of remediation approach not recognized by the current standard of care is not helpful to the policyholder or the insurance carrier.

The key thing to remember is that chemicals and other treatments can be used in conjunction with physical removal but never as a substitute for real remediation.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Ninth Circuit Finds that “Subsidence Exclusion” Bars Coverage for Landslide Loss

Dina R. Richman | Property Insurance Law Observer

The Ninth Circuit Court of Appeals recently issued an unpublished opinion in Atain Specialty Insurance Company v. JKT Associates, Inc., Case No. 20-16366 (9th Cir., March 11, 2022), finding that a liability policy’s “Subsidence Exclusion” barred coverage for a lawsuit arising out of a landslide. 

In Atain, the insured JKT was hired by a homeowner to perform landscape and hardscape work on her home.  Several years later, a catastrophic landslide occurred,  causing the rear of the property to slide downhill by 15 feet.  Several lawsuits were filed against JKT.  JKT tendered the suits to its insurer, Atain.  Atain agreed to defend JKT under a reservation of rights.   Subsequently, Atain filed a coverage action against JKT, seeking a declaration that there was no coverage as well as reimbursement of the defense costs it had paid.  The district court granted summary judgment to Atain, concluding that JKT’s liability under the suits was not covered by Atain policy because coverage was unambiguously precluded by the “Subsidence Exclusion.”  The Ninth Circuit agreed with the district court, and affirmed the judgment. 

The Subsidence Exclusion provided, in relevant part:   

This insurance does not apply and there shall be no duty to defend or indemnify any insured for any “occurrence”, “suit”, liability, claim, demand or cause of action arising, in whole or part, out of any “earth movement.” This exclusion applies whether or not the “earth movement” arises out of any operations by or on behalf of any insured.

 “Earth movement” includes, but is not limited to, any earth sinking, rising, settling, tilting, shifting, slipping, falling away, caving, erosion, subsidence, mud flow or any other movements of land or earth.

The Ninth Circuit held that landslide is an “earth movement,” and therefore the plain terms of the exclusion barred any coverage for any claim “arising, in whole or part,” from the landslide or from any “settling” or “slipping” that preceded that landslide, regardless of the cause of the landslide.   The Court noted that there could be coverage only if either of the suits sought redress for non-landslide damages, which they did not. 

JKT attempted to point to an allegation that, prior to the landslide, JKT’s negligence “result[ed] in changes in drainage patterns on the Property and the unwanted accumulation of water in the backyard.”  The Court, however, found that there was nothing in that allegation that supported an inference that the accumulation of water itself produced an injury separate from the land movement.   Rather, the complaint stated that the excess water made it more susceptible to failure, which tied it back to the earth movement.  Thus, the Court found there was no possibility of coverage, and no duty to defend or indemnify JKT.  

Although Atain is unpublished, the opinion provides valuable guidance on how courts may analyze this issue in the future. 

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Potential Coverage Issues Implicated by the Champlain Towers Collapse

Theresa A. Guertin | SDV Insights

In June 24, 2021, the Champlain Towers South in Surfside, Florida collapsed, killing nearly 100 individuals (the “Collapse”). As experts uncover more information regarding the cause of the Collapse, those individuals who have filed lawsuits as well as the potentially culpable defendants are looking to insurers for coverage of their bodily injury and property damage claims.

Contractors, engineers, and other professionals are or anticipate being sued for their roles in the Collapse. Those professionals have professional liability policies and/or director and officer liability policies. Likewise, the condominium association’s commercial general liability (CGL) policies and its business property policy may have a duty to defend and/or indemnify their insureds as well. Finally, individual unit owners/renters may look to their homeowners’ insurance, auto insurance, health insurance, and/or life insurance policies for coverage.1

The potential breadth of insurance coverage issues raised by the Collapse is beyond the scope of this article. The article will consider some concerns that could impact insurance coverage under a standard CGL policy in the case of a building collapse.

I. Coverage under a Standard CGL Policy

The standard CGL policy is written on ISO Form CG 00 01 04 13. It provides that the insurer “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” Coverage under a standard CGL policy is triggered only if an “occurrence” causes the bodily injury or property damage, and if said injury or damage occurs during the policy period. Additionally, policy exclusions may impact coverage depending on the circumstances.

A. Defining an “Occurrence”

The standard CGL definition of occurrence means an “accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The Florida Supreme Court has defined “accident” as “injuries or damage neither expected nor intended from the standpoint of the insured.”2 In other words, the Collapse should be considered an occurrence under the standard CGL policy because it caused injuries and damage neither expected nor intended from the insured’s standpoint.3

In support of this conclusion, Florida has adopted the “cause” theory, which defines “occurrence” by examining the cause of the injury.4 Thus, under Florida law, an occurrence is defined by the immediate injury-producing act.5 Here, the Collapse was the immediate injury-producing act for the wrongful death and injury claims. Thus, those claims will likely be considered a single occurrence.6 However, there could be more than one occurrence for the property damage claims if there was more than one immediate cause of the Collapse.7

B. Trigger of Coverage

Generally, there are four trigger of coverage theories: manifestation theory, exposure theory, injury-in-fact theory, and continuous trigger theory.8 In states that have adopted the “manifestation theory,” coverage is triggered under the CGL policy in effect when the injury or damage manifests itself, i.e., when it is discovered or discoverable. The “exposure theory” states that the CGL policy in effect during exposure to the injurious or harmful condition is triggered, or, in the case of property damage, when the installation of a defective product occurs. The “injury-in-fact theory” provides that the CGL policy in effect when the damage actually took place is the triggered policy for coverage. Finally, the “continuous trigger” theory states that all CGL policies are triggered if in effect during any exposure, actual injury, or manifestation. In other words, under a continuous trigger theory, multiple policies may be triggered.

Florida law is unsettled on what trigger theory applies to determine when an occurrence takes place for purposes of coverage under a CGL policy. While many courts have applied the manifestation theory, more recently, several Florida courts have applied the injury-in-fact trigger, unless the timing of the damages cannot be ascertained.9 In the context of the Collapse, the CGL policy or policies that are triggered would most likely be the policy or policies in place at the time of the Collapse under either the manifestation or injury-in-fact trigger theories. Further, more than one policy may be triggered for the property damage claims to the building and interior of the individual units if the damage to the building itself took place over a period of years.

However, if defective construction, negligent inspections, or other improper events took place prior to the collapse, which events caused, for example, settling of the foundation, cracks, water leaks, etc., then the settling of the foundation, cracks, water leaks and other damage could be considered the occurrence, and the policy (or policies) in effect at those times could be triggered. It is likely that the insurers, plaintiffs, and defendants will litigate what trigger of coverage theory should apply. If we are lucky, the Florida Supreme Court may have an opportunity to weigh in on the issue.

C. Identifying Property Damage

Under Florida law, the insured’s own defective work is not property damage. Only damage caused by defective work constitutes property damage for purposes of insurance coverage under a standard CGL policy.10 In other words, an occurrence causes property damage only if the faulty workmanship causes physical injury to some “otherwise non-defective” component of the project.11 Typically, only the resulting property damage will be covered by an insurer. The cost to fix or replace the faulty or defective work itself is not considered property damage and, therefore, is not covered under a standard CGL policy.

Notwithstanding the general rule, in one Eleventh Circuit decision, the court analyzed the scope of covered property damage where defective work had to be destroyed in order to repair the resulting damage.12 In Carithers, a defectively constructed balcony allowed water to seep in and cause property damage to the garage underneath. Although the defective balcony did not constitute property damage, the cost to demolish and replace the defective balcony was covered under the insurance policy because the “rip and tear” costs were necessary to repair the damaged garage. The Court held that this was part of the cost of repairing damage caused by the defective work. Thus, in Carithers, the insurer was required to indemnify the contractor for the cost to demolish and repair the defective balcony.

Following the Collapse, many condominium associations are having their buildings inspected and are discovering major issues that require significant and costly repairs. Whether these claims constitute property damage will be a hotly contested issue as insurance claims are made.

D. Policy Exclusions

While an extensive discussion of all the potential policy exclusions would be beyond the scope of this article, one important exclusion to discuss is the “your work” exclusion, which states that insurance coverage does not apply to “‘property damage’ to ‘your work’ arising out of it or any part of it and included in the ‘products-completed operations hazard’. This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.”13

Many Florida cases have interpreted the “your work” exclusion to mean that insurance coverage does not apply to damages “arising” from the insured’s work.14 In other words, depending on the scope of work, the exclusion could be interpreted broadly. On the other hand, the subcontractor exception provides coverage for damage to the insured’s work arising from the faulty work of the insured’s subcontractors. Where a subcontractor’s faulty work damages the contractor’s work, the contractor’s insurance should indemnify the contractor for damage to its work.

II. Statute of Repose

Even if the victims in the Collapse can prove that an occurrence took place and that it caused property damage and/or bodily injury, they will have to contend with Florida’s statute of repose.15 Florida Statute §95.11(3)(c) states,

[a]n action founded on the design, planning, or construction of an improvement to real property. . . must be commenced within 10 years after the date of actual possession by the owner, the date of issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion of the contract or termination of the contract. . . whichever date is latest.16

Because the building involved in the Collapse was decades old, if the plaintiffs file counts against the original architects and builders based on the design, planning, or construction of the condominium (which plaintiffs have not done), then the claims could be barred, and the victims could be prevented from recovering from those defendants’ insurance carriers.17

What constitutes “design, planning, or construction” may be a source of debate. For example, one appellate court held that negligently inspecting newly completed construction was not founded on the design, planning, or construction of improvements to real property.18 In the Collapse litigation, one issue is the negligent inspection of the property, but not as newly completed construction.

Likewise, in a recent case, the Florida Fifth District Court of Appeal reversed the trial court’s grant of summary judgment, finding a genuine issue of material fact as to when the time began to run for purposes of the statute of repose.19 In Spring Isle, the contractor and subcontractor had entered into a “master agreement” with no specific duration, payment amount, or scope of work, but it provided that the contractor would issue written job orders. Schedule “A” of the master agreement provided certain information relating to the project at issue in the case. The trial court found that because the agreement did not require the subcontractor to perform work, the contract was complete upon the contractor’s payment for each unit. Based on the payment dates, the trial court used the date of the certificate of occupancy as the trigger date for the statute of repose.

The Appellate Court reversed, stating that the work orders were not part of the record, and it could not determine whether each work order was a separate contract or whether they were part of a larger contract. Further, there was no indication that the contractor’s payments were “final” as opposed to progress payments. In other words, the Court found that the subcontractor presented insufficient evidence to determine the contract completion date. Therefore, the Court reversed and remanded the trial court’s ruling.

III. Other Potential Avenues of Recovery

In any collapse case, the maintenance of the building, or lack thereof, may affect liability and insurance coverage. Thus the Condo Board’s director and officer liability policy may be implicated despite those policies typically containing exclusions for property damage and bodily injury claims. Further, the individual unit owners who voted against assessments to repair the building could have some culpability, if such facts are present. Likewise, contractors who repaired the building, building inspectors, and property management companies may have liability exposure for their roles in the Collapse. Finally, attorneys who advised the Condo Board could face lawsuits.

Each of the insurance policies implicated by the Collapse may be required to provide additional coverage to the Board or to other defendants pursuant to litigation claims, depending on who is named as an additional insureds under each policy, and depending on the claims made against each defendant.20

As any practitioner can readily see, the insurance coverage issues raised by a building collapse are far-reaching. Not only must the involved parties determine the cause of the collapse, they must also identify what insurance policies could be triggered.. Other considerations will include whether the insurance policies provide additional insured coverage, and if so, to what extent, and also what umbrella or excess policies, if any, are triggered, since it is apparent that the lawsuits will exceed almost any primary CGL policy. Finally, if multiple policies indemnify the insureds, there may be disputes as to priority of coverage and apportioning liability.

Given the plenary and cumbersome considerations, it is important that any attorney assessing claims arising out of the Collapse be well-versed in insurance coverage litigation in Florida and be prepared to tackle each of these issues as they arise.
_____________________________________________
1Aside from homeowners seeking coverage for property damage and bodily injuries, the homeowners who lived in the building may face individual liability if they voted against an assessment to repair the failing building.
2State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So. 2d 1072, 1076 (Fla. 1998)
3Depending on the causes of action in the underlying litigations, what courts consider to be the “occurrence” may change. For example, in an automobile accident caused by an insured’s employee, an insurer’s duty to defend and indemnify under a CGL policy may be triggered if the accident victim files a count of negligent hiring. See, e.g., Smith v. Gen. Acc. Ins. Co. of Am., 641 So. 2d 123 (Fla. 4th DCA 1994). But see Am. Surety & Cas. Co. v. Lake Jackson Pizza, Inc., 788 So. 2d 1096 (Fla. 1st DCA 2001) (holding that insurer had no duty to defend where CGL policy contained an exclusion for all injury or damage “arising out of” the ownership of any auto).
4Koikos v. Travelers Ins. Co., 849 So. 2d 263 (Fla. 2003) (holding that each shooting constituted a separate occurrence). Compare the “effect” theory, followed in a minority of states, whereby the number of occurrences is calculated by analyzing the effects or injuries resulting from an event.
5Port Consolidated, Inc. v. Int’l Ins. Co. of Hannover, PLC, 826 Fed. Appx. 822 (11th Cir. 2020) (concluding that multiple fuel thefts from cardlock fuel facility constituted multiple occurrences).
6See, e.g., Prieto v. Reserve Ins. Co., 340 So. 2d 1282 (Fla. 3d DCA 1977) (holding that the building collapse was the accident and denying coverage where the collapse took place outside the policy period).
7See Mid-Continent Cas. Co. v. Basdeo, 477 Fed. App’x 702, 708 (11th Cir. 2012) (finding there had been three occurrences where contractor performed faulty tarping, faulty work on the flat roofs, and faulty work on the mansards).
8See, e.g., Auto Owners Ins. Co. v. Travelers Cas. & Surety Co., 227 F. Supp. 2d 1248, 1265 (M.D. Fla. 2002) (discussing each trigger theory and stating, “it is the bodily injury or property damage that must occur during the policy period in order for there to be coverage; and an ‘occurrence’ need not take place during the policy period.”).
9See Id. (in a construction defect case, applying manifestation theory to interpretation of a CGL policy); see also Mid-Continent Cas. Co. v. Frank Casserino Const., Inc., 721 F. Supp. 2d 1209 (M.D. Fla. 2010) (manifestation theory); Assurance Co. of America v. Lucas Waterproofing Co., Inc., 581 F. Supp. 2d 1201 (S.D. Fla. 2008) (manifestation theory); but see Carithers v. Mid-Continent Cas. Co., 782 F. 3d 1240 (11th Cir. 2015) (applying injury-in-fact theory and expressly rejecting the manifestation theory in homeowner’s coverage suit under CGL policy) (citing Trizec Properties, Inc. v. Biltmore Const. Co., Inc., 767 F. 2d 810 (11th Cir. 1985)); Ohio Cas. Ins. Co. v. Timber Development Corp., 2013 WL 12148856 at *10 (M.D. Fla. Sept. 23, 2013) (injury-in-fact theory).
10U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871 (Fla. 2007) (holding that the post-1986 standard CGL policy with products-completed operations hazard coverage provides coverage when a claim is made against the insured for damage to the completed project caused by a subcontractor’s defective work).
11Auto-Owners Ins. Co. v. Pozzi Window Co., 984 So. 2d 1241 (Fla. 2008); see also Amerisure Mut. Ins. Co. v. Auchter Co., 673 F.3d 1294 (11th Cir. 2012).
12Carithers v. Mid-Continent Cas. Co., 782 F. 3d 1240 (11th Cir. 2015). See also Pavarani Constr. Co. (SE), Inc. v. ACE Am. Ins. Co., 161 F. Supp. 3d 1227 (S.D. Fla. 2015) (determining that coverage existed to repair the defective work where doing so was necessary to stabilize the building and prevent ongoing damage to otherwise non-defective property).
13ISO Form CG 00 01 04 13, Section I, Coverage A.2.l. “Your work” is defined as work performed by you or on your behalf, including materials, parts, or equipment furnished in connection therewith.
14See, e.g., J.B.D. Constr. Inc., v. Mid-Continent Cas. Co., 572 Fed. Appx. 918 (11th Cir. 2014) (stating that because the insured undertook construction of the entire fitness center, the “your work” exclusion barred coverage for damages to the completed fitness center and its components). See also, Auto-Owners Ins. Co. v. Elite Homes, Inc., 676 Fed. Appx. 951 (11th Cir. 2017) (holding no duty to defend where complaint in underling litigation did not allege damage to any property other than the insured’s own work). But see, Southern Owners Ins. Co. v. Gallo Building Svcs., Inc., 2018 WL 6619987 at *6 (M.D. Fla. Dec. 18, 2018) (concluding insurer had duty to defend where underlying complaint alleged damages to other building components, damage to the work of other subcontractors, loss of use, and other resulting damages).
15Hess v. Philip Morris USA, Inc., 175 So. 3d 687 (Fla. 2015) (stating that the statute of repose is an affirmative defense).
16The statute provides a one (1) year savings clause for counterclaims, cross-claims, and third-party claims that arise out of the conduct, transaction, or occurrence set out in the pleadings.
17Although Florida litigants have disputed the interpretation of the statute of repose, such litigation likely has no impact on how the statute of repose will affect recovery in this case. See, e.g., Gindel v. Centex Homes, 267 So. 3d 403 (Fla. 4th DCA 2018) (tolling the statute of repose after service of a Chapter 558 pre-suit notice). In response to Gindel, the Florida Legislature added a provision to chapter 558 expressly stating that a notice of claim does not toll the statute of repose.
18Manney v. MBV Engineering, Inc., 273 So. 3d 214 (Fla. 5th DCA 2019).
19Spring Isle Community Assoc., Inc. v. Herme Enterprises, Inc., 2021 WL 4927602 at *1 (Fla. 5th DCA Oct. 22, 2021).
20Practitioners must also look at the contractual indemnification obligations between each defendant.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.