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Insurer's Duty to Defend Under Injury-In-Fact Theory

In the case of AXIS SURPLUS INSURANCE COMPANY v. CONTRAVEST CONSTRUCTION COMPANY, et al, 23 Fla. L. Weekly Fed. D279a (M.D. Fla. June 5, 2012) (Antoon, J.), the court found that in a declaratory judgment action filed by an insurance company, a commercial general liability insurer has a duty to defend insureds in an underlying suit for allegedly negligent construction and development of individual dwelling units and common areas of condominium community where property damage occurred during policy period.

The court reasoned that under injury-in-fact theory which provides that damage “occurs” at the moment that there is actual damage and date of discovery is irrelevant, the insurer has duty to defend where underlying complaint suggests that “property damage” at issue occurred at some point after buildings were completed but before discovery by expert inspections, which includes the time that the policies were in effect. The court also found that even under the insurer's strict interpretation of the manifestation theory, that property damage “manifests” when it is discovered, the insurer still has duty to defend insurers where allegations of underlying complaint potentially brings the suit within coverage. The court further found that the decision as to insurer's duty to indemnify is premature absent a resolution of the underlying suit.

Facts of the Case

Axis sought a declaration that it had no duty to defend or indemnify its insureds in an underlying suit brought against the insureds by a condominium association. The insureds, in turn, filed a counterclaim against Axis and a third-party complaint against several other insurers, seeking a declaration regarding the various insurers' obligations to defend and indemnify the insureds in conjunction with the underlying suit and, relatedly, the appropriate trigger for coverage with respect to the policies at issue. Two of the third-party insurers moved to dismiss the third-party complaint for lack of subject-matter jurisdiction, asserting that the insured had not presented a justiciable issue.

In the underlying suit, an association brought claims against the insureds for alleged negligent construction and development of individual dwelling units and common areas of a condominium community. Due to this negligence, the community allegedly sustained severe damage, including damage caused by water intrusion, which were not readily discoverable by the association or its members and that they only became aware of the defects through the retention of construction experts.

Axis issued four CGL policies to the insureds and defended the insureds for two policy years in the underlying suit under a reservation of rights and denied coverage for two other policy years. In the third-party complaint, the insureds allege that all of the insurers named issued reservations of rights regarding their duties to defend and indemnify the insureds in the underlying suit and have taken inconsistent positions regarding the issues of coverage and the trigger for coverage. To resolve these inconsistencies, the insureds sought a judgment declaring the following: (1) each insurer's obligation to defend the insureds in the underlying suit; (2) each insurer's obligation to indemnify the insureds regarding the underlying suit; (3) the appropriate trigger for coverage with respect to the policies at issue; and (4) the obligation of the insurers pursuant to section 627.428, Florida Statutes to pay attorneys' fees incurred by the isureds in filing the declaratory action.

Justiciable Controversies?

The court found that the issues regarding the third-party insurers' duty to defend and duty to indemnify did not create justiciable controversies because those insurers had not yet denied any coverage to the insureds.

Furthermore, because there had been no resolution of the underlying suit, a declaration as to the third-party insurers' duty to indemnify was premature.

The court reasoned that a declaration as to the trigger for coverage under each of the third-party insurer policies amounts to a determination of the obligations of the insurers pursuant to those policies and, that this amounted to an advisory opinion and is not justiciable.

Concerning the insured's request for a declaration of the insurers' obligations to pay the insureds' attorneys' fees in connection with bringing the declaratory judgment action, the court found that because it did not have subject-matter jurisdiction over the declaratory judgment claims against the third-party insurers, the insureds have not obtained a “judgment or decree” against either insurer to be entitled to any attorneys' fees pursuant to section 627.428.

Main Lawsuit Against CGL Insurer

The court noted that in order to trigger coverage under Axis's policy, “property damage” must have “occurred” during the policy period. The parties did not dispute that the alleged damage would constitute “property damage” under the terms of the policy. The parties disagreed over whether the alleged property damage “occurred” during the policy period.

Axis asserted that damage “occurs” when it is discovered and that the allegations of the complaint indicate that the damage was not discovered until 2008, which was after the latest Axis policy expired. The insureds asserted that damage “occurs” when it is discoverable and that, based on the allegations of the complaint, the damages may have been discoverable during the Axis policy periods.

The court noted that the Florida Supreme Court has yet to issue an opinion on this issue, and there is disagreement among the trial courts as to which theory is correct, citing the different interpretations of two cases -- Trizec Properties, Inc. v. Biltmore Construction Co., 767 F.2d 810 (11th Cir. 1985), and Travelers Insurance Co. v. C. J. Gayfer's & Co., 366 So. 2d 1199, 1200 (Fla. 1st DCA 1979).

The court carefully analyzed these decisions and noted that under Florida law, whether there is a duty to defend is determined by the facts and legal theories alleged in pleadings against the insured. The court reasoned, “The insurer must defend when the complaint alleges facts which fairly and potentially bring the suit within policy coverage.” Lime Tree Vill. Cmty. Club Ass'n, Inc. v. State Farm Gen.l Ins. Co., 980 F.2d 1402, 1405 (11th Cir. 1993). "The [ ] complaint suggests that the damage occurred at some point after the buildings were completed but before the experts inspected the property. This time period includes the time that Axis's policies were in effect, and therefore Axis has a duty to defend the Insureds in the underlying suit."

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