Construction Defect Claims
Insurer Not Entitled to Summary Judgment on Construction Defect Claims
Tred R. Eyerly
January 30, 2012
The insurer unsuccessfully moved for summary judgment, contending it had no obligation to defend two related underlying construction defect cases. Amerisure Ins. Co. v. R.L.Lantana Boatyard, Ltd., 2012 U.S. Dist. LEXIS 2466 (S.D. Fla. Jan. 9, 2012).
An engineering report noted design construction defects and deficiencies in visible, physical improvements at The Moorings at Lantana Condominium. In two lawsuits, The Moorings sued the developer,R.L. Lantana Boatyard ("RLLB"), and the contractor, Current Builders of Florida.
Current Builders was insured by Amerisure. RLLB was named as an additional insured under the Amerisure policy. Amerisure defended both suits, but sued for declaratory judgment to establish it had no duty to indemnify RLLB for claims in the underlying actions.
Amerisure moved for summary judgment. Through discovery, Current Builders admitted that no construction that could have given rise to the damages alleged in the underlying complaints began before November 16, 2003, the date on which Amerisure's policy expired. In its opposition, RLLB attached an affidavit stating that Current Builders commenced work, including structural work, several months prior to November 15, 2003.
Amerisure contended that because neither of the underlying complaints alleged damages sustained to the building's structural foundation, but only to visible, physical improvements, there was no genuine issue of material fact which would preclude summary judgment. The court disagreed. It was possible that a defect in the structural foundation from work performed during the policy period caused some of the defects outlined in the complaints. For example, a defectively constructed foundation could result in foundational movement which could have caused some of the cracks in stucco outlined in the engineer's report.
Therefore, a genuine question of fact existed with regard to whether the defects alleged in the underlying complaints were caused by potential structural defects arising from work completed during the policy period.
SOURCE: www.insurancelawhawaii.com