Amerisure Ins. Co. v. Albanese Popkin The Oaks Dev. Group
| Decision Date | 30 November 2010 |
| Docket Number | CASE NO. 09-81213-CIV-MARRA |
| Parties | AMERISURE INSURANCE COMPANY, a Michigan corporation and AMERISURE MUTUAL INSURANCE COMPANY, a Michigan corporation, Plaintiffs, v. ALBANESE POPKIN THE OAKS DEVELOPMENT GROUP, L.P., ALAN GODDARD and ANNETTE GODDARD, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE came before the Court on Plaintiffs' Amerisure Insurance Company and Amerisure Mutual Insurance Company, (collectively "Plaintiffs" or "Amerisure") Motion for Summary Judgment [DE 45], and Defendants' Alan Goddard and Annette Goddard ("the Goddards") Cross-Motion for Summary Judgment [DE 86]. The motions are fully briefed and ripe for review. The Court has reviewed the motions, responses, and replies, the entire file in this case, and is otherwise duly advised in the premises.
Plaintiff Amerisure initiated the present against Defendants Albanese Popkin the Oaks Development Group, L.P., Alan Goddard, and Annette Goddard seeking a declaratory judgment that it is not liable either to defend or indemnify the Defendants in connection with a lawsuit pending in a Florida state court. [DE 38]. Alan Goddard and Annette Goddard brought an action in a Florida state court against Albanese-Popkin the Oaks Development Group, L.P., the builder of their home, as well as against the drywall subcontractor and the distributors of the drywall, for damages arising from the installation of Chinese drywall [DE 45, Exhibit F]. According to the exhibit attached to their Second Amended Complaint, the Goddards and Albanese Popkin entered an "Agreement of Purchase and Sale" for the construction and sale of the house on or about November 23, 2004 [DE 45, Exhibit D]. The Goddards moved into their newly-constructed home on or about October 6, 2006 [DE 39-1 ¶ 26]. In their Second Amended Complaint against Albanese Popkin, the Goddards alleged that,
33. Property damage was sustained within the Building and caused by the release of gases, fumes, and/or vapors from the Chinese drywall brought into the Building in connection with operations being performed on behalf of the Albanese by its subcontractor, OCD.
34. Specifically, OCD brought Chinese drywall into the Building in connection with its operations as the installer of the drywall on behalf of Albanese.
35. In reaction to the humidity indigenous to the South Florida climate, sulfuric compounds contained within the Chinese drywall (including one or more of hydrogen sulfide, carbonyl sulfide, and carbon disulfide) released gases, fumes, and/or vapors from the Chinese drywall into the indoor air of the Building.
36. This resulted in a sulfur odor, which could be smelled by the occupants variously throughout the Building and eventually permeated the Building.
37. The release of gases, fumes, and/or vapors from the Chinese drywall brought into the Building in connection with operations being performed on behalf of Albanese by its subcontractor, OCD, caused and created property damage and/or structure damage to the Building including corrosion on outlet boxes, air conditioning coils, electrical wiring, metals, plumbing fixtures, and the aforementioned sulfur odor which permeated the Building.
38. Plaintiffs initially discovered damage to the air conditioning coils in one of the seven air handling units ("AHUs") in the Building and first began to notice aperiodic sulfur odor in the Building as early as December, 2006. The periodic sulfur odor continued unabated.
39. Throughout 2008, damage was discovered to certain other AHUs in the Building. By Summer, 2009, all seven AHUs had failed due to coil damage.
40. Plaintiffs did not discover the damage to electrical wiring, metals, and plumbing fixtures until some time between April and May, 2009.
41. Also in or about April to May, 2009, the sulfur odor in the Building became dramatically more pronounced. So much so that, from that point forward, it permeated the Building on an ongoing basis and could be smelled on clothing and skin after leaving the Building.
42. Not until some time between April to May, 2009 was Albanese first notified of the property damage to the Building, including the failure of all seven AHUs, the damage to electrical wiring, metals, and plumbing fixtures, and the sulfur odor that permeated the Building.
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44. Not until Summer of 2009 did the Plaintiffs discover the cause of the property damage referenced above-namely, the Chinese Drywall installed within the Building.
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[DE 39-1]
Amerisure issued a commercial general liability insurance policy, number GL 2051427000000, to Albanese Popkin for the policy period of January 16, 2008, through January 16, 2009. [DE 45, Exhibit G-H]. Amerisure issued a commercial general liability insurance policy, number GL 2051427010009, to Albanese Popkin for the policy period of January 16, 2009, through January 16, 2010. [DE 45, Exhibit G-H]. Below are the relevant policy provisions from the two insurance policies:
SECTION I-C OVERAGES
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damaged because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit"seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" and settle any
claim or "suit" that may result. But:
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b. This insurance applies to "bodily injury" and "property damage" only if::
(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory";
(2) The "bodily injury" or "property damage" occurs during the policy period; and
(3) Prior to the policy period, no insured listed under Paragraph 1. of Section Il-Who Is An Insured and no "employee" authorized by you to give or receive notice of an "occurrence" or claim, knew that the "bodily injury" or "property damage" had occurred, in whole or in part. If such a listed insured or authorized "employee" knew, prior to the policy period, that the "bodily injury" or "property damage" occurred, then any continuation, change or resumption of such "bodily injury" or "property damage" during or after the policy period will be deemed to have been known prior to the policy period.
c. "Bodily injury" or "property damage" which occurs during the policy period and was not, prior to the policy period, known to have occurred by any insured listed under Paragraph 1. of Section II-Who Is An Insured or any "employee" authorized by you to give or receive notice of an "occurrence" or claim, includes any continuation, change or resumption of that "bodily injury" or "property damage" after the end of the policy period.
d. "Bodily injury" or "property damage" will be deemed to have been known to have occurred at the earliest time when any insured listed under Paragraph 1. of Section II-Who Is An Insured or any"employee" authorized by you to give or receive notice of an "occurrence" or claim:
(1) Reports all, or any part, of the "bodily injury" or "property damage" to us or any other insurer;
(2) Receives a written or verbal demand or claim for damages because of the "bodily injury" or "property damage"; or
(3) Becomes aware by any other means that "bodily injury"
or "property damage" has occurred or has begun to occur.
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SECTION V-DEFINITIONS
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13. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.
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17. "Property damage" means:
a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it.
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Amerisure also issued two umbrella liability insurance policies to Albanese Popkin with policy number CU 2051428; one has a policy period of January 16, 2008, through January 16, 2009, and the second has a policy period of January 16, 2009, through January 16, 2010. [DE 45, Exhibit I-J] The language in these policies is virtually identical to the provisions listed above, and any differences are not relevant to our analysis.
_____Summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial responsibility of showing the court, by reference to the record, that there are no genuine issues of material fact that should be decided at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the non-moving party bears the burden of proof on an issue, the moving party may discharge its burden by showing that the materials on file demonstrate that the party bearing the burden of proof at trial will not be able to meet its burden. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
When a moving party has discharged its burden, the nonmoving party must "go beyond the pleadings," and, by its own affidavits or by "depositions, answers to interrogatories, and admissions on file," designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electr. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). When deciding...
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