BILTMORE CONST. CO., INC. v. Owners Ins. Co.
| Decision Date | 21 March 2003 |
| Docket Number | No. 2D01-5770.,2D01-5770. |
| Citation | 842 So.2d 947 |
| Parties | BILTMORE CONSTRUCTION CO., INC., and Central-Allied Enterprises, Inc., a continuing joint venture, by and through Biltmore Construction Co., Inc., and Central-Allied Enterprises, Inc., its coventurers, Appellants, v. OWNERS INSURANCE COMPANY and Auto-Owners Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
Dennis P. Thompson of Thompson & Foote, P.A., Clearwater, and Charles W. Pittman of Macfarlane, Ferguson & McMullen, Tampa, for Appellants.
Burke Lopez and Michael S. Rywant of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellees.
Biltmore Construction Company and Central-Allied Enterprises challenge a final summary judgment that determined Owners Insurance Company and Auto-Owners Insurance Company (Owners) were not obligated to defend against a claim brought by Bayshore Heights Associates. We reverse because the claims made in Bayshore's complaint were potentially covered under the terms of the insurance policy issued by Owners.1
Biltmore Construction Company and Central-Allied Enterprises formed a joint venture (Biltmore) that constructed an assisted congregate living facility for Bayshore. Biltmore is a general contractor and Owners was Biltmore's general liability insurance carrier. The basic insuring agreement provides:
Bayshore filed a complaint against Biltmore for damages arising from the construction of its facility. Biltmore informed Owners of the complaint, and Owners denied a duty to defend or indemnify Biltmore for the claims made in Bayshore's complaint. Thereafter, Biltmore filed a complaint against Owners seeking to recover fees and costs incurred in defending the Bayshore lawsuit. Biltmore alleged that Owners had a duty to defend Biltmore pursuant to the insurance contract.2
Competing motions for summary judgment were filed. After a hearing, the trial court granted Owners' motion for summary judgment, finding that Owners did not have a duty to defend Biltmore based on the allegations in Bayshore's original complaint.
We first note that the applicable standard of review is de novo as the interpretation of an insurance contract is a question of law. Auto-Owners Ins. Co. v. Marvin Dev. Corp., 805 So.2d 888, 891 (Fla. 2d DCA 2001). An insurer's duty to defend a complaint depends solely on the allegations in the complaint filed by a third party against the insured. Home Owners Warranty Corp. v. Hanover Ins. Co., 683 So.2d 527, 528 (Fla. 3d DCA 1996).
On appeal, Biltmore argues that Owners was obligated to provide a defense for the second count in Bayshore's complaint. Count two of the complaint alleged that Biltmore furnished and installed defective windows and that the windows, window sills, and exterior walls were improperly constructed, painted, and sealed, which permitted severe water infiltration. Bayshore further alleged that, as a result of the severe water infiltration, it suffered "damage in its business and property."
Owners argues that the claim was not covered by the policy because it fell under the following policy exclusion:
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