Great Divide Ins. Co. v. Amerisure Ins. Co.
| Decision Date | 13 March 2018 |
| Docket Number | CASE NO.: 2:17-CV-14271-ROSENBERG/MAYNARD |
| Parties | GREAT DIVIDE INSURANCE COMPANY, for itself and on behalf of Aventura Construction Corporation, Plaintiff, v. AMERISURE INSURANCE COMPANY, and DRAWDY CONCRETE CONSTRUCTION, LLC, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE is before the Court on Plaintiff Great Divide Insurance Company's Motion for Summary Judgment, see DE 77, and Defendants Amerisure Insurance Company and Drawdy Concrete Construction, LLC's Motion for Summary Judgment, see DE 75.1 The motions are now ripe. Having considered all relevant filings in this matter, Plaintiff's Motion for Summary Judgment [DE 77] is GRANTED IN PART AND DENIED IN PART and Defendants' Motion for Summary Judgment [DE 75] is GRANTED IN PART AND DENIED IN PART.
Aventura Construction Corporation ("Aventura") entered into a contract ("Major Contract") to build a Cumberland Farms convenience store. DE 78-1. The Major Contract statesthat the "Contractor shall ensure that any sub-contractors engaged by Contractor to fulfill the terms of this Master Contract shall also purchase and maintain insurance coverage and comply with all other indemnities, warrants, and provisions of this insurance exhibit as follows." Id. at 35. The Major Contract also states the insurance requirements for Aventura and any subcontractors, including that the insurance "[m]ust be an occurrence-based policy which covers all aspects of insured's operations including blanket contractual liability, products and completed operations coverage, bodily injury liability . . . ." Id. See also id. at 18 (). Great Divide Insurance Company ("Great Divide") is Aventura's insurer.
Aventura entered into a subcontract (the "Subcontract") with Drawdy Concrete Construction ("Drawdy") in which Drawdy agreed to "[p]rovide labor, material and necessary equipment to complete the concrete and masonry per plan and specification . . . ." DE 78-2 at 2. The Subcontract requires that Drawdy obtain insurance "throughout the entire performance of this agreement" and name Aventura as an additional insured. Id. at 4. The Subcontract also states that the "[s]ubcontractor assumes all risk that contractor assumes toward owner within the parameters of the scope of work associated with the contract." Id. at 10. The Subcontract contains an indemnification clause which states that Drawdy "expressly agrees to indemnify and save harmless Aventura Corp. and owner for all claims, demand, suits, costs or expenses because of bodily injury, sickness or diseases sustained by any person(s) including his employees or damage to property arising out of his operations, work or materials under this Subcontract agreement." Id. at 4.
Drawdy obtained insurance from Amerisure Insurance Company ("Amerisure"). See DE 78-3. The Amerisure policy includes two relevant endorsements. One endorsement, the "Contractor's Blanket Additional Ensured Endorsement," Form 70 48 03 04 ("Blanket Endorsement"), states that an additional insured on the policy is only covered for the named insured's "ongoing operations performed for that additional insured, unless the written contract or agreement or the certificate of insurance requires 'your work' coverage (or wording to the same effect) in which case the coverage provided shall extend to 'your work' for that additional insured." DE 78-4 at 27. The policy contains another endorsement titled "Additional Insured - Owners, Lessees or Contractors - Completed Operations," Form No. CG 20 37 07 04 ("Completed Operations Endorsement"). The Completed Operations Endorsement expressly overrides the Blanket Endorsement "as needed by contract and shown on [the] certificate of insurance on file with the company." DE 78-4 at 91. When the Completed Operations Endorsement applies, it provides insurance "for 'bodily injury' or 'property damage' caused, in whole or in part, by 'your work' at the location designated and described in the schedule of this endorsement performed for that additional insured and included in the 'products-completed operations hazard.'" Id. The relevant distinction between these two endorsements is that the Blanket Endorsement only provides coverage for incidents that happen while Drawdy is on site whereas the Completed Operations Endorsement provides coverage for incidents arising from Drawdy's work even after Drawdy has completed the job. Amerisure issued a Certificate of Liability Insurance listing Aventura as the certificate holder. DE 78-5 at 2.
The Cumberland Farms store was substantially completed on October 7, 2014. "The Core States Construction, the civil engineer, issued a punch list, identifying defects in Drawdy Concrete's work on the curbs and ADA ramp." DE 78 ¶ 18. Drawdy sent workers back to thestore to remedy some of the issues identified in the punch list. Id. ¶ 19. There is a conflict as to who is at fault for the ADA ramp being built at an increased grade. Aventura and Great Divide allege that Drawdy was negligent. Drawdy alleges that it built the ADA ramp at an increased grade due to Aventura's negligence: Aventura placed gasoline tanks too close to the Cumberland Farms building resulting in a narrowing of the sidewalks, which caused the ADA ramp to be built at an increased grade. See DE 78-3 at 15-16; DE 78-8 at 34-35.
On November 13, 2014, after Drawdy had completed its operations, Bruce Henkle, a customer at the store, tripped and fell over the ADA ramp outside of the store. Id. ¶ 22. Mr. Henkle filed suit alleging that Aventura, through its agents, servants and/or employees, was negligent in constructing the ADA ramp. DE 78-11. Aventura and Great Divide tendered the lawsuit to Drawdy and Amerisure for defense and indemnification. DE 78-12. Amerisure disclaimed coverage. DE 78-13. Great Divide ultimately settled the suit for $150,000 and spent $80,169.43 in defense costs and attorney's fees. DE 78-16 ¶ 9-10.
Great Divide, pursuant to the assignment provision in its policy, brought this action on behalf of itself and Aventura. The Complaint states claims against Amerisure for breach of contract for breach of the duty to defend (Count I) and breach of contract for breach of the duty to indemnify (Count II); in the alternative, the Complaint states a claim against Drawdy for breach of contract for failure to secure requisite additional insured insurance and for failing to indemnify (Count III). Defendant Amerisure counterclaimed seeking a declaration that the Subcontract does not require Drawdy to name Aventura as an additional insured for completed operations. DE 15 at 10. Defendant Drawdy counterclaimed seeking a declaration that Drawdy fulfilled it insurance obligations under the Subcontract, that the indemnity provision in the Subcontract is void and unenforceable under Florida law, and that the Subcontract does notrequire Drawdy to name Aventura as an additional insured for completed operations. DE 20 at 10-11. The parties have filed cross-motions for summary judgment.
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The existence of a factual dispute is not by itself sufficient grounds to defeat a motion for summary judgment; rather, "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is genuine if "a reasonable trier of fact could return judgment for the non-moving party." Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson, 477 U.S. at 247-48). A fact is material if "it would affect the outcome of the suit under the governing law." Id. (citing Anderson, 477 U.S. at 247-48).
In deciding a summary judgment motion, the Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). Thus, upon discovering a genuine dispute of material fact, the Court must deny summary judgment. See id.
The moving party bears the initial burden of showing the absence of a genuine dispute of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the moving party satisfies this burden, "the nonmoving party 'must do more than simply show that there is some metaphysical doubt as to the material facts.'" Ray v. Equifax Info. Servs., LLC, 327 F. App'x 819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead, "[t]he non-moving party must make asufficient showing on each essential element of the case for which he has the burden of proof." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Accordingly, the non-moving party must produce evidence, going beyond the pleadings, to show that a reasonable jury could find in favor of that party. See Shiver, 549 F.3d at 1343.
The Court's analysis proceeds as follows: first, the Court analyzes whether Great Divide has standing to sue; second, the Court analyzes whether the subcontract requires Drawdy to obtain completed operations coverage and whether Amerisure's policy covers completed operations; and, third, the Court analyzes whether Drawdy breached its duty to indemnify and whether the contractual indemnity clause violates Fla. Stat. § 725.06.
Amerisure and Drawdy claim...
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