Lassiter Const. Co., Inc. v. American States Ins. Co., 96-1049

• Decision Date: 10 September 1997
• Docket Number: No. 96-1049,96-1049
• Citation: Lassiter Const. Co., Inc. v. American States Ins. Co., 699 So.2d 768 (Fla. App. 1997)
• Parties: 22 Fla. L. Weekly D2136 LASSITER CONSTRUCTION CO., INC., James Daniel Lassiter and Geraldine Sibel, as Trustees for Lassiter Construction Company, Inc., Appellants, v. AMERICAN STATES INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 768

699 So.2d 768

22 Fla. L. Weekly D2136

LASSITER CONSTRUCTION CO., INC., James Daniel Lassiter and Geraldine Sibel, as Trustees for Lassiter Construction Company, Inc., Appellants, v.AMERICAN STATES INSURANCE COMPANY, Appellee.

No. 96-1049.

District Court of Appeal of Florida Fourth District.

Sept. 10, 1997.

Thomas P. Miller of the Law Offices of David S. Maxey, Birmingham, AL, for appellants.

Eric G. Belsky and Ronald L. Kammer of Hinshaw & Culbertson, Miami, for appellee.

ON MOTION FOR CLARIFICATION

KLEIN, Judge.

We grant appellant's motion for clarification and substitute the following opinion for our original opinion which was issued on June 11, 1997.

The appellant insured, a general contractor, was insured by appellee under a commercial general liability policy.The trial court determined that there was no coverage under the policy for defective construction performed by the insured or its subcontractors.We affirm.

The lawsuit for which the insured contends that it is covered under this policy was one brought by the School Board as a result of defective construction performed by the insured pursuant to a contract with the School Board.There are no allegations that the defective construction caused personal injuries or damage to any property other than the school buildings which were being constructed.

The insured concedes that there is no coverage for defective construction performed by the insured as general contractor ¹, but relies on two exclusions in the policy, which are not applicable to subcontractors, to argue that defective work performed by subcontractors is thus covered.The insurer responds that there is no coverage for the defective work alleged in this case in the first place, and accordingly the exclusions are irrelevant.

Under Coverage A. Bodily Injury and Property Damage Liability, the policy provides in part:

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;"...

"Occurrence," is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."

Under the Exclusions portion of the contract it is provided that the insurance does not apply to:

j. "Property damage" to:

* * * * * *

(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; ...

The insurer argues that the above provision excludes the construction deficiencies alleged by the School Board in its complaint.

There are two exclusions on which the insured relies, arguing that because these exclusions do not exclude work performed by subcontractors, there is coverage for the defective work performed by subcontractors.Those provisions are:

j.(6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it.

* * * * * *

Paragraph (6) of this exclusion does not apply to "property damage" included in the "products-completed operations hazard."

l. "Property damage" to "your work" arising out of it or any part of it and included in the "products-completed operations hazard."

This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.

We agree with the insurer that the exclusions relied on by the insured, some of which do have exceptions for work performed by subcontractors, cannot create coverage where there is no coverage in the first place.The insured has failed to demonstrate that there are any...