MCO Environmental, Inc. v. Agricultural Excess & Surplus Ins. Co.

• Decision Date: 12 February 1997
• Docket Number: 95-3654,Nos. 95-3655,s. 95-3655
• Citation: 689 So.2d 1114
• Parties: 22 Fla. L. Weekly D409 MCO ENVIRONMENTAL, INC., Appellant, v. AGRICULTURAL EXCESS & SURPLUS INSURANCE COMPANY and United Capital Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 1114

689 So.2d 1114

22 Fla. L. Weekly D409

MCO ENVIRONMENTAL, INC., Appellant, v. AGRICULTURAL EXCESS & SURPLUS INSURANCE COMPANY and United Capital Insurance Company, Appellees.

Nos. 95-3655, 95-3654.

District Court of Appeal of Florida Third District.

Feb. 12, 1997.

Rehearing Denied April 9, 1997.

Michael C. Spring and David L. Swimmer, Miami, for appellant.

Stephens, Lynn, Klein & McNicholas and Marlene S. Reiss and Gary Khutorsky, Miami; Weiderhold, Moses, Bulfin & Rubin and Kay S. Hoff, West Palm Beach, for appellees.

Before JORGENSON and SHEVIN, JJ., and BARKDULL, Senior Judge.

BARKDULL, Senior Judge.

MCO Environmental, Inc. (MCO), appeals a final summary judgment entered in favor of the appellees in an action for a declaratory judgment. The trial court found that MCO's two liability insurers, United Capitol Insurance Company (UCIC) and Agricultural Excess & Surplus Insurance Company (AESIC) did not have a duty to defend MCO in a cross-claim brought against it by the Dade County Aviation Department (DCAD).

MCO Environmental is a company specializing in environmental remediation. In 1988, it entered into a contract with DCAD to remove asbestos from three buildings at the Miami Airport. The removal was completed in 1992. A dispute then developed between MCO and DCAD over the method of computing payment. A partial settlement was reached and MCO then filed a complaint to recover the balance of the money owed. DCAD filed an amended answer and counterclaim which alleged that MCO employees had damaged building components including electrical systems, lighting fixtures, drywall and the roof. MCO gave notice of the claim to its two liability insurers, UCIC and AESIC. Both carriers denied coverage, but AESIC provided a defense to the counterclaim under a reservation of rights. Both the AESIC and UCIC policies provided coverage for property damage that was caused by an "occurrence," but excluded coverage for property damage caused by MCO's operations or damage caused by incorrectly performed work.

AESIC and UCIC filed actions seeking a declaration that there was no duty to indemnify MCO for the damages alleged or to provide MCO with a defense to the counterclaim. MCO filed an action seeking a declaration that both AESIC and UCIC owed a duty to provide a defense to the counterclaim and a motion to hold in abeyance any decision on the duty to indemnify until the main case between MCO and DCAD was decided. The actions were consolidated and in August 1995, MCO filed a motion for summary judgment on the issue of the duty of the carriers to defend MCO against the DCAD counterclaim. AESIC and UCIC filed motions for summary judgment seeking a trial court determination that no coverage existed. At the hearing on the motions, the court ruled that the issues between Dade County and MCO were strictly contract issues between the two parties regarding performance of the contract as to workmanship and granted the motions for summary judgment in favor of AESIC and UCIC. This appeal followed. ¹

MCO first argues that both insurers were obligated to provide it with a defense to the counterclaim because the complaint only alleges that the damages were caused while MCO was performing its work and does not allege that the damages were due to faulty workmanship. We agree. The law is clear that the duty to defend is broader than the duty to provide coverage and the insurer is required to defend even if the facts later show that there is no coverage. Smith v. General Accident Ins. Co. of America, 641 So.2d 123, 124 (Fla. 4th DCA 1994); Morgan Int'l Realty, Inc. v. Dade Underwriters Ins. Agency, Inc., 617 So.2d 455, 458 (Fla. 3d DCA 1993); Klaesen Bros., Inc. v. Harbor Ins. Co., 410 So.2d 611, 612-13 (Fla. 4th DCA 1982). Any doubt about the duty to defend must be resolved in favor of the insured. Marr Investments, Inc. v. Greco, 621 So.2d 447, 449 (Fla. 4th DCA 1993); Grissom v. Commercial Union Ins. Co., 610 So.2d 1299, 1307 (Fla. 1st DCA 1992); Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So.2d 810, 814 (Fla. 1st DCA 1985). If the complaint alleges facts that could bring the insured partially within coverage of the policy, the insurer is obligated to defend the entire suit. Id. at 1307; Tropical Park, Inc. v. United States Fidelity and Guaranty Co., 357 So.2d 253, 256 (Fla. 3d DCA 1978).

In this case, the DCAD counterclaim alleged that MCO or its employees or agents damaged building components while it was removing asbestos under the contract. There were no specific...