Mid-Continent Cas. Co. v. JWN Constr., Inc.
| Decision Date | 08 February 2018 |
| Docket Number | Case No. 9:17-CV-80286-ROSENBERG |
| Parties | MID-CONTINENT CASUALTY COMPANY, Plaintiff, v. JWN CONSTRUCTION, INC., an inactive Florida corporation; UNDERWRITERS AT LLOYD'S, LONDON a/s/o DR. MICHAEL FLAX, a foreign corporation, and MICHAEL D. FLAX, an individual, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
This matter is before the Court on Plaintiff's Motion for Final Summary Judgment [DE 92]. The Motion has been fully briefed. For the reasons set forth below, the Motion is granted and final summary judgment is entered in Plaintiff's favor.
In January of 2008, Defendant Michael Flax wanted to construct a residential home (the "Property"). Flax wanted to use an entity that is not a party to this case, Mager Construction ("Mager"), to build his home. Mager was not an approved builder for the lender that Flax wanted to use to finance the construction. Defendant JWN, however, was an approved builder. Flax therefore entered into an agreement with JWN wherein JWN would act as the general contractor for the construction of his home, and JWN entered into a separate agreement with Mager for Mager to undertake the actual construction project.
After construction was complete, in 2011, Flax discovered water intrusion and other damage at his Property. Flax filed suit in Florida state court and one of the defendants in that suit is JWN. JWN had a general commercial liability insurance policy with Plaintiff. Plaintiff filed the instant suit to determine whether it owes a duty to indemnify and defend JWN.
Summary judgment is appropriate if "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. 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 issome 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 a sufficient 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.
Before the Court addresses the legal arguments in Plaintiff's Motion for Summary Judgment, the Court first addresses the parties' statements of material facts submitted in connection with the Motion for Summary Judgment. On March 31, 2017, the Court entered a detailed order that contained requirements for citations to the record on summary judgment. See DE 6. Plaintiff complied with the Court's requirements. Defendants did not. For example, in the Court's order, the Court required a respondent to clearly specify whether a fact was disputed and, if so, to set forth the evidentiary basis for the dispute. The Court provided a visual example:
MOVANT'S STATEMENT OF MATERIAL FACTS
1. Blackacre is owned by Movant. Exhibit B, ¶ 2.
2. Blackacre is currently under contract for sale. Exhibit C. pgs. 2-4.
A respondent's statement of material facts must clearly respond to each of the foregoing:
RESPONDENT'S STATEMENT OF DISPUTED FACTS
Paragraph 2: Disputed. The contract for sale was never executed. Exhibit A, ¶ 5.
DE 6 at 10. The Court also ordered that after a respondent had clearly conceded or contested each of the movant's statements of material fact, the respondent could then provide additional facts. Id. Defendants' response (on many key issues) to Plaintiff's statement of material facts does not clearly specify whether Plaintiff's facts are contested. Two examples of Defendants' lack of clarity are below. Plaintiff contends the following in its statement of material facts:
DE 93 at 6 (citations omitted).
In response, Defendants do not specify whether the facts quoted above are contested or conceded. Instead of putting the Court on notice of whether Plaintiff's facts are contested, Defendants set forth a series of additional facts, which contravene the Court's order ofrequirements. Because Defendants have failed to inform the Court as to whether Plaintiff's facts are contested, the Court has attempted to parse the text of Defendants' response to attempt to guess whether Defendants concede or refute Plaintiff's facts, however, none of Defendants' additional facts are germane to the Court's inquiry:
MAGER met with FLAX numerous times to discuss MAGER building the residence before JWN was ever involved. MAGER and FLAX were in agreement as to the type of construction necessary for the home prior to JWN's involvement. FLAX decided to change his lender to Seacoast Bank. MAGER was not a qualified contractor for Seacoast Bank, but suggested JWN, who was qualified with Seacoast Bank, to be hired to pull the permit. JWN is an approved builder for Seacoast Bank. MAGER approached JWN and offered JWN $10,000.00 to enter into a written contract with FLAX and pull the permit so that the financing could go through Seacoast. JWN was not to have any other responsibilities in the project including performing the construction work or supervising performance of the construction work.
DE 100 at 3 (citations omitted). Defendants' response does not clearly concede or contest Plaintiff's statements of material fact quoted above. Instead, Defendants offer additional facts. Defendants were required to offer additional facts after Defendants had conceded or contested Plaintiff's own statements of material fact. Defendants' lack of clarity extends to multiple, critical, statements of fact submitted by Plaintiff. For example, Plaintiff sets forth the following critical supported fact:
James Newman, qualifying agent for JWN, signed the permit for the Project.
DE 93 at 7. (citation omitted). In response, Defendants again do not clearly concede or contest this fact, and instead respond as follows:
NEWMAN is a general contractor and is the principal owner of JWN.
DE 100 at 3 (citation omitted). This fact is not germane to the Court's inquiry as to whether JWN signed a permit. Because Defendants do not clearly inform the Court of the evidentiary basis uponwhich many of Plaintiff's statements of fact are contested, the Court must guess as to whether Defendants' additional facts were meant to contest one of Plaintiff's facts or whether Defendants' facts were meant to simply bolster Defendants' case on other grounds. This lack of clarity is precisely the reason the Court entered its detailed order of requirements.
Because the Court cannot discern the evidentiary basis upon which Defendants challenge many of Plaintiff's statements of material fact, because Defendants' response to Plaintiff's statement of material facts does not clearly delineate additional facts from facts in opposition to Plaintiff's statement, and because Defendants have failed to comply with the Court's order of requirements, the Court deems several of Plaintiff's statements of material fact admitted. See Local Rule 56.1(b) () (emphasis added). The Court will note the specific facts it deems admitted in its analysis, infra.
Plaintiff contends that it is not obligated to indemnify1 or defend JWN because, pursuant to the contracts for insurance in this case, JWN's insurance policies do not provide coverage for the following reasons: (i) the insurance policies contained a "your work" exclusion provision and (ii) the "your work" exclusion provision applies to the facts of this case. More specifically, the insurance policies in this case do not apply to: "'Property damage' to 'your work' arising out of it or any part of it and included in the 'products-completed operations hazard.'" DE 93 at 4. The term 'your work' is a defined term in the policies, and is defined in part as "work or operations performed by you or on your behalf." Id. at 3. The term "property damage" is also a defined term,and is defined in part as "physical...
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