Nat'l Trust Ins. Co. v. Graham Bros. Constr. Co.

• Citation: 916 F.Supp.2d 1244
• Decision Date: 04 January 2013
• Docket Number: Case No. 8:11–cv–1437–T–33MAP.
• Parties: NATIONAL TRUST INSURANCE COMPANY, Plaintiff, v. GRAHAM BROTHERS CONSTRUCTION COMPANY, INC., Specialized Services, Inc., Len–Verandahs, LLP, and Ted Graham, Defendants.
• Court: U.S. District Court — Middle District of Florida

916 F.Supp.2d 1244

NATIONAL TRUST INSURANCE COMPANY, Plaintiff,

v.GRAHAM BROTHERS CONSTRUCTION COMPANY, INC., Specialized Services, Inc., Len–Verandahs, LLP, and Ted Graham, Defendants.

Case No. 8:11–cv–1437–T–33MAP.

United States District Court,

M.D. Florida,

Tampa Division.

Jan. 4, 2013.

Stephanie F. Glickauf, Robert M. Darroch, Goodman McGuffey Lindsey & Johnson, LLP, Atlanta, GA, Jason W. Hill, Shutts & Bowen, LLP, Michelle Evans Concepcion, Goodman McGuffey Lindsey & Johnson, LLP, Orlando, FL, for Plaintiff.

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, District Judge.

This cause is before the Court pursuant to Plaintiff National Trust Insurance Company's Motion for Summary Judgment on Plaintiff's Complaint and Defendant Len–Verandahs' Counterclaim (Doc. # 99), filed on September 14, 2012. Len–Verandahs filed a response in opposition to the motion (Doc. # 115) on September 29, 2012. Also before the Court is Len–Verandahs' Motion for Summary Judgment Against National Trust Insurance Company (Doc. # 108), filed on September 15, 2012. National Trust filed a Motion to Strike Len–Verandahs, LLP's Motion for Summary Judgment (Doc. # 109) on September 19, 2012, to which Len–Verandahs filed a response in opposition (Doc. # 110) on September 24, 2012. National Trust filed a response in opposition to Len–Verandahs' Motion for Summary Judgment (Doc. # 112) on September 28, 2012.

After due consideration, and for the reasons that follow, National Trust's motion for summary judgment is granted, National Trust's motion to strike Len Verandah's summary judgment motion is granted, and Len Verandah's summary judgment motion is stricken.

I. Factual and Procedural Background

National Trust issued a commercial general liability insurance policy, Policy No. CPP0004212, to defendant Graham Brothers Construction Company, Inc. for the period of November 1, 2004, to November 1, 2006 (“the Policy”). (Doc. # 6 at ¶ 9). Defendant Specialized Services, Inc. was added to the Policy as an insured in 2005. ( Id. at ¶ 11).

In 2005, Specialized Services was awarded a contract with Len–Verandahs to perform site preparation work at a residential development project known as The Verandahs. ( Id. at ¶ 13). Pursuant to the contract, Specialized Services was to perform removal of vegetation, deep clearing, grubbing, and preparation of pads for homesites. ( Id. at ¶ 15). Specialized Services' affiliate company, Graham Brothers, performed much of the actual work. (Buzzell Dep. Doc. # 99–5 at 3). Robert Buzzell served as the project manager for Specialized Services, and Kris Graham, an employee of Graham Brothers, served as field superintendent on the project. ( Id. at 2, 5).

In January of 2006, based on an inspection by Faulkner Engineering Services, Len–Verandahs discovered that Specialized Services and Graham Brothers had buried organic material, including stumps and roots, on the lots instead of removing them, had used large clumps of clay from their excavation of ponds as part of the structural fill, and had placed excavated top soil, stumps and roots (“strippings”) in the back of the project's lots. (Doc. # 99–15; Gregos Dep. Doc. # 99–6 at 3, 6–7). Following the inspection, Faulkner Engineering's representative instructed Kris Graham not to bury the strippings on the lots, and Graham indicated that he understood he was not to bury this material on-site. (Gregos Dep. Doc. # 99–6 at 3, 6; Graham Dep. Doc. # 99–10 at 3–4).

However, at a second inspection in April 2006, Faulkner Engineering “observed the contractor placing fill containing roots on pads during the finish grading work” and “advised the contractor's field representatives to not place fill with significant roots on the pads.” (Doc. # 99–18 at 1). Faulkner Engineering inspected the project site again on May 8 through 11, 2006, and observed “consciously buried roots and trees in the back of lots.” (Faulkner Dep. Doc. # 99–7 at 3). Faulkner recommended that Specialized Services “root rake” the areas to remove unwanted roots and stumps from the project. (Doc. # 99–15 at 3). Specialized Services performed the remedial root rake work from May to August 2006 ( Id. at 4–10), and Specialized Services and Graham's work on the project was completed on August 2, 2006. (Cox Dep. Doc. # 99–8 at 3).

In October of 2006, buried roots were again discovered when one of the project's lots was being excavated for installation of a pool. (Doc. # 99–21; Doc. # 99–33 at 1). Len–Verandahs' parent company, Lennar Homes, notified Specialized Services of the problem on October 16, 2006 (Doc. # 99–21), and on December 20, 2006, requested Specialized Services to remediate the defective lots. (Doc. # 99–23). Specialized Services responded to the request by stating that “the root issue ... has been addressed and taken care of by SSI in the months of June, July and early August with Faulkner Engineering present to verifythe cleanup” (Doc. # 99–22), and that Specialized Services “has met the contract requirements for this project.” (Doc. # 99–24 at 2).

Len–Verandahs informed Specialized Services on December 11, 2006, that it would remediate the lots itself and would hold Specialized Services liable for the remediation costs. (Doc. # 99–25 at 2–3). Len–Verandahs subsequently remediated the defective lots (Doc. # 99–26), and the project was completed in 2011. (Vevea Dep. Doc. # 99–34).

On May 27, 2008, Len–Verandahs filed suit in the Circuit Court for the Sixth Judicial Circuit in and for Pasco County, Florida, against Specialized Services for breach of contract and indemnification and against Ted Graham for negligence related to the work done on the project. (Doc. # 6 at ¶ 13). National Trust was not notified about the lawsuit until September of 2009. (Ginn Dep. Doc. # 99–29 at 2). The court entered an amended final judgment on September 9, 2010, in favor of Len–Verandahs and against Specialized Services in the amount of $1,956,355.37. (Doc. # 99–42).

Len–Verandahs filed suit against Graham Brothers on July 19, 2010. (Doc. # 6 at ¶ 19). Graham Brothers filed for bankruptcy protection on October 5, 2011 (Doc. # 9), which automatically stayed the case for a period of time. Thus, Len–Verandahs' lawsuit against Graham Brothers is still pending.

National Trust initiated this declaratory judgment action on August 10, 2010, in the United States District Court for the Southern District of Georgia. (Doc. # 1). In its second amended complaint, filed on August 24, 2010, National Trust seeks a declaration that the Policy does not provide coverage for the claims asserted by Len–Verandahs against Specialized Services, Graham Brothers, and Ted Graham in the two underlying lawsuits. (Doc. # 6 at ¶ 57). Upon granting Len–Verandahs' motion to transfer venue, the case was transferred to this Court on June 29, 2011. (Doc. 28–29). On March 20, 2012, with leave of the Court, Len–Verandahs filed an amended answer to assert a counterclaim against National Trust. (Doc. # 65). The counterclaim contains one count for breach of contract regarding National Trust's alleged failure to pay the final judgment entered in the Specialized Services lawsuit and one count for declaratory judgment regarding Len–Verandahs' entitlement to recover damages sought in the pending Graham Brothers lawsuit. (Doc. # 65).

On August 1, 2012, the Court dismissed Specialized Services without prejudice pursuant to Federal Rule of Civil Procedure 4(m) because National Trust failed to serve Specialized Services with the summons and complaint within 120 days of filing the complaint. (Doc. # 89). The Court likewise dismissed Ted Graham for the same reason on August 27, 2012. (Doc. # 93).

Now before the Court are National Trust's and Len–Verandahs' motions for summary judgment as to both National Trust's claims and Len–Verandahs' counterclaim, as well as National Trust's motion to strike Len–Verandahs' summary judgment motion as untimely filed.

II. Motion to Strike

A district court is required to issue a scheduling order that limits “the time to join other parties, amend the pleadings, complete discovery, and file motions.” Fed.R.Civ.P. 16(b). “This order controls the course of the action ...” Fed.R.Civ.P. 16(d), and may be modified “only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). “This good cause standard precludes modification unless the schedule cannot ‘be met despite the diligence of the party seeking the extension.’” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir.1998) (quoting Fed.R.Civ.P. 16 advisory committee note). A district court retains “broad discretion in deciding ... whether to consider untimely motions for summary judgment.” Enwonwu v. Fulton–Dekalb Hosp. Auth., 286 Fed.Appx. 586, 595 (11th Cir.2008).

National Trust moves to strike Len–Verandahs' summary judgment motion as untimely because it was filed on September 15, 2012, one day after the Court's deadline for filing dispositive motions. (Doc. # 109). National Trust points out that the dispositive motions deadline was twice extended at Len–Verandahs' request, yet Len–Verandahs was still unable to meet the extended deadline and failed to request a third extension of the deadline. ( Id. at 2). Len–Verandahs blames the late filing of its motion on the fact that its counsel's daughter was sick and absent from daycare on the Tuesday and Wednesday of the week the motion was due on Friday, which caused counsel to work shorter hours than usual on those days to help out at home. (Doc. # 110 at 6). Counsel states that he worked all day and night on Thursday and Friday in an attempt to complete the motion by the Friday deadline. ( Id.).

Based on the fact that National Trust timely filed its summary judgment motion on September 14, 2012, National Trust argues that allowing the late-filed summary judgment motion would provide Len–Verandahs an unfair advantage because Len–Verandahs would have had an extra day to review National Trust's motion and tailor its own motion to...