Shelby Mut. Ins. Co. v. LaMarche, 78-1662
| Decision Date | 18 May 1979 |
| Docket Number | No. 78-1662,78-1662 |
| Citation | 371 So.2d 198 |
| Parties | The SHELBY MUTUAL INSURANCE CO., Appellant, v. Philip J. LaMARCHE and Bette LaMarche, his wife, and Clearwater Prestige Homes, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Stephen C. Chumbris of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Petersburg, for appellant.
Jan G. Halisky of Griffin, Uber & Halisky, Clearwater, for appellees Philip J. LaMarche and Bette LaMarche.
N. S. Gould of Phillips, McFarland, Gould, Wilhelm & Wagstaff, Clearwater, for appellee Clearwater Prestige Homes, Inc.
Appellant Shelby Mutual Insurance Company (Shelby) issued a general liability policy to appellee Clearwater Prestige Homes, Inc. (Homes). The policy provided in part The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damage because of
Coverage A. bodily injury or
Coverage B. property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company's liability has been exhausted by payment of judgments or settlements.
This insurance does not apply:
(a) to liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured's products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;
(n) to property damage to the named insured's products arising out of such products or any part of such products;
(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith. . . .
The following definitions were included in the policy
"bodily injury" means bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom;
"completed operations hazard" includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. "Operations" include materials, parts or equipment furnished in connection therewith.
"named insured's products" means goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, including any container thereof (other than a vehicle), but "named insured's products" shall not include a vending machine or any property other than such container, rented to or located for use of others but not sold;
"occurrence" means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured;
"products hazard" includes bodily injury and property damage arising out of the named insured's products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others;
"property damage" means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period. . . .
On April 28, 1972, appellees, Philip J. and Bette LaMarche and Homes, entered into a written contract whereby Homes agreed to build a house for the LaMarches for a price of $41,721. The eighth paragraph of that contract provided:
The Contractor guarantees all workmanship and material. This guarantee is in exclusion of and in lieu of all other guarantees or warranties, and liability herein terminates one year from date of delivery, except with regard to the basic structural components of the home on which liability...
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