[CLC-Discussion] ACTIONLINE ARTICLE NEEDED ASAP

Fri Apr 17 08:01:43 PDT 2015

Welcome to use this short Carithers write up.

The Eleventh Circuit Court of Appeals recently reaffirmed Florida as an injury-in-fact trigger state in Carithers v. Mid-Continent Cas. Co., Case No. 14-11639 (11th Cir. April 7, 2015)<http://media.ca11.uscourts.gov/opinions/pub/files/201411639.pdf>.  However, the Court did not end the manifestation versus injury-in-fact debate, choosing instead not to address the appropriate trigger where it is “difficult (or impossible) to determine when the property was damaged.”

The Eleventh Circuit is based in Atlanta, Georgia.  It has appellate jurisdiction over all United States District Courts in Alabama, Georgia and Florida.

In Carithers, Mid-Continent issued a standard form CG 00 01 liability policy to a general contractor.  The owners claimed damages for the cost to repair the brick exterior, tile and mudbase on an exterior balcony and garage caused by water intrusion through the balcony. The trial court found coverage for the cost to repair all of the items and for the contractor’s defense fees.  The appellate court affirmed, in part, and reversed, in part.

The Court addressed several interesting issues relating to the duties to defend and indemnify a general contractor for construction defects under a standard form policy. First, the Court found that when the underlying complaint is ambiguous and does not provide the carrier with sufficient information to apply a particular trigger theory, the carrier has a duty to defend all claims.

Second, the Court held that the burden is on the plaintiff seeking coverage to establish a loss within the terms of the policy by distinguishing a subcontractor’s defective work from damage caused by a subcontractor’s defective work.  With regard to the damage to the brick, the Court reversed the damage award because the owners had not proven that the application of the brick coating – the alleged cause of damage to the brick – was the work of a different subcontractor than the installer of the brick.

With regard to the tile and mudbase on the balcony, the Court reversed the damage award for the same reason.  The owner claimed that inadequate adhesive and mudbase caused property damage to the tile.  Reaffirming Amerisure Mutual Ins. Co. v. Auchter Co., 673 F.3d 1294 (11th Cir. 2012)<http://media.ca11.uscourts.gov/opinions/pub/files/201010960.pdf>, the Court held that it was immaterial whether the tile was purchased directly by the owner or by the subcontractor.  Instead, the pertinent inquiry was whether the tile and mudbase were installed by the same subcontractor.

Finally, with regard to “rip and tear,” the Court held that the cost to demolish and repair the defective balcony was covered property damage because it was necessary to repair the damage to the non-defective garage.  The Court held that this was part of the “cost of repairing damage caused by the defective work . . . “, quoting U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 889 (Fla. 2007).  Arguably, this holding works against the public policy of denying coverage to the contractor for shoddy work by creating coverage for the cost to repair defective work that would not otherwise exist.

Overall, this decision allows insurers and insureds to more accurately assess covered and uncovered damages in a standard CGL policy issued to a general contractor.

[cid:image39d1b4.PNG at 951d8e41.4095bf14]
   www.csklegal.com<http://www.csklegal.com>    George R. Truitt, Esq.
George.Truitt at csklegal.com<mailto:George.Truitt at csklegal.com>
Tel:    305-350-5331
Fax:    305-373-2294
Cole, Scott & Kissane Building
9150 South Dadeland Boulevard, Suite 1400
Miami, Florida 33156<https://maps.google.com/maps?q=9150%20S%20Dadeland%20Blvd%2C%20Suite%201400%20miami%2Cfl%2033156&bav=on.2,or.&bvm=bv.57155469,d.cWc,pv.xjs.s.en_US.v-r5CthikH8.O&biw=792&bih=484&wrapid=tlif138626915620421&um=1&ie=UTF-8&hl=en&sa=N&tab=wl>
        [cid:image4c0572.JPG at dfaecb56.43be6c9a]

From: Sean A. Mickley [mailto:smickley at gouldcooksey.com]
Sent: Friday, April 17, 2015 10:38 AM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] ACTIONLINE ARTICLE NEEDED ASAP

Any articles which can be submitted ASAP? The article cannot pertain to Arbitration rules and/or procedures.

Maybe someone would like to write a short article on the recent Carithers decision discussed at our last CLC meeting????

[Description: newlogo]

Sean A. Mickley, Esq.

Gould Cooksey Fennell

979 Beachland Boulevard

Vero Beach, FL 32963

Telephone  772-231-1100      Fax 772-231-2020

smickley at gouldcooksey.com<mailto:smickley at gouldcooksey.com>

The information contained in this transmission is attorney privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this transmission in error, do not read it. Please immediately reply to the sender that you received this communication in error and then delete it. Thank you.

Circular 230 Disclosure: In compliance with the requirements imposed by the Internal Revenue Service pursuant to IRS Circular 230, we inform you that any tax advice contained in this communication(including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.

Confidentiality Notice: This communication is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521. It is legally privileged (including attachments) and is intended only for the use of the individual(s) or entity(ies) to which it is addressed. It may contain information that is confidential, proprietary, privileged, and/or exempt from disclosure under applicable law. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon this information by persons or entities other than the intended recipient is strictly prohibited. If you have received this communication in error, please notify us so that we may take the appropriate action and avoid troubling you further. If you are not the intended recipient(s), please destroy this message, and any attachments, and notify the sender by return e-mail. Thank you for your cooperation.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20150417/e6da5d01/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 42008 bytes
Desc: image001.jpg
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20150417/e6da5d01/image001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image39d1b4.PNG
Type: image/png
Size: 14014 bytes
Desc: image39d1b4.PNG
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20150417/e6da5d01/image39d1b4.PNG>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image4c0572.JPG
Type: image/jpeg
Size: 13495 bytes
Desc: image4c0572.JPG
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20150417/e6da5d01/image4c0572.JPG>