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Amerisure Ins. Co. v. Auchter Co.

United States District Court for the Middle District of Florida, Jacksonville Division

March 30, 2017, Decided; March 30, 2017, Filed

Case No. 3:16-cv-407-J-39JRK

Opinion

ORDER

This declaratory judgment action is before the Court on Landmark American Insurance Company's ("Landmark") Motion [*2]  for Summary Judgment on the EIFS Exclusion. (Doc. 90; Motion). The parties have filed responses, replies and sur-replies to the Motion, and the Motion is ripe for consideration.1 At issue is whether the "EIFS Exclusion" relating to an "'exterior insulation and finish system' (EIFS) commonly referred to as synthetic stucco" (Doc. 24-6 at 32), found in Landmark's Commercial General Liability insurance policies applicable to the construction of an office building, precludes coverage.

I. Background

A. The Project

This dispute between the parties concerns insurance coverage for defects and delays in connection with the construction of a 13-story office building in Jacksonville, Florida, which caused damage to the property owner Riverside Avenue Partners, Ltd. ("RAP"). On September 21, 2005, RAP entered into a construction contract with The Auchter Company ("Auchter") ("RAP-Auchter Construction Contract") for the construction of a 13-story office building referred to as the Everbank Plaza Building. (See Doc. 24-1 at 2; "RAP Lawsuit Final Judgment"); (Doc. 24-3 at 3; "RAP Amended Complaint"); (Doc. 75-2 at 12; RAP-Auchter Construction Contract"). ("Project"). The original contact price was $28,947,593.00, (Doc. 24-3 at 3); (Doc 116-9), and the date for commencement of work on the Project was July 14, 2005. (Doc. 24-3 at 4).

In accordance with the RAP-Auchter Construction [*4]  Contract, Arch Insurance Company ("Arch") executed payment and performance bonds as Auchter's surety, guaranteeing the obligations of Auchter under the RAP-Auchter Construction Contract. (Doc. 24-1 at 3, 6); (Doc. 24-3 at 3); (Docs. 51-6, 51-7; Arch Payment Bond and Performance Bond (collectively "Bonds") to Auchter). The Bonds incorporated the provisions of the RAP-Auchter Construction Contract.

Auchter entered into a subcontract with TSG Industries, Inc. ("TSG") on June 15, 2006, for TSG to perform work on the Project in connection with the Everbank Plaza Building's external glass and glazing system. (Doc. 24-2; TSG Subcontract). Schedule "B" of the TSG Subcontract described "the materials to be furnished and the work to be done" by TSG pursuant to the TSG Subcontract. (Doc. 24-2 at 2). Schedule "B" defined TSG's Scope of Work to

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2017 U.S. Dist. LEXIS 185753 *

AMERISURE INSURANCE COMPANY and AMERISURE MUTUAL INSURANCE COMPANY, Plaintiffs, vs. THE AUCHTER COMPANY, ARCH INSURANCE COMPANY, LANDMARK AMERICAN INSURANCE COMPANY, TSG INDUSTRIES INC., AND B & B OF DUVAL COMPANIES, INC., etc., Defendants.

Prior History: Amerisure Ins. Co. v. Auchter Co., 2017 U.S. Dist. LEXIS 185752 (M.D. Fla., Mar. 30, 2017)

CORE TERMS

coverage, Lawsuit, exterior, indemnify, installed, Subcontract, contractor, intrusion, subcontractor, finish, illusory, windows, endorsement, insulation, estopped, estoppel, unambiguous, Glass, stucco, curtain, caulk, Counterclaim, Settlement, ambiguity, repair, roof, reimbursement, prejudiced, quotation, fixture