Opinion
No. 99-166.
Opinion filed June 9, 1999.
An Appeal from a non-final order from the Circuit Court for Dade County, Thomas S. Wilson, Jr., Judge, L.T. No. 96-8244.
Denise V. Powers, for appellant.
Freshman, Freshman Traitz and Jerald A. Freshman and Jay M. Levy, for appellee.
Before NESBITT, JORGENSON, and LEVY, JJ.
This is a non-final appeal from a trial court Order granting Appellee's, Tripp Construction, Inc. ("Tripp"), Motion for Summary Judgment and its finding that Appellant, Auto Owners Insurance Company ("Auto Owners Insurance"), owes Tripp the duty to defend in the class action Complaint brought by the plaintiff homeowners ("the homeowners").
The homeowners brought suit against Tripp, a general contractor, for construction defects to their home. The specific damages alleged by the homeowners related to repairing Tripp's defective workmanship. Auto Owners Insurance, Tripp's insurer, denied that the damages claimed by the homeowners were covered by the comprehensive general liability policy issued to Tripp and thereby refused to defend Tripp. Tripp brought a declaratory action against Auto Owners Insurance seeking a determination of coverage. Both Tripp and Auto Owners Insurance moved for summary judgment. The trial court found that a fair reading of the allegations indicated there was coverage for at least part of the claim and granted Tripp's Motion for Summary Judgment. Auto Owners Insurance appeals, arguing that the language in the class action Complaint is insufficient to either create liability on the part of the insurance company or to require the insurance company to defend Tripp in the lawsuit filed by the homeowners. We agree and, accordingly, reverse.
In order for the duty of Auto Owners Insurance to defend Tripp to arise, the allegations contained within the four corners of the Complaint filed by the homeowners must set forth a cause of action that seeks recovery for the type of damages that are covered by the insurance policy in question. Home Owners Warranty Corp. v. Hanover Ins. Co., 683 So.2d 527 (Fla. 3d DCA 1996). Comprehensive general liability insurance policies, like the insurance policy in question here, only protect againstpersonal injury or damages to personal property which mightresult from the defective workmanship.LaMarche v. Shelby Mutual Ins. Co., 390 So.2d 325, 326 (Fla. 1980). The policy does not afford coverage for the repair of the defective workmanship itself. LaMarche, 390 So.2d at 326-27. The Complaint involved in the instant case seeks damages to repair the defective workmanship. The only language in the Complaint to which Tripp could point to thatmight suggest the Complaint was seeking the type of damages that would be covered by the policy is the paragraph wherein "other economic damages" are being sought. That vague language is not sufficient.
For coverage and the duty to defend to arise, the Complaint would have to allege that there was damage to some personal property, or bodily injury to a person, that resulted from the defective workmanship. See LaMarche, 390 So.2d at 326; Home Owners Warranty Corp. v. Hanover Ins. Co., 683 So.2d 527, 528-29 (Fla. 3d DCA 1996). It must be kept in mind, however, that the Complaint that we are dealing with in this case was filed by the homeowners seeking to recover money from the builder, Tripp. Consequently, the homeowners were not concerned with alleging the "magic words" necessary to require Auto Owners Insurance to provide coverage and a defense for Tripp. Similarly, since the Complaint that determines Auto Owners Insurance's duty to defend (or lack thereof) was filed by the homeowners, Tripp is unable to cause the said Complaint to be amended to include the above-described "magic words".
Accordingly, we reverse the Order granting Tripp's Motion for Summary Judgment and remand the matter to the trial court with directions to grant the Motion for Summary Judgment filed by Auto Owners Insurance Company.
Reversed and remanded with directions.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.