Summary
finding that HC Waterford was not binding authority, and that it was "inapposite to Florida law interpreting insurance policies"
Summary of this case from Refrigeration & Elec. Sys., Inc. v. Maxum Indem. Co.Opinion
CASE NO. 20-61349-CIV-DIMITROULEAS
2021-09-20
The CINCINNATI SPECIALTY UNDERWRITERS INSURANCE COMPANY, Plaintiff, v. KNS GROUP, LLC and GM&P Consulting and Glazing Contractors, Inc., Defendants.
Neil Anthony Covone, Susan Jane Cole, Bice Cole Law Firm, P.L., Coral Gables, FL, Caryn Lynn Bellus, Kubicki Draper, Miami, FL, David Arthur Glenny, Bice Cole Law Firm, Ocala, FL, for Plaintiff. Alexandra Sierra-De Varona, De Varona Law, Boca Raton, FL, for Defendant KNS Group, LLC. Justin Michael Thomas, Boyle, Leonard, P.A., Fort Myers, FL, for Defendant GM&P Consulting and Glazing Contractors, Inc. Sina Bahadoran, Eftihios Evan George Andronis, Clyde & Co., Miami, FL, for Defendant Gemini Insurance Company.
Neil Anthony Covone, Susan Jane Cole, Bice Cole Law Firm, P.L., Coral Gables, FL, Caryn Lynn Bellus, Kubicki Draper, Miami, FL, David Arthur Glenny, Bice Cole Law Firm, Ocala, FL, for Plaintiff.
Alexandra Sierra-De Varona, De Varona Law, Boca Raton, FL, for Defendant KNS Group, LLC.
Justin Michael Thomas, Boyle, Leonard, P.A., Fort Myers, FL, for Defendant GM&P Consulting and Glazing Contractors, Inc.
Sina Bahadoran, Eftihios Evan George Andronis, Clyde & Co., Miami, FL, for Defendant Gemini Insurance Company.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
WILLIAM P. DIMITROULEAS, United States District Judge
This Matter is before the Court on The Cincinnati Specialty Underwriters Insurance Company ("Cincinnati")’s Motion for Summary Judgment Against KNS Group, LLC [DE 49] ("Cincinnati's Motion as to KNS"), Cincinnati's Motion for Summary Judgment Against GM&P Consulting and Glazing Contractors, Inc. [DE 73] ("Cincinnati's Motion as to GM&P"), Cincinnati's Motion for Partial Summary Judgment as to Counts II and III of Intervening Plaintiff Gemini's Complaint [DE 75] ("Cincinnati's Motion as to Gemini"), KNS Group, LLC ("KNS")’s Motion for Summary Judgment Against Cincinnati [DE 77] ("KNS's Motion"), Gemini Insurance Company ("Gemini")’s Motion for Summary Judgment Against Cincinnati [DE 79] ("Gemini's Motion"), and GM&P Consulting & Glazing Contractors, Inc. ("GM&P") Motion for Summary Judgment Against Cincinnati [DE 80] ("GM&P's Motion"). The Court has considered the Motions [DEs 49, 73, 75, 77, 79, 80], the Responses [DEs 60, 62, 87, 89, 91, 94, 96], the Replies [DEs 70, 71, 100, 101, 102, 103, 104, 106, 107], the statements of material fact [DEs 50, 61, 63, 72, 74, 76, 78, 81, 82, 83, 88, 90, 92, 95, 97, 105, 108], and is otherwise fully advised in the premises.
I. BACKGROUND
Except where otherwise noted, facts are taken from uncontested portions of Cincinnati's Statement of Facts ("Cincinnati SMF") [DE 50] and KNS’ Statement of Facts ("KNS SMF") [DE 78]. The Statements of Fact and responses thereto include various citations to specific portions of the record. Any citations herein to the statements of facts and responses thereto should be construed as incorporating those citations to the record.
Plaintiff Cincinnati issued KNS two commercial general liability policies of insurance ("Policies") which are the topic of the instant litigation. Cincinnati contends that it does not have a duty to defend or indemnify KNS for the claims brought by GM&P in the Underlying Action.
A. Underlying Action
In the underlying action, PPE Casino Resorts Maryland, LLC ("PPE") asserts GM&P was negligent in furnishing materials and installing the glass façade in the construction of the Maryland Live! Casino and Hotel (the "Project"). Cincinnati SMF ¶ 4, 5, 8 [DE 50] (herein referred to as the "Amended Complaint"). GM&P was a subcontractor on the Project who had been retained to furnish labor and material for exterior glazing on the Project. Cincinnati SMF ¶ 4,5 [DE 50]
In turn, GM&P brought a third-party complaint asserting that KNS was negligent in the performance of glazing installation work. Cincinnati SMF ¶ 9 [DE 50]. The third-party complaint brings claims against KNS for breach of contract, contractual indemnification, negligence, common law indemnification, and contribution (herein referred to as the "Underlying Action" or "Third-Party Complaint"). Among the allegations, the Third-Party Complaint alleges that GM&P failed to install non-conforming bolts in concrete slabs, failed to advise some concrete slabs were out of tolerance, and failed to properly layout the means of fastening glass panels to the "18th level structural steel support system." KNS SMF ¶ 6 [DE 78]. Specifically, GM&P alleges that, if PPE's allegations regarding faulty construction are proven true, then KNS breached its contract with GM&P by failing to properly perform its work.
GM&P entered into a subcontract with KNS on or about June 5, 2017 for KNS to perform "glazing of glass and installation of window walls". Cincinnati SMF ¶ 11 [DE 50]. KNS performed work on the Project between June and October 2017 when GM&P replaced KNS with another subcontractor. Cincinnati SMF ¶ 10 [DE 50]. GM&P terminated its contract with KNS before KNS completed its work and retained a substitute subcontractor to repair, replace and remedy the work KNS had done. Cincinnati SMF ¶ 10 [DE 50].
B. Present Litigation
This matter is a declaratory judgment action to determine the rights of Defendants KNS and GM&P under commercial general liability insurance policies issued by Plaintiff Cincinnati to KNS. In its complaint, Cincinnati alleged the following causes of actions against Defendants: Count I—Declaratory Judgment against KNS (duty to defend); Count II—Declaratory Judgment against KNS (duty to indemnify); Count III—Declaratory Judgment against GM&P (duty to defend); and Count IV—Declaratory Judgment against GM&P (duty to indemnify). See [DE 1]. GM&P has filed a Counterclaim [DE 25] seeking a declaration that Cincinnati owes to GM&P a duty to defend GM&P as to the claims asserted by PPE in the underlying Amended Complaint and that Cincinnati owes to GM&P a duty to indemnify GM&P for the damages awarded in favor of PPE and against GM&P in the underlying Amended Complaint. See [DE 25]. On January 13, 2021 Gemini Insurance Company ("Gemini"), who issued its own insurance policy to GM&P, filed a Complaint in Intervention seeking a determination that GM&P is an insured under the Cincinnati policy and that the Cincinnati policy is primary to the Gemini policy. See [DE 48].
All Parties have filed motions for summary judgment adjudicating the respective rights of various parties under the contract.
II. STANDARD OF REVIEW
Under Rule 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears "the stringent burden of establishing the absence of a genuine issue of material fact." Sauve v. Lamberti , 597 F. Supp. 2d 1312, 1315 (S.D. Fla. 2008) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).
"A fact is material for the purposes of summary judgment only if it might affect the outcome of the suit under the governing law." Kerr v. McDonald's Corp. , 427 F.3d 947, 951 (11th Cir. 2005) (internal quotations omitted). Furthermore, "[a]n issue [of material fact] is not ‘genuine’ if it is unsupported by the evidence or is created by evidence that is ‘merely colorable’ or ‘not significantly probative.’ " Flamingo S. Beach I Condo. Ass'n, Inc. v. Selective Ins. Co. of Southeast , 492 F. App'x 16, 26 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "A mere scintilla of evidence in support of the nonmoving party's position is insufficient to defeat a motion for summary judgment; there must be evidence from which a jury could reasonably find for the non-moving party." Id. at 26-27 (citing Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ). Accordingly, if the moving party shows "that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party" then "it is entitled to summary judgment unless the nonmoving party, in response, comes forward with significant, probative evidence demonstrating the existence of a triable issue of fact." Rich v. Sec'y, Fla. Dept. of Corr. , 716 F.3d 525, 530 (11th Cir. 2013) (citation omitted).
"When the only question a court must decide is a question of law, summary judgment may be granted." Saregama India Ltd. v. Mosley , 635 F.3d 1284, 1290 (11th Cir. 2011). "Contract and statutory interpretation are both questions of law appropriately decided on summary judgment." Bastian v. United Servs. Auto. Ass'n , 150 F. Supp. 3d 1284, 1288 (M.D. Fla. 2015).
III. DISCUSSION
When construing insurance policies, federal courts are required to apply state law. Travelers Indem. Co. v. PCR Inc. , 326 F.3d 1190, 1193 (11th Cir. 2003). Under Florida law, "[i]t is well settled that an insurer's duty to defend its insured against a legal action arises when the complaint alleges facts that fairly and potentially bring the suit within policy coverage." Jones v. Fla. Ins. Guar. Ass'n, Inc. , 908 So. 2d 435, 442–43 (Fla. 2005). "The duty to defend must be determined from the allegations in the complaint." Id. at 443. "Although the alleged facts may fall within the coverage of the policy, if the face of the complaint shows the applicability of an exclusion, the insurer has no duty to defend." O'Rear v. Greenwich Ins. Co. , No. 8:09-CV-1903-T-26TGW, 2010 WL 4867527, at *2–3 (M.D. Fla. Nov. 23, 2010), aff'd , 432 F. App'x 877 (11th Cir. 2011). "Where the application of one or more policy exclusions applies to the face of the complaint, no duty to defend exists, even if the complaint alleges facts that would otherwise give rise to a covered claim." Id. (quoting Chicago Title Ins. Co. v. Northland Ins. Co. , 31 So.3d 214, 216 (Fla. 4th DCA 2010) ).
When interpreting insurance contracts under Florida law, the contract is construed according to its "plain meaning." Mills v. Foremost Ins. Co. , 511 F.3d 1300, 1304 (11th Cir. 2008). The insurance contract is ambiguous if its language lends itself to more than one interpretation. Id. "Ambiguous policy provisions ... should be construed liberally in favor of coverage of the insured and strictly against the insurer." Dickson v. Econ. Premier Assur. Co. , 36 So. 3d 789, 790 (Fla. 5th DCA 2010). Furthermore, ambiguous "exclusionary clauses are construed even more strictly against the insurer than coverage clauses." Auto-Owners Ins. Co. v. Anderson , 756 So. 2d 29, 34 (Fla. 2000). However, "strict construction does not mean ... that clear words may be tortured into uncertainty so that new meanings can be added." State Farm Fire & Cas. Ins. Co. v. Deni Assocs. of Fla., Inc. , 678 So. 2d 397, 401 (Fla. 4th DCA 1996), on reh'g (Aug. 20, 1996), approved, 711 So. 2d 1135 (Fla. 1998). "Only when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction is the rule apposite." Excelsior Ins. Co. v. Pomona Park Bar & Package Store , 369 So. 2d 938, 942 (Fla. 1979).
The Parties agree the Florida law applies to the interpretation of the relevant insurance contracts in this case.
A. The Parties Positions
Plaintiff Cincinnati seeks summary judgment on its claims for declaratory judgment. According to Cincinnati, it does not have a duty to defend or indemnify KNS under the applicable Policies because the insuring agreements, exclusions, definitions and endorsements of the Policies demonstrate the absence of coverage. Specifically, Cincinnati argues that the damages alleged in the Underlying Action are: (1) to "that particular part" of property within the application of Exclusions j(5) or j(6) of the Cincinnati Policies; (2) related to a defect or deficiency in KNS’ work within the application of Exclusion m of the Policies; and (3) related to a breach of contract by KNS within the application of the "Breach of Contract" exclusion endorsement in the Policies. In Cincinnati's Motion as to GM&P, Cincinnati further argues it has no duty to defend or indemnify GM&P because there is no coverage for the named insured (KNS) and/or because the additional insured endorsement does not extend coverage to GM&P in the absence of allegations of vicarious liability. Finally, in Cincinnati's Motion as to Gemini, Cincinnati argues there is no duty to defend or indemnify Gemini's named insured, GM&P, and, further, Florida law prohibits the equitable contribution Gemini seeks from Cincinnati.
In KNS’ Motion, KNS contends that the property damage alleged in the Underlying Action is covered by the Cincinnati Policies, or alternatively, that the record in the Underlying Action has not been sufficiently developed to allow Cincinnati to satisfy its burden of proof that the type of property damage alleged in the Third-Party Complaint is excluded under the Cincinnati Policies.
In GM&P's Motion, GM&P seeks summary judgment declaring that Cincinnati owes both KNS and GM&P a duty to defend in the Underlying Action and that any ruling on the duty to indemnify is premature as the Underlying Action is still ongoing.
In Gemini's Motion, Gemini seeks summary judgment declaring that Cincinnati owes both KNS and GM&P a duty to defend in the Underlying Action, that Cincinnati's coverage is primary to Gemini's coverage, and that Cincinnati owes Gemini equitable contribution.
Because the parties filed cross-motions for summary judgment on overlapping issues, the Court will address the Motions together. Accordingly, the Court first addresses whether the allegations in the Underlying Action bring it under one of the exclusions in the Cincinnati Policies.
B. The Duty to Defend in the Presence of Multiple Defendants
As an initial matter, the Court must address the issue of whether the presence of other defendants in the Third-Party Complaint in the Underlying Action affects Cincinnati's duty to defend. In support of its claims with respect to Exclusion j and Exclusion m, KNS argues that Cincinnati has not demonstrated that the claims in the Third-Party Complaint are not based solely on allegations that the property damage arose out of KNS’ operations. See [DE 60], pp. 4-5. In other words, because the Third-Party Complaint also brings allegations against the architect and the window contractor that replaced KNS, the property damage could have arisen from the operations of other defendants and not KNS, therefore bringing the Underlying Action within coverage.
In response, Cincinnati argues that prevailing law does not require the underlying complaint to allege causes of action only against the insured. See [DE 71], p. 4. Rather, a court considers only the allegations against the insured—not all allegations against all defendants—when determining whether allegations in an underlying complaint fall within an exclusion. Id.
The Court agrees with Cincinnati. Under Florida law, "[t]he duty to defend depends solely on the facts and legal theories alleged in the pleadings and claims against the insured. " Lawyers Title. Ins. V. JDC (Am.) Corp. , 52 F.3d 1575, 1580 (11th Cir. 1995) (citing Nat'l Union Fire Ins. Co. v. Lenox Liquors, Inc. , 358 So. 2d 533, 536 (Fla. 1977) ) (emphasis added); see also Trizec Properties, Inc. v. Biltmore Const. Co. , 767 F.2d 810, 811 (11th Cir. 1985) ("The duty to defend depends solely on the allegations in the complaint filed against the insured.") (applying Florida law). Thus, the presence of other defendants in the Third-Party Complaint does not preclude this Court's analysis.
Nor does it, as KNS alleges, create disputed issues of material fact as whether the property damage in the Underlying Action was the result of other defendants. "The general rule is that an insurance company's duty to defend an insured is determined solely from the allegations in the complaint against the insured, not by the actual facts of the cause of action against the insured, the insured's version of the facts or the insured's defenses." Amerisure Ins. Co. v. Gold Coast Marine Distributors, Inc. , 771 So. 2d 579, 580 (Fla. 4th DCA). A court does not consider the likelihood that a defendant will prevail or what defenses may be available. While there may exist a question of fact regarding the assignment of liability in the Underlying Action, that question does not preclude a determination of the applicability of the exclusions here. This is because the insurer's duty to defend arises "[i]f the allegations of the complaint state facts that bring the injury within the policy's coverage," regardless of the merits of the underlying lawsuit. State Farm Fire and Cas. Co. v. Steinberg , 393 F.3d 1226, 1230 (11th Cir. 2004).
Accordingly, there are no issues of fact which would prevent the Court from determining the duty to defend at this juncture. The Court will now address each of the applicable exclusions in turn.
C. Exclusion j: Damaged Property Exclusion
Under the Policies, Exclusion j(5) excludes coverage for "property damage" to "that particular part of real property on which you or any contractor or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations." [DE 50], Exhibit B, pp. 31, 132. Exclusion j(6) also excludes from coverage damage to "[t]hat particular part of any property that must be restored, repaired or replaced because ‘[the insured's] work was incorrectly performed on it." Id.
The purpose of commercial general liability policies "is to protect against the unpredictable, potentially unlimited liability that can be caused by accidentally causing injury to other persons or their property" and "is not intended to protect business owners against every risk of operating a business." Essex Ins. Co. v. Kart Const., Inc. , 2015 WL 4730540, at *2 (M.D. Fla. Aug. 10, 2015) (quoting Columbia Mutual Insurance Co. v. Schauf , 967 S.W.2d 74, 77 (Mo. 1998) ). Exclusion j(5) is one such "business risk exclusion," "excluding from coverage damage to that particular part of property on which the insured is performing operations." Id.
A threshold issue is whether "property damage" has been properly alleged under the Policies. The Policies define "property damage" as "[p]hysical injury to tangible property, including all resulting use of that property." [DE 50], Exhibit B, p. 42. Cincinnati argues that the damages alleged in the Third-Party Complaint "do not expressly include damage to property apart from issues with the windows and glass façade." See [DE 49], p. 12. Cincinnati cites to a Florida Supreme Court decision, U.S. Fire Ins. Co. v. J.S.U.B., Inc. , 979 So. 2d 871 (Fla. 2007), and an Eleventh Circuit decision, Amerisure Mut. Ins. Co. v. Auchter Co. , 673 F.3d 1294 (11th Cir. 2012), in support of its argument that no property damage is implicated under the Policies if there is no damage beyond faulty workmanship. Specifically, the Eleventh Circuit interpreted the Florida Supreme Court decision and found that "there is no coverage ‘[i]f there is no damage beyond the faulty workmanship,’ i.e., unless the faulty workmanship has damaged some ‘otherwise nondefective’ component of the project." Auchter , 673 F.3d at 1306 (quoting J.S.U.B. , 979 So. 2d at 889 ).
Here, the Third-Party Complaint alleges that "the condition of the glass façade has caused property damage and that there remains a risk of future property damage." See [DE 50], Exhibit C, ¶ 8. While Cincinnati's interpretation that the alleged damages in the Underlying Action relate entirely to KNS’ scope of work may be one reasonable interpretation, this Court cannot speculate that any present "property damage" relates entirely to KNS’ faulty workmanship. Furthermore, the Court finds that allegations of "property damage," albeit non-specific, "fairly and potentially bring the suit within policy coverage." Jones , 908 So. 2d 435, 442-43. While Cincinnati argues that the pleadings must specifically identify damage to some non-defective property before coverage is triggered, this Court rejects such a sweeping requirement. Cincinnati does not cite to any binding case law that requires such a strict construction against the insured. Indeed, such a requirement would contravene the well-founded principle that "[a]ny doubts regarding the duty to defend must be resolved in favor of the insured." See Grissom v. Commercial Union Ins. Co. , 610 So. 2d 1299, 1307 (Fla. 1st DCA 1992). Thus, the Court finds that the Third-Party Complaint in the Underlying Action alleges "property damage" has occurred, bringing such damages potentially within coverage.
The next issue is whether Exclusion j(5) applies to preclude coverage as to KNS. The parties appear to dispute what constitutes "that particular part" of real property in the Underlying Action within the meaning of Exclusion j. Under Cincinnati's interpretation, "that particular part" relates entirely to the windows and glass façade and, therefore, the part of property on which KNS was performing installing operations under the Sub-subcontract. [DE 49], p.8. Conversely, KNS argues that there is a genuine dispute as to whether "that particular part" of real property under the Policies should be understood as the glass façade or whether it should also include the structural support on which the glass façade was to be installed. See [DE 60], p. 6. KNS argues that the property damage alleged in the Third-Party Complaint goes beyond the part of property that was worked upon by KNS, and includes issues with the concrete slabs, among others. Id. Similarly, GM&P argues that the Third-Party Complaint covers an entire curtain wall with many components, not just the window installation. See [DE 62], p. 11.
Both KNS and GM&P rely on Van Ginhoven , a Florida case interpreting an identical CGL exclusion. In Van Ginhoven , the Fifth District Court of Appeal in Florida addressed the question of whether an insurer was obligated to provide coverage for the cost of repairing the damage to a swimming pool that had popped out of the ground after Van Ginhoven drained the pool to make repairs to the surface. American Equity Insurance Co. v. Van Ginhoven , 788 So. 2d 388, 389 (Fla. 5th DCA 2001). The Court held that Exclusion j(5) excluded coverage from all damage to the pool, not just the tiles Van Ginhoven was contracted to repair, because "[a]t the time the damage occurred, Van Ginhoven was not working, or performing operations on, the spots subject to repair, but was draining the entire pool." Id. at 391.
In Kart Construction , the Middle District of Florida interpreted Exclusion j(5), analyzing the reasoning in Van Ginhoven :
Van Ginhoven’ s focus both on Section (j)(5)’s use of ‘on which you ... are performing operations’ and on the insured's operations ‘at the time the damage occurred’ (or ‘when the pool popped’) establishes that under Florida law Section (j)(5) excludes from coverage only damage to the part of the real property on which the insured is operating at the moment of the accident.
Essex Ins. Co. v. Kart Construction, Inc. , 2015 WL 4730540, at *4 (M.D. Fla. Aug. 10, 2015). The Middle District held that Van Ginhoven "establishes that the dispositive issue is the ‘operations’ that [the insured] performed at the moment of the accident, not the tasks that the contract explicitly contemplates." Id. at *5. In finding that the particular part of property was limited to a ten-foot portion of a 127-foot cell tower, the Court found the following reasoning dispositive:
In determining whether exclusion [ ] j(5) ... appl[ies] here, the Court is faced with facts unlike typical duty to defend cases involving [commercial general liability] policy exclusions. In cases like Van Ginhoven ..., a contractor is hired
to build a specific building or perform a discrete task within a defined area. Here, [the insured] had several different kinds of obligations under the Contract—to maintain, manage, and operate—and those obligations extended to the entire premises of [a] condominium complex. [The insurer] argues, in effect, that [the insured]’s "work" therefore encompassed the entire Project and all damage thereto. But the Project itself, and the damage to it, cannot be synonymous with [the insured]’s "work." If this were true, the Policy would be a nullity, as would the [commercial general liability] policies of any other company that contracts to manage or maintain an entire facility.
Id. at *6 (quoting Liberty Mutual Fire Insurance Co. v. Mark Yacht Club on Brickell Bay, Inc. , 2009 WL 2633064, at *6 (S.D. Fla. Aug. 25, 2009) ).
Critically, "[w]ith respect to exclusions j(5) and j(6) it is [the insurer]’s burden to specifically identify, with reference to the underlying complaint, what ‘particular part of real property’ [the insured] was working on that was damaged by [the insured]’s operations." Mark Yacht Club , 2009 WL 2633064, at *6. Thus, it is Cincinnati's burden to specifically identify, with reference to the Third-Party Complaint in the Underlying Action, what "particular part of real property" KNS was working on that was damaged by KNS's operations.
The Court finds the interpretation of Exclusion j in Kart Construction and Mark Yacht Club applicable to the present case. Although the underlying Third-Party Complaint describes what part of the project KNS was working on by referencing the scope of work set forth in the Sub-subcontract, it does not expressly allege what specific actions by KNS gave rise to those defects or when those actions occurred. See [DE 50], Exhibit C, ¶ 11 (describing the scope of work set forth in the Sub-subcontract). Cincinnati appears to argue the same argument rejected in Mark Yacht Club , equating the obligations of the Sub-subcontract with KNS’ "work." The relevant inquiry here is not the scope of work the Sub-subcontract explicitly contemplates, but rather what operations KNS was performing at the moment the damages occurred. See Kart Construction, Inc. , 2015 WL 4730540, at *6.
Cincinnati relies upon numerous decisions for the proposition that cases applying Exclusion j rely on two key factors. First, the damaged property was within the scope of work agreed to be performed by the insured. Second, the damage occurred while the insured's operations were being performed. Cincinnati argues that both factors were satisfied. The Court rejects such a broad application of Exclusion j and does not find the analysis persuasive as applied to the specific facts alleged in the Underling Action.
In sum, Section j(5) excludes from coverage damage to "that particular part" of real property on which the insured is operating at the time of the alleged damage, and without allegations fairly describing the damage or KNS’ actions contributing to the damage, it is not clear from the face of the complaint that Exclusion j(5) applies to preclude coverage.
Cincinnati takes the position that the time of damages is not at issue in the present matter. See [DE 70], p. 4. Cincinnati argues that the cases G&MP cites to are inapplicable because the work of KNS occurred within the policy periods of Cincinnati's Policies. However, without specific allegations regarding KNS’ actions as they relate to any alleged property damage, and without specific allegations identifying the property damage, the Court cannot conclude that such damage occurred while KNS was performing its ongoing operations.
Finally, the Court finds that the Third-Party Complaint's allegations also do not fall within the exclusionary language of Exclusion j(6). While "property damage" is clearly alleged in both the Third-Party Complaint and Amended Complaint in the Underlying Action, the Court cannot adopt Cincinnati's interpretation that KNS’ work must have necessarily been incorrectly performed on it. Indeed, the allegations in Third-Party Complaint and Amended Complaint in the Underlying Action simply do not sufficiently allege enough facts to allow Cincinnati to satisfy its burden of proof that the type of property damage alleged falls "solely and entirely" within either Exclusion j(5) or Exclusion j(6). See Cincinnati Insurance Company v. Quorum Management Corp. , 186 F. Supp. 3d 1307, 1316 (M.D. Fla. 2016) (quoting Acosta, Inc. v. National Union Fire Ins. Co. , 39 So. 3d 565, 574 (Fla. 1st DCA 2010) ).
In any case, because the Court is required to resolve any doubts as to a duty to defend in favor of the insured, Exclusion j does not relieve Cincinnati of its duty to defend in the Underlying Action. See Lawyers Title Ins. Corp. v. JDC (America) Corp , 52 F.3d 1575, 1580-81 (11th Cir. 1995) ; see also Baron Oil Co. v. Nationwide Mut. Fire Ins. Co. , 470 So. 2d 810, 814 (Fla. 1st DCA 1985) ("If the allegations of the complaint leave any doubt regarding the duty to defend, the question must be resolved in favor of the insured requiring the insurer to defend.").
D. Exclusion m: Impaired Property Exclusion
The next issue is whether Exclusion m applies to preclude coverage as to KNS. Exclusion m precludes coverage for:
"Property damage" to "impaired property" or property that has not been physically injured arising out of:
(1) A defect, deficiency, inadequacy or dangerous condition in "your product" or "your work"; or
(2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms.
[DE 50], Exhibit B, pp. 31, 132.
"The ‘impaired property’ exclusion in a standard CGL policy precludes coverage for property damage to property, other than the insured's work or product, which is not physically damaged and which damage is caused by the insured's faulty work or product." Certain Underwriters at Lloyds v. NOA Marine, Inc. , 2012 WL 1623527, at *15 (M.D. Fla. May 9, 2012). It is intended "to prevent the insured from claiming economic losses resulting from the insured's work or work product." Transcont'l Ins. Co. v. Ice Sys. of Am., Inc. , 847 F. Supp. 947, 950 (M.D. Fla. 1994). Exclusion m applies if there is no injury to other property and there is "merely ... economic loss resulting from injury to the product itself." Pinkerton & Laws, Inc. v. Royal Ins. Co. of Am. , 227 F. Supp. 2d 1348, 1354 (N.D. Ga. 2002) (applying Florida law). However, Exclusion m does not apply if the evidence "establishes damages to other property" or "to situations arising from sudden and accidental injury to the product which results in economic loss." Id. "Exclusion m does not bar coverage if the Court determines that the damaged property was ‘other property’ rather than [the insured's] ‘work’ as defined by the insurance contract." Id. at 1355.
Cincinnati argues that the property damage alleged by PPE in its Amended Complaint in the Underlying Action is that the glass façade is defective, and that this defect contributed to failure to achieve timely completion of the project. See [DE 49], p. 15. Cincinnati further argues that the only property damage alleged by GM&P against KNS in the Third-Party Complaint in the Underlying Action relates to KNS’ scope of work. Id. Cincinnati contends that to the extent economic damages for loss of use are implicated in the Underlying Action because of construction delays, Exclusion m applies. Id.
Regarding Exclusion m, KNS argues that Exclusion m does not apply because the Underlying Action does not allege that KNS’ work "entirely and exclusively caused the type damage referred by this exclusion." [DE 60], p. 7. Further, GM&P argues that the exclusion is not relevant because all the damages the Third-Party Complaint alleges are "unmistakably physical." See [DE 62], p. 18. In support of this statement, G&MP cites to paragraph 8 of the Third-Party Complaint, which states:
In its Complaint, inter alia, that construction of the glass façade curtain wall at Maryland Live did not conform to the requirements of the contract between PEE and Tutor Perini, that it was furnished and installed in an unsafe manner, and that the glass façade contains defects including but not strictly limited to loose gaskets between window panels, damaged sealants and panel frames, and misaligned window wall panels. PPE alleges that the condition of the glass façade has caused property damage and that there remains a risk of future property damage.
[DE 50], Exhibit C, ¶ 8.
Here, the general allegation of "property damage" and "future property damage" fails to establish whether defective property or some other non-defective property was physically injured by KNS’ alleged defective performance. A review of the Amended Complaint in the Underlying Action does not provide further clarity, only alleging that "PPE has already sustained property damage as a result of the negligence of Defendants [including G&MP] and anticipates it will sustain additional extra-contractual damages as a result of Defendants’ negligence." [DE 50], Exhibit D, ¶ 116. It is unclear from these allegations whether this property damage is alleged to have occurred on the insured's defective product or on some other, non-defective component. Accordingly, because the Court is required to resolve any doubts as to a duty to defend in favor of the insured, Exclusion m cannot by itself relieve Cincinnati of its duty to defend in the Underlying Action. See Lawyers Title Ins. Corp. v. JDC (America) Corp , 52 F.3d 1575, 1580-81 (11th Cir. 1995).
Finally, to the extent that Cincinnati argues that the Amended Complaint filed by PPE repeatedly and clearly alleges loss of use relating to any defective work by the insured, Exclusion m may apply to preclude coverage with respect to those claims. Once again, however, the Court cannot speculate as to the nature or merits of the claims alleged in the Amended Complaint or Third-Party Complaint in the Underlying Action. See Lime Tree Village Community Club Ass'n, Inc. v. State Farm General Ins. Co. , 980 F.2d 1402, 1406 (11th Cir. 1993) ("If the facts alleged show any basis for imposing liability upon the insured that falls within policy coverage, the insurer has a duty to defend.") (emphasis added). Given the non-specific nature of the allegations in the Underlying Action indicate that some property damage is alleged by PPE, the Court cannot resolve this issue in Cincinnati's favor. See Penzer v. Transportation Ins. Co. , 545 F.3d 1303, 1309 (11th Cir. 2008) ("[T]he burden of proof rests with the insurance company to demonstrate that coverage [is] inapplicable[.]") (quoting U.S. Concrete Pipe Co. v. Bould , 437 So.2d 1061, 1065 (Fla. 1983) ). E. Breach of Contract Exclusion
Finally, the Breach of Contract Exclusion does not relieve Cincinnati of its duty to defend. The Breach of Contract Exclusion endorsement in the applicable Cincinnati Policies specifically states:
This insurance does not apply to any claim for "bodily injury" or "property damage" arising directly from or indirectly from breach of express or implied contract, including breach of an implied in law or implied in fact contract. This exclusion does not apply to liability for damages that an insured would have in the absence of the contract.
See [DE 50], Exhibit B, pp. 49, 150.
Although the Third-Party Complaint brings claims against KNS for breach of contract and contractual indemnification, KNS and GM&P argue that the Third-Party Complaint also brings counts for negligence, common law indemnification, and contribution, which all fall outside of the Breach of Contract Exclusion. See [DE 60], p. 8; see also [DE 62], p. 17. Cincinnati claims, however, that the causes of action asserted by GM&P against KNS are all grounded in KNS’ purported breach of its contract with GM&P. See [49], pp. 16-17. Specifically, Cincinnati asks the Court to extend this exclusionary language to the Third-Party Complaint's counts for negligence (Count III), common law indemnification (Count IV), and contribution (Count V).
Cincinnati cites to HC Waterford , a case in which the Southern District of Florida determined that purported tort claims that depended upon a breach contract claim fell within a similar breach of contract exclusion. In that case, the court found that the negligence allegations in the underlying complaint were premised on the fact the insured was the developer of a condominium. HC Waterford Properties, LLC v. Mt. Hawley Ins. Co. , 2009 WL 2600431, *6-7 (S.D. Fla. Aug. 21, 2009). In determining that the Breach of Contract Exclusion applied, this Court reasoned that the negligence claim arose out of the breach of sales contract claim between the insured and the plaintiff in the underlying complaint. Id. In its reasoning, this Court relied on the Eleventh Circuit's interpretation of the phrase "arising out of," which found that the phrase "arising out of is not ambiguous and should be interpreted broadly." James River Ins. Co. v. Ground Down Eng'g., Inc. , 540 F.3d 1270, 1275 (11th Cir. 2008). "To have arisen out of something, there must be ‘some causal connection, or relationship’ that is ‘more than a mere coincidence’ but proximate cause is not required." Id. (quoting Taurus Holdings, Inc. v. U.S. Fid. and Guar. Co. , 913 So.2d 528, 539 (Fla. 2005) ).
Critically, HC Waterford is not binding on this Court. Even so, the plain language of the Breach of Contract Exclusion only extends to claims arising directly or indirectly from "breach of [an] express or implied contract." Yet, under Cincinnati's position, the mere existence of a contractual relationship among the parties could create an absolute bar to coverage. "It has long been a tenet of Florida insurance law that an insurer, as the writer of an insurance policy, is bound by the language of the policy, which is to be construed liberally in favor of the insured and strictly against the insurer." Berkshire Life Ins. Co. v. Adelberg , 698 So. 2d 828, 830 (Fla. 1997). If Cincinnati, as the drafter of the policy, wished this exclusion to apply to any claim where a contractual relationship is implicated, it should have drafted it as such. This Court rejects the interpretation articulated in HC Waterford as inapposite to Florida law interpreting insurance policies.
Further, to the extent that the Breach of Contract Exclusion is considered ambiguous as to whether it extends to tort claims arising from a contractual relationship, the Court must construe the exclusion against the drafter and in favor of the insured. See Auto Owners Ins. Co. v. Anderson , 756 So. 2d 29, 34 (Fla. 2000). As such, the Court must adopt the narrower interpretation of the Breach of Contract Exclusion, finding that while the exclusionary language applies to Counts I and II, it does not relieve Cincinnati of its duty to defend with respect to Counts III, IV, and V in the underlying Third-Party Complaint. The negligence, common law indemnification, and contribution claims could exist independently of any breach of contract claim, regardless of reference to a contract or existence of a contractual relationship.
It is well established under Florida law that an insurer has a duty to defend the entirety of a suit wherein claims fall both within and outside coverages afforded under the policy. Aetna Ins. Co. v. Waco Scaffold & Shoring Co. , 370 So.2d 1149, 1152 (Fla. 4th DCA 1978). Accordingly, because the Breach of Contract Exclusion does not apply to Counts III, IV, and V of the Third-Party Complaint, it does not relieve Cincinnati from its duty to defend KNS in the Underlying Action.
In sum, the Court finds that the facts as alleged in both the Third-Party Complaint and Amended Complaint in the Underlying Action do not fall within any of the exclusionary language raised by Cincinnati. The allegations in the Third-Party Complaint fairly and potentially brought the Underlying Action within policy coverage such that, as a matter of law, Cincinnati has a duty to defend KNS.
F. Coverage of GM&P Under the Additional Insured Endorsement Policy
The Court must next address whether Cincinnati has a duty to defend GM&P. In Cincinnati's Motion as to GM&P, Cincinnati argues that it does not owe a duty to defend to GM&P because (1) it does not owe a duty to defend KNS and (2) GM&P cannot demonstrate "property damage" as defined by the Cincinnati Policies and Florida law. See [DE 73], p. 6 ("The same policy exclusions that preclude coverage to KNS—exclusions j(5) and j(6), exclusion m, and the breach of contract exclusion—also preclude coverage to GM&P"). In support of its arguments, Cincinnati points out the following policy language:
B. With respect to the insurance afforded to these additional insured, the following additional exclusions apply:
This insurance does not apply to:
....
4. "Bodily Injury," "property damage" or "personal and advertising injury" for which the Named Insured is afforded no coverage under this policy of insurance.
See [DE 50], Exhibit A, pp. 55-56, 153-54. As discussed above, because none of the policy exclusions apply and because "property damage" has been properly alleged, Cincinnati owes a duty to defend KNS. The Court will not rehash these issues.
The first issue is whether GM&P is an additional insured under Cincinnati's policies. The parties do not dispute that the Policies include blanket additional insured endorsements. GM&P's SOMF ¶ 6. Specifically, these endorsements stated:
Who is Insured is amended to include as an additional insured any person or organization when you and such person or organization have agreed in writing in a contract or agreement that such person organization be added as an additional insured on your
policy, but only with respect to "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by:
1. Your acts or omissions in the performance of your ongoing operations for the additional insured;
2. The acts or omissions of those acting on your behalf in the performance of your ongoing operations for the additional insured; or
3. "Your work" performed for the additional insured and included in the "products-completed" operations hazard.
See [DE 50], Exhibit A, pp. 55-56, 153-54.
Here, GM&P's Sub-subcontract with KNS required KNS to obtain commercial liability insurance for its work on the project and that "[a]ll such insurance coverages shall name [GM&P] as an additional insured ...." See [DE 50], Exhibit E, p. 267. Reading the additional insured endorsements alongside the Sub-subcontract, the Court finds that GM&P is an additional insured under the Policies. In any case, the parties do not appear to dispute this fact. Instead, the core dispute is whether the Policies extend coverage to GM&P for its liability in the Underlying Action.
The language of the Policies unambiguously provides that GM&P is covered as an additional insured "only with respect to ... ‘property damage’ ... caused, in whole or in part, by" KNS’ acts or omissions. See [DE 50], Exhibit A, pp. 55-56, 153-54. However, Cincinnati argues that coverage is not extended to GM&P because the Amended Complaint by PPE does not allege that GM&P was vicariously liable for the direct actions or negligence of KNS. See [DE 73], at p. 9. Specifically, Cincinnati argues that courts have consistently held that similar additional insured endorsements are limited to coverage for the additional insured's vicarious liability for the named insured's actions, not for claims of direct negligence as are alleged in the Amended Complaint in the Underlying Action.
In support of this argument, Cincinnati cites to Amerisure Insurance Company v. Seneca Specialty Insurance Company , 2020 WL 3317035 (S.D. Fla. June 18, 2020). In that case, the court held that a property owner was an additional insured pursuant to a subcontract agreement, but that the property owner failed to qualify for coverage because the liability imposed on the additional insured in the underlying action was for direct negligence, not vicarious liability. Seneca , 2020 WL 3317035, at *4-5. In other words, without allegations of vicarious liability, the additional insured's liability was not occasioned by injury caused "in whole or in part" by the named insured. Id. Seneca relies on a Florida Supreme Court case, Garcia v. Federal Insurance Company , which held that an insurance policy providing coverage for an additional insured with respect to liability because of acts or omissions of the named insured limits coverage to instances in which the additional insured is vicariously liable for acts of the named insured. 969 So. 2d 288, 289 (Fla. 2007).
A number of cases have reached a similar conclusion. For example, in Mid-Continent Cas. Co. v. Constr. Servs. & Consultants, Inc. , the court held that an additional insured endorsement, which defined "insured contract" as any contract where the named insured assumed liability for the additional insured for any injuries "caused, in whole or in part, by" the named insured, did not extend coverage where the underlying state court lawsuit only alleged direct negligence against the additional insured. 2008 WL 896221, at *3-5 (S.D. Fla. Mar. 31, 2008). As a result, the court determined, the insurer had no duty to defend the additional insured in the underlying action. Id. at *5.
The same conclusion was reached in United Rentals, Inc. v. Mid-Continent Cas. Co. , 843 F. Supp. 2d 1309 (S.D. Fla. 2012). In that case, the court found that the plain language of the additional insured endorsement, which defined "insured contract" as any contract where the named insured assumed liability for the additional insured for any injuries "caused, in whole or in part, by" the named insured, only extended coverage for vicarious liability on behalf of the named insured. Id. at 1314. In its reasoning, the United Rentals court found that the coverage sought by the additional insured was "not contemplated by the plain terms of the insurance policies" where the underlying action was "premised solely on theories of strict liability and negligence arising from [the additional insured's] own acts or omissions." Id.
In response, GM&P argues that the Seneca decision does not comport with numerous jurisdictions in Florida and elsewhere. See [DE 96], p. 5. GM&P asks the Court to follow Mid-Continent Casualty Company v. Royal Crane, LLC , 169 So. 3d 174 (Fla. 4th DCA 2015), a case in which a Florida appellate court rejected the Southern District of Florida's interpretation in United Rentals :
We do not believe the Policy definition of an "insured contract" should be construed so narrowly. That provision limits the Insurer's coverage to situations involving " ‘bodily injury ... caused, in whole or in part, by [Cloutier] or by those acting on [Cloutier's] behalf. " (Emphasis added). By not using the term "vicarious liability" and, instead, focusing on whether the insured (Cloutier), or those working on its behalf, "caused" the injury, the "language indicates that policy coverage is not limited solely to vicarious liability, but that coverage extends to situations in which liability is shared" by the insured/indemnitor and its indemnitee. Nor–Son, Inc. v. W. Nat'l Mut. Ins. Co. , No. A11–2016, 2012 WL 1658938, at *3 (Minn. Ct. App. May 14, 2012) ; see also Steven G.M. Stein & Jean Gallo Wine, The Illusions of Additional Insured Coverage, 34–Spring Constr. Law. 14, 23 (Spring 2014) ("The newer language clearly covers a broader range of liability than that which is solely vicarious in nature.").
Id. at 183. However, given that Royal Crane did not address the Florida Supreme Court's ruling in Garcia nor did it involve an additional insured endorsement, the Court declines to apply that analysis to the instant case.
Finally, the majority of GM&P's response relies on cases that do not apply Florida law. See [DE 96], p. 5; see also [DE 107], p. 6 (citing Capital City Real Estate, LLC v. Certain Underwriters at Lloyd's London , 788 F.3d 375 (4th Cir. 2015) (applying Maryland law) and First Mercury Ins. Co. v. Shawmut Woodworking & Supply, Inc. , 2014 WL 5519831 (D. Conn. Oct. 31, 2014) (applying Connecticut law), among others). The Court declines to adopt the reasoning of these other jurisdictions and finds the weight of authority supports a framework requiring allegations of vicarious liability.
Here, the Amended Complaint in the Underlying Action only alleges one count for negligence (Count IV) against GM&P, GF, and CI Energia, alleging that the parties "negligently furnished materials and negligently installed the Glass Facade at the Project." [DE 50], Exhibit D, p. 257, ¶ 114. In light of the case law cited by Cincinnati and the absence allegations of vicarious liability in the Amended Complaint, the Court is unpersuaded that the plain language of the policy provides coverage to GM&P. Thus, while Cincinnati has a duty to defend KNS, Cincinnati has no duty to defend GM&P in the Underlying Action.
The Court agrees with Cincinnati that the Court's determination here must be made based on the allegations in the Amended Complaint filed by PPE in the Underlying Action. GM&P does not appear to dispute this application.
G. Primacy of Cincinnati's Coverage & Equitable Contribution
In its Motion, Gemini seeks summary judgment declaring that Cincinnati owes both KNS and GM&P a duty to defend in the Underlying Action, that Cincinnati's coverage is primary to Gemini's coverage, and that Cincinnati owes Gemini equitable contribution. See [DE 79]. Cincinnati also seeks summary judgment against Gemini, arguing there is no duty to defend or indemnify GM&P, and therefore Gemini does not have a valid claim for equitable contribution. See [DE 75].
This Court has already determined that coverage is limited to GM&P's vicarious liability for KNS’ actions and therefore Cincinnati has no duty to defend GM&P. As such, Cincinnati cannot owe Gemini a duty to defend on a primary basis. Gemini does not cite to any case law demonstrating why, in the absence of coverage as to GM&P under the Cincinnati Policies, it is entitled to equitable contribution. Thus, the Court does not find it necessary to address any other arguments pertaining to primary versus excess insurance or equitable contribution because the Court has already determined Cincinnati has no duty to defend GM&P, and Gemini's claims as to KNS necessarily must fail.
H. Duty to Indemnify
Finally, the Court turns to whether Cincinnati has a duty to indemnify KNS or GM&P in the Underlying Action. Cincinnati asks the court to enter summary judgment in its favor on the duty to indemnify. In response, KNS, GM&P, and Gemini argue it would be premature to decide the duty to indemnify when the Underlying Action is still ongoing. The Court must now determine whether the duty to indemnify any of the respective parties can be determined at this juncture.
If there is a duty to defend, the duty to indemnify must be stayed or dismissed as not yet ripe. See, e.g. , Northland Casualty Co. v. HBE Corp. , 160 F. Supp. 2d 1348, 1360 (M.D. Fla. 2001) ("Because an insurer's duty to indemnify is dependent on the outcome of a case, any declaration as to the duty to indemnify is premature unless there has been a resolution of the underlying claim."); 3 Smithers Const., Inc. v. Bituminous Cas. Corp. , 563 F.Supp.2d 1345, 1349 (S.D. Fla. 2008) ("[A]n insurer's duty to indemnify is not ripe for adjudication in a declaratory judgment action until the insured is in fact held liable in the underlying suit.") (multiple citations omitted); Atain Specialty Ins. Co. v. Miami Drywall & Stucco, Inc. , 2012 WL 3043002, at *2 (S.D. Fla. July 25, 2012) (same). Indeed, this is because "[i]n contrast to the duty to defend, which is determined by looking to the allegations of a complaint, the duty to indemnify is dependent upon the entry of final judgment, settlement, or a final resolution of the underlying claims by some other means." Northland , 160 F. Supp. 2d at 1360.
However, an exception articulated in Northland provides that a "court can determine that the allegations in the complaint could under no circumstances lead to a result which would trigger the duty to indemnify." Id. Under these circumstances, a court "could adequately assess the duty to indemnify prior to a conclusion on the merits of the underlying litigation." Id. ; see also David R. Farbstein, P.A. v. Wesport Ins. Corp. , 2017 WL 3425327, at *9 (S.D. Fla. Aug. 9, 2017) (finding that it is "Florida's well-settled principle that there cannot be a duty to indemnify without a duty to defend"). In other words, " ‘a court's determination that the insurer has no duty to defend requires a finding that there is no duty to indemnify.’ " Mt. Hawley Ins. Co. v. Miami River Pt. Terminal, LLC , 228 F. Supp. 3d 1313, 1326 (S.D. Fla. 2017) (emphasis in original) (quoting Trailer Bridge, Inc. v. Ill. Nat'l Ins. Co. , 657 F.3d 1135, 1146 (11th Cir. 2011) ).
Given this Court's determination that Cincinnati has a duty to defend KNS in the Underlying Action and the absence of any record reflecting a resolution has taken place in the Underlying Action with respect to liability, the issue of Cincinnati's duty to indemnify KNS is premature. See Axis Surplus Ins. Co. v. Contravest Const. Co. , 921 F. Supp. 2d 1338, 1344 (M.D. Fla. 2012). Conversely, because this Court has determined that the absence of allegations of vicarious liability in the Amended Complaint relieve Cincinnati of any duty to defend GM&P, Cincinnati has no duty to indemnify GM&P.
IV. CONCLUSION
The Court concludes that Plaintiff has a duty to defend Defendant KNS in the Underlying Action. The Court makes no ruling regarding Plaintiff's duty to indemnify Defendant KNS because the record does not reflect that liability has been determined in the Underlying Action. Furthermore, the Court concludes that Plaintiff has no duty to defend Defendant GM&P in the Underlying Action and thus no duty to indemnify GM&P. Finally, the Court concludes that Intervening Plaintiff Gemini is not entitled to reimbursement of all defense costs in the Underlying Action given that Plaintiff Cincinnati has no duty to defend Defendant GM&P.
Based on the foregoing analysis, it is ORDERED AND ADJUDGED as follows:
1. Plaintiff’ Cincinnati's Motion for Final Summary Judgment Against Defendant KNS Group, LLC [DE 49] is hereby DENIED and Defendant KNS Group, LLC's Motion for Summary Judgment Against Cincinnati [DE 77] is hereby GRANTED , such that:
a. Cincinnati has a duty to defend KNS in the Underlying Action.
b. Cincinnati's duty to indemnify KNS in the Underlying Action is not yet ripe for adjudication. The Court hereby postpones any determination of Cincinnati's duty to indemnify KNS until the Underlying Action is fully adjudicated, settled or otherwise resolved.
2. Plaintiff Cincinnati's Motion for Final Summary Judgment Against Defendant GM&P Consulting and Glazing Contractors, Inc. [DE 73] is hereby GRANTED and Defendant GM&P Consulting and Glazing Contractors, Inc.’s Motion for Summary Judgment [DE 80] is hereby DENIED , such that:
a. Cincinnati has no duty to defend GM&P in the Underlying Action.
b. Cincinnati has no duty to indemnify GM&P in the Underlying Action.
3. Plaintiff’/Intervening Defendant Cincinnati's Motion for Partial Summary Judgment as to Counts II and III of Intervening Plaintiff Gemini
Insurance Company's Complaint in Intervention [DE 75] is hereby GRANTED and Intervening Plaintiff Gemini Insurance Company's Motion for Summary Judgment Against Cincinnati [DE 79] is hereby DENIED .
4. The Court will issue final judgment by separate order.
5. The Clerk is DIRECTED to DENY AS MOOT all pending motions.
DONE AND ORDERED in Chambers in Fort Lauderdale, Broward County, Florida this 20th day of September, 2021.