Citations
- 143 F. Supp. 3d 1215
Full opinion text
ORDER GRANTING SUMMARY JUDGMENT
WM. TERRELL HODGES, UNITED STATES DISTRICT JUDGE
Joseph and Patricia Bradfield are the owners of a custom residential home they contracted to have constructed for them in Lake County, Florida. By all accounts, the home is a model of poor workmanship, poor materials and poor construction that began on day one of the project. There can be no dispute about that.
The Bradfield Home was built by Horgo Signature Homes, Inc. (“Horgo Signature”), and Winfree Homes, Inc. (“Win-free”), two Florida corporations and their various sub-contractors. Also lurking in the background is another Florida corporation, Horgo Enterprises, Inc. (“Horgo Enterprises”).
In August, 2012, the Bradfields sued Horgo Signature and Winfree in state court. Mid-Continent Casualty Company (“Mid-Continent”) had insured Winfree under a Commercial General Liability Insurance Policy. It had also insured Horgo Enterprises but had never insured Horgo Signature. When both Horgo Signature and Winfree, the named defendants in the state court action, asked Mid-Continent to undertake their defense in that case, Mid-Continent refused .to do so and denied coverage.
In March 2013, the parties in the state court action settled that case by entering into a Coblentz agreement. A Coblentz agreement, as in the context of this case, relates to a situation in which the insurance carrier for a general contractor declines coverage of a claim brought against the contractor by the home owner. The contractor and the home owner then agree to resolve their dispute by negotiating a consent judgment to be entered in the underlying case in favor of the home owner and against the contractor. This is then accompanied by an assignment to the home owner of the contractor’s claim against its own insurance carrier for failure to defend the case and indemnify the owner’s claim; and, in exchange for that assignment, the home owner releases the contractor from any personal liability under the consent judgment. The home owner, as an assignee standing in the shoes of the contractor, can then sue the contractor’s insurance company in an attempt to collect on the judgment. Coblentz v. American Surety Co., 416 F.2d 1059, 1062-63 (5th Cir.1969). See also Mid-Continent Cas. Co. v. Am. Pride Bldg. Co., LLC, 601 F.3d 1143, 1147 n. 2 (11th Cir.2010); Rodriguez v. Sec. Nat’l Ins. Co., 138 So.3d 520, 521 n. 3 (Fla.3d Dist.Ct.App.2014); Perera v. U.S. Fid. & Guar. Co., 35 So.3d 893, 903 (Fla.2010). The Supreme Court of Florida recognized Coblentz agreements in 1984. Steil v. Florida Physicians’ Ins. Reciprocal, 448 So.2d 489 (Fla.1984).
This case, then, is the resulting Coblentz litigation brought by the Bradfields, as plaintiffs against Mid-Continent as defendant and as the alleged insurer of Horgo Signature and Winfree. The object of the suit — the relief requested — is to recover the sum of $696,108.00, the amount of the consent judgment entered in the state court representing the Bradfield’s claim of damages for the poor construction of their home.
Presently pending are three motions for summary judgment (Docs. 28, 63, 64), four motions to strike expert testimony (Docs. 68, 83, 88, 130), and four procedural motions (Docs. 25, 81, 106, 146). Each of the motions has been fully briefed, and is ripe for disposition.
Mid-Continent has successfully demonstrated that'there is no genuine issue of material fact with regard to its defensive contentions (1) that the insurance coverage it provided to Horgo Enterprises and Win-free did not extend to Horgo Signature as a claimed additional insured; (2) that the specific items of damage claimed by the Bradfields either were not covered or were excluded by the policies it issued to Win-free (and, for that matter, those policies it issued to Horgo Enterprises); and/or (3) that the consent judgment entered in state court pursuant to the Coblentz agreement was not reasonable and/or was the result of collusion. Summary judgment will therefore be granted to Mid-Continent and denied to the Bradfields. The remaining motions will be denied as moot.
Undisputed Material Facts
I. Construction of the Bradfield Home
On August 3, 2005, the Bradfields entered into a Contract for Sale and Purchase with Horgo Signature (the “Home Contract”) for construction of a single-family residence located in Lake County, Florida at a price of $760,560, consisting of $150,000 for the land, and $610,560 for construction of the house (the “Bradfield Home”). (Doc. 25-1, Ex. A). The Bradfields contracted solely with Horgo Signature, and worked directly with Richard Higo (President and Project Manager of Horgo Signature) and Philip Horvath (employee of Horgo Signature). The Bradfields did not enter into any contracts with Winfree. The Bradfields both testified at their depositions that they never had any dealings with Winfree, and did not even know Win-free existed until litigation commenced. (Doc. 64-8, pp. 42-43, Doc. 122-13).
On September 22, 2005, Horgo Signature, through Mr. Higo, applied for and obtained a building permit from the Lake County Building Department for construction of the Bradfield Home. (Doc. 25-1, Ex. D). Winfree was listed .on the permit application as the contractor. The permit was issued on November 1, 2005, and expressly stated that it would become null and void if a satisfactory inspection was not completed within six months. (Id.). Such an inspection did not occur during that time period. For reasons undisclosed on the record, Mr. Higo did not apply for a second building permit until December 3, 2006 (Id.). While this permit application is signed by Mr. Higo as “contractor,” the application clearly lists Winfree as the contractor.
Winfree was the residential general contractor for the Bradfield Home and, as between Winfree and Horgo Signature, Winfree was responsible for building most of the segments of construction of the home. According to Mr. Higo, Winfree performed all of the concrete work “from zero to framing,” including the foundation, floor, block work, lintel, and strapping to the second floor. (Doc. 63-1, pp. 57, 63-64). However, it appears from the record that most, if not all, of Winfree’s work was actually performed by various specialty subcontractors. (Doc. 75, pp. 34, 53, 77-78, 80-81, 99, 105, 122-23). There is also evidence that Mr. Higo, through either Horgo Enterprises or Horgo Signature, hired, supervised, and paid for all subcontractors. (Id., pp. 34, 53). Winfree and Horgo Signature established this loose relationship also by oral agreements. The two companies did not execute any mutual written contracts concerning the Bradfield Home. (Doc. 63-3, pp. 46-47).
According to Horgo Signature, Winfree, and the Bradfields, the home was substantially completed on or before May 20, 2006. This included the monolithic slab; block walls and lintels; all roofing; framing of the interior and exterior walls, porches and stairs; installation of windows and doors; installation of drywall; electrical rough-in; plumbing rough-in; and HVAC systems rough-ins. However, the Lake County Building Records show that the “rough” insulation inspection was not conducted until June 29, 2006, the framing failed three inspections in June 2006, the house was not authorized for “prepower” until December 5, 2006, and did not pass the electric “final inspection” on December 11, 2006 because the “trim out [was] not complete.” (Doc. 53, Exs. I, K). In addition, the building permit for the Bradfield Home was renewed on December 5, 2006 “at 10% for finals only.” Moreover, Mr. Winfree candidly testified at deposition that: (1) he was not sure when all of the work was completed although he thinks most of the framing would have been completed by April 27, 2006; (2) the grading work was performed between August and November 2006; and (3) no one ever told him that the framing of the interior and exterior walls, porches, and stairs were completed prior to May 20, 2006 (Doc. 75, pp. 62-67, 70, 81,125-126,164).
In any event, the house passed inspection by December 13, 2006, when the Lake County, Florida Building Department issued its Certificate of Occupancy (Doc. 63-5). The Certificate of Occupancy lists the owner as Richard M. Higo and the contractor as Winfree. (Id.). After the Certificate was issued, the Bradfields paid the remaining amount due on the Home Contract, and moved into the home just before Christmas of 2006.
II. Defects in the Construction of the Bradfield Home
Within 30 days of moving in, contractors were engaged to recaulk the windows, and a portion of the garage ceiling collapsed and was replaced for the first of three times. Dr. Bradfield also first noticed water intrusion from the balcony when the garage ceiling was torn out in 2007.
Approximately six months after moving in, on or about June 2007, the Bradfields discovered additional water damage in the garage and dining room. This leak was caused by the doors out to the balcony off the bedroom above the garage. Horgo Signature performed the repairs which encompassed removing the drywall in both the garage and dining room, replacing the hardwood flooring, installing a larger flashing in the wood frame, and removal of mold. (Doc. 64-1, pp. 85-86).
Within a year of moving in, Dr. Brad-field also noticed the summer kitchen was constructed with the wrong wood and was improperly sealed. He also observed that the front porch sloped toward the house which allowed water to seep into the home. However, the Bradfields did not take any steps to repair the front door and front porch for several years. Lastly, Dr. Bradfield believes there are problems with five windows in the dining room and exercise room, but does not know if they were improperly installed.
In January 2007 the roof suffered damage and was repaired. The Bradfields eventually sued the roofing subcontractor, Pride USA, in separate state court litigation, and that case was resolved by a settlement agreement executed on November 26, 2013 (Doc. 64, Ex. J). As part of the settlement, Pride USA paid $30,000 to the Bradfields, who in turn released and indemnified Pride USA from any and all claims arising from Pride USA’s work on the Bradfield Home (Id.). Dr. Bradfield testified that other than January 2007, there has been no other water damage to the Bradfield Home caused by any roofing issues. (Doc. 64-9, pp. 15-16; Doc. 64-6, p. 86).
In 2009, the Bradfields had a pool, pool deck, and pool bath constructed by Blue Haven Pools and Spas, a company not affiliated with Horgo Signature or Win-free. The pool deck was not constructed properly and has sagging pavers. The record does not disclose whether the Brad-fields ever sued Blue Haven Pools and Spas for the improper construction of the pool area.
In 2011, the Bradfields discovered another leak in the garage and master bedroom closet, as well as in a portion of the exercise room. It is not clear from the record whether anyone made the necessary repairs, however, Dr. Bradfield testified that every time there was a leak, Mr. Higo came out to fix it. (Doc. 64-6, p. 42).
In 2012, the Bradfields retained Michael Swidler from the Endeavor Group, Inc., to conduct an inspection of the home. On or about April 12, 2012, the Bradfields received an Inspection Report from the Endeavor Group, Inc., (Doc. 30, Ex. B). The report disclosed the following issues:
(1) Signs of tile slippage and leaks on the roof and the absence of metal hurricane clips;
(2) A “belief’ that the Bradfield Home has toxic drywall, however at the time of the report, tests on the drywall had not been completed;
(3) An assumption that mold exists in the house due to prior water intrusion in the garage, front foyer, and pool bath, and a statement that mold can spread through the HVAC system into the entire home;
(4) Water intrusion through the windows, and a “belief’ that the windows were not installed properly;
(5) Sagging in the drywall in the garage due to water leaks and use of drywall . of an inadequate thickness;
(6) The balcony was not sloped properly, allowing water into the garage ceiling;
(7) Water intrusion caused by the pool deck elevation holding water and leaking into the pool bath due to the deck’s pavers being too high;
(8) The a/c handler in the garage closet was “not finished like the rest of the home;”
(9) The drywall used in the ceilings is not the proper thickness; and
(10) The summer kitchen was built with materials that pose a fire hazard and should be replaced.
At his deposition, Mr. Swidler testified that he- also observed buckling wood by the dining room, the game room, and the office. He believes that all of the damages to the Bradfield Home began on “day one.” (Doc. 64-15, pp. 25-26).
The Bradfields also retained Mr. Swi-dler to prepare an estimate for repairing all of the defects in the Bradfield Home. Mr. Swidler in turn retained Derelle Inc., a general contracting company managed by Cecil Clark, to prepare an estimate to remove and replace the entire interior of the Bradfield Home down to the studs. Mr. Clark inspected the Bradfield Home and opined that all of the damages started when the windows were installed (Doc. 64-16, p. 46). Mr. Clark’s estimate included removing all of the drywall, windows, granite tops, vanities, all of the hardwood flooring, all of the carpeting, all of the plumbing, the attic insulation, and all of the tile work. The estimate also included the removal and repair of areas that had no signs or evidence of damage, such as the roof, which was not leaking, but was simply missing hurricane clips. Mr. Clark’s estimate also included removal and replacement of portions of the interior due to mold, including electric lighting demo, trim, garage door openers, cabinetry, appliances, insulation crown base, drywall, and doors. The estimate also added in amounts for personal protection and the cost to bag and dispose of everything that came into contact with the mold. Lastly, Mr. Clark added a $27,000 supervision fee.
Mr. Clark delivered his initial estimate to Mr. Swidler on December 6, 2012. The amount of the initial estimate was $444,464.50 (Doc. 64, Ex. Q). After consultations with Mr. Swidler, Mr. Clark submitted a second estimate that same day in the amount of $486,464.50, which included $42,000 for unforeseen damages (Doc. 64, Ex. R).
Mr. Swidler obtained another estimate from Allan Lougheed, a purported construction expert, who submitted an estimate for repairing and replacing almost all of the same items listed in Mr. Clark’s estimate. Mr. Lougheed reported that all repairs would cost $279,564.00 (Doc. 77, pp. 3-4).
Using Mr. Clark’s and Mr. Lougheed’s respective estimates, Mr. Swidler prepared his own estimate for all of the repairs to the Bradfield Home. On December 13, 2012, he submitted to the Bradfields an estimate in the amount of $671,050, which included painting, repairs to defective stucco, repairs to the balcony, replacement of the entire roof, refinishing the air handler, removal and replacement of the drywall throughout the house, landscaping costs, and moving expenses (Doc. 64-14). The Swidler estimate of December 13, 2012 appears to have been a combination of the entire $486,464.50 from Mr. Clark’s estimate, plus portions of Mr. Lougheed’s estimate in the amounts of $96,500.00 for stucco, $30,500.00 for balcony repairs, $12,700.00 for unforeseen costs, and a 10% profit charge of $12,700.00. Mr. Swidler’s estimate also included an additional $32,185.50 for “mold protocol/remediation” over and above the mold charges included in Mr. Clark’s estimate. (Doc. 73, pp. 48-49).
On December 14, 2012, Mr. Swidler submitted a second estimate in the amount of $787,494.00 (Doc. 68, Ex. C). It appears that Mr. Swidler removed the $42,000.00 in unforeseen damages fee, as well as $24,000.00 of the mold remediation charges and $800.00 in appliance fees. He then added an additional $4000.00 for pavers, a 15% project management fee in the amount of $91,237.00, $20,000.00 in landscaping charges, and $68,000.00 for the Bradfields’ moving and living expenses (Doc. 73, pp. 48-49).
The Bradfields continued to live in their home until February 2014, when they moved out because it was no longer habitable.
III. The Underlying State Lawsuit
On August 29, 2012, after giving notice as required by Florida law, the Bradfields filed suit in the Fifth Judicial Circuit in and for Lake County, Florida; Bradfield v. Horgo Signature Homes, Inc, and Winfree Homes, Inc., Case No. 2012 CA 3023 (the “Underlying Case”).
The Bradfields alleged that on-August 3, 2005, they entered into a Contract for Sale and Purchase with Horgo Signature, and that in April 2012, they learned that their home suffered from latent construction defects that materially affected the structural integrity of the home and caused the Brad-fields damages. (Doc. 25-1, ¶¶ 6, 12, 18, 25, 33). The alleged latent defects included, but were not limited to: (a) water intrusion on the tile roof, windows, and pool bath; (b) mold; (c) code violations in the garage drywall; (d) improper sloping on the front balcony; (e) improper installation of air handler and windows; (f) improper ceiling installation; (g) improper installation of combustible materials in summer kitchen; and (h) improper installation of roofing materials. (Id., ¶ 13). The Bradfields also incorporated and attached the Endeavor Group report to their complaint. (Id., ¶ 14). However, the complaint did not contain the phrases “property damage” or “structural damage.”
The Bradfields asserted two claims against Horgo Signature in the Underlying Case. The first was a breach of contract claim alleging that Horgo Signature materially breached its obligations to the Brad-fields under the Home Contract by failing to supervise construction and build the home in a workmanlike manner in accordance with industry standards ánd governing codes (Doc. 25-1, ¶¶ 9-18). Second, the Bradfields’ alleged that by failing to inform them of the nature of the structural defects in the home, Horgo Signature breached a fiduciary duty to construct and supervise the construction of the Bradfield home in a reasonably prudent manner. (Id., ¶¶ 27-33).
The Bradfields’ lone claim against Win-free in the Underlying Case was couched in terms of a negligence cause of action: (1) that Winfree had a duty to construct the Bradfield home in accordance with minimum industry standards and governing applicable codes; (2) that Winfree breached that duty; and (3) 'that Winfree’s breach directly and proximately caused damages to the Bradfields. (Doc. 25-1, ¶¶ 19-26).
The Bradfields did not allege any cause of action against Horgo Signature or Win-free under a theory of vicarious liability, rather, each claim was based on each company’s own acts and omissions. Also, the Bradfields did not bring suit or assert any claims against Horgo Enterprises.
Mid-Continent was given notice of the Bradfields’ state court lawsuit, but through a series of letters dated September 20, 2012, September 24, 2012, November 1, 2012, and January 3, 2013, refused to defend the case and denied coverage of the claims of damages. See Doc. 2, Ex. D; Doc. 30, pp. 50-75; Doc. 32-5.
IV. Settlement of the Underlying Case
In response to the Bradfields’ complaint, Winfree and Horgo Signature filed a motion to dismiss. However, Winfree and Horgo Signature withdrew their motion on November 28, 2012, after counsel for all sides had entered into settlement negotiations and began drafting a settlement agreement. See Doc. 2, Ex. H, p. 6; see also Doc. 57-7, pp. 42, 63, 65-66. On December 15, 2012 Winfree and Horgo Signature filed a joint answer and six affirmative defenses (Doc. 57-8, p. 81). Aside from this responsive pleading, there is no evidence in the record that Winfree or Horgo Signature thereafter engaged in any discovery, motion practice, or other prosecution of the Underlying Case.
The parties scheduled mediation for February 21, 2013. On February 7 & 8, 2013, the Bradfields wrote to Mid-Continent and provided a written copy of the notice of mediation. (Doc. 2, Ex. E). On February 8, 2013, Winfree and Horgo Signature also wrote to Mid-Continent to notify it of the date, time and location of the mediation. (Id., Ex. F). Mid-Continent responded that it “will not be participating in the settlement process of the subject case,” and did not thereafter attend the mediation conference (Doc. 30, p. 83).
The mediation conference was held as scheduled on February 21, 2013, and all parties to the suit were represented by legal counsel. Mr. Winfree testified at his deposition that neither he nor Mr. Higo brought any documents to the mediation. (Doc. 122-11, p. 14). All of. the parties and their counsel met in a conference room for about an hour at the start of the mediation, during which the parties made opening statements. (Id., pp. 14-18). Mr. Win-free recalled that the parties all agreed that they would try and get Mid-Continent to pay for any settlement. (Id., p. 15). At the conclusion of these initial presentations, both Mr. Winfree and Mr. Higo left the conference room and sat outside in a reception room for the next five to six hours (Id, pp. 18, 20-21, 77). Neither Mr. Winfree nor Mr. Higo took part in any further negotiations during the mediation conference, and they were never asked back into the conference room. (Id, p. 43). Eventually their attorney told them that they could go home while the attorneys for both sides continued to work on a settlement draft (Id, p. 43, 78). In addition to not participating in the settlement negotiations, Mr. Winfree testified that he never made any sort of counteroffer to the Brad-fields, never challenged the dollar amounts demanded by the Bradfields, and did not recall seeing any damages calculations or a draft agreement during the mediation conference. (Doc. 122-11, pp. 43-44, 53-54).
On March 6, 2013, the Bradfields, Win-free, and Horgo Signature executed a Mediated Settlement Agreement (“MSA”) (Doc. 2, Ex. H). The MSA is signed by the Bradfields, Norman Winfree on behalf of Winfree, and Richard Higo on behalf of both Horgo Signature and Horgo Enterprises.
According to the terms of the MSA, Horgo Signature and Winfree agreed to be held jointly and severally liable in the amount of $696,108, consisting of $671,050 in damages, $20,333.55 in attorney’s fees, and $4,724.45 in costs. (Doc. 2, Ex. H, p. 4). The damages were not broken down into categories (such as damages for roofing, flooring, drywall, mold removal, etc). Rather the damages were listed as one lump sum.
The MSA stated that Winfree was retained as the general contractor for the Bradfield Home, and did the majority of the construction. The MSA further stated that Winfree allowed Horgo Signature to assist in the construction, under Winfree’s direct supervision. (Doc. 2, Ex. H, p. 2). The agreement reiterated the allegations of the complaint, and incorporated both the contract for the Bradfield Home and the Endeavor Report. However, the MSA deviated from the complaint by stating that the latent defects in the home, which were first discovered on April 9, 2012, “caused structural damage to the Bradfield Home,” and that all work related to the latent defects was completed on or before May 20, 2006. (Id, p. 3).
The MSA further stated that both Win-free and Horgo Signature were insured by Mid-Continent, and that Mid-Continent had refused to defend or indemnify either company. (Doc. 2, Ex. H, pp. 4-6). As part of the MSA, Horgo Signature and Winfree, following the Coblentz model, assigned their rights under their respective insurance policies to the Bradfields. (Id, p. 11). In addition, and conditioned upon satisfaction of a Consent Judgment, the Bradfields agreed to release Horgo Signature, Horgo Enterprises, and Winfree from any and all claims, known or unknown, that may have accrued up to the date of the MSA (Id, pp. 13-14). Lastly, the MSA stated that the parties each voluntarily entered into the agreement in good faith to resolve all claims, that all terms were fair and reasonable, and that no party was subject to any coercion, distress, or undue influence. (Id., pp. 6, 8-9). The MSA also affirmed that no party had reached an accord to guarantee any certain amount of recovery, and that neither Winfree’s nor Horgo Signature’s liability was increased or decreased by entering into the MSA (Id., p. 12).
At deposition, Mr. Higo testified that he had no firsthand knowledge about the damages to the Bradfield home; he did not know if there were problems with the hardwood floors, paint, carpeting, roof, paving, tile, or block to frame wall. (Doc. 64-1, pp. 138-39, 143-145, 150, 153-54). Mr. Higo also had no idea how the parties calculated the $671,050 in damages listed in the MSA, and did not see that amount until some point after the mediation conference (Doc. 122-7, pp. 30-31). Mr. Higo further testified that he was not part of any discussions concerning the composition of the MSA, and did not make any changes to the agreement or ask any questions about its contents. (Id., p. 35). In addition, Mr. Higo was not aware of the categories of damages that were included in the amount listed on the MSA, did not know if the MSA included damages for items that Horgo Signature and/or Winfree were not responsible for (such as the pool bath and roof), and did not know if the MSA amount included the costs of repairing or replacing defective products versus the costs of repairing other damage. (Id., pp. 55, 73-77, 112-13).
Dr. and Mrs. Bradfield’s deposition testimony about the contents of the MSA was strikingly similar to Mr. Higo’s. They also testified that they had no knowledge as to how the parties reached the $671,050 damages amount, and could not speak to what categories of damages were included in the MSA; they simply accepted the damages amount at face value. (Doc. 122-8, pp. 168, 174, 178-79, 189, Doc. 122-10, pp. 171-72, 177). However, Dr. Bradfield did testify that he believed the final damages amount was the product of some negotiation “by the people who were in the room knocking out the nitty-gritty.” (Doc. 122-8, p. 174).
Mr. Winfree also gave deposition testimony about the amount of damages listed in the MSA. He similarly testified that he lacked knowledge about the actual damages to the Bradfield Home, and had not been back out to the home since the Certificate of Occupancy had been issued (Doc. 64-3, pp. 38, 105-07, 124-25, 130). Mr. Winfree also had no knowledge as to how the $671,050 damages amount was calculated, or what types of property damages or other expenses were included in the • lump sum (Doc. 122-11, pp. 53-54, 58, 60-64. 76). Mr. Winfree did testify, however, that for the amount listed in the MSA, “you could tear the whole house down, throw it in the garbage and rebuild it.” (Id., p. 62). Mr. Winfree candidly admitted that he agreed to the MSA because he could not afford to defend himself in the Underlying Case, and “if they can make [Mid-Continent] pay for it, so be it.” (Id., p. 51). More specifically, Mr. Winfree testified that “I threw [Mid-Continent] under the bus for me, yes. Just like they throwed [sic] me under the bus.” (Id., p. 98).
The state court ratified and confirmed the MSA, and entered a Consent Final Judgment on March 11, 2013 in the full amount of $696,108.00 (Doc. 2, Ex. I). The Consent Judgment stated that the Brad-fields were deemed to be third-party beneficiaries of the Mid-Continent insurance policies, and the real party in interest for any bad faith settlement practices claims. Id.
On March 28, 2013, the Bradfields provided Mid-Continent with a copy of the Consent Judgment and demanded that Mid-Continent satisfy the judgment, plus all accrued interest. (Id., Ex. J). Mid-Continent refused, and the Bradfields initiated the present litigation.
Summary Judgment Standard of Review
Pursuant to Federal Rule of Civil Procedure 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.” In applying this standard, the Court must examine the materials on -file and the record evidence “in the light most favorable to the nonmov-ing party.” Samples on Behalf of Samples v. Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988). When faced with a “properly supported motion for summary judgment [the nonmoving party] must come forward with specific factual evidence, presenting more than mere allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir.1997). The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir.1985) (“conclusory allegations without specific supporting facts have no probative value”).
At the summary judgment stage the judge’s function is not to weigh the evidence and determine the truth of the matter but to determine whether. there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Some degree of factual dispute is expected, but to successfully counter a motion for summary judgment the factual dispute must “affect the outcome of the suit” and must be “such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248,106 S.Ct. at 2510.
However, in this case, neither side has requested a trial by jury. Thus, both the breach of contract claim and the declaratory judgment claim will be resolved by the Court as the ultimate trier of fact. In such circumstances, it is the law of the Circuit that:
If decision is to be reached by the court, and there are no issues of witness credibility, the court may conclude on the basis of the affidavits, depositions, and stipulations before it, that there are no genuine issues of material fact, even though - decision may depend on inferences to be drawn from what has been incontrovertibly proved. Under those circumstances, which may be rare, the judge who is also the trier of fact may be warranted in concluding that there was or was not negligence, or that someone acted reasonably or unreasonably, ... even if that conclusion is deemed “factual” or involves a “mixed question of fact and law.” A trial on the merits would reveal no additional data. Hearing and viewing the witnesses subject to cross-examination would not aid the determination if there are neither issues of credibility nor controversies with respect to the substance of the proposed testimony. The judge, as trier of fact, is in a position to and ought to draw his inferences without resort to the expense of trial.
Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-24 (5th Cir.1978). See also Feaz v. Wells Fargo Bank, N.A., 745 F.3d 1098, 1104 (11th Cir.2014) (The interpretation of an insurance contract is a question of law to be decided by the Court.).
Discussion
I. The Bradfields’ Claims In This Litigation
The Bradfields have alleged two claims against Mid-Continent (Doc. 1). Count I is a claim for damages under a breach of contract theory. The Bradfields allege that Mid-Continent breached its duties to defend and indemnify Winfree and Horgo Signature in the Underlying Case. Count II is a claim for declaratory relief. The Bradfields seek a declaration that Mid-Continent had a duty to defend both Win-free and Horgo Signature, and is obligated to satisfy the Consent Judgment. Mid-Continent seeks summary judgment on both claims (Docs. 63-64), and the Bradfields seek summary judgment on Count II with respect to Mid-Continent’s purported duty to defend Winfree in the Underlying Case (Doc. 28).
II. Mid-Continent’s Coverage of Horgo Signature
Mid-Continent has filed an amended motion for summary judgment with respect to the Bradfields’ claims relating to Horgo Signature (Doc. 63). Mid-Continent contends that it has no duty to defend or indemnify Horgo Signature, and is not obligated to pay the Consent Judgment, because it never insured Horgo Signature under any policy.
It is undisputed that Mid-Continent never issued an insurance policy to Horgo Signature, and that no written policy exists listing Horgo Signature as an insured or an additional insured (Doc. 76, p. 3). The Bradfields nonetheless argue that material issues of fact remain in dispute as to whether Horgo Signature was an additional insured under either the Horgo Enterprises or Winfree policies “based on [Mid-Continent] being notified that Horgo Signature was performing the work, that certificates of insurance were issued naming Horgo Signature as an insured under the Horgo Enterprises policies, and that [Mid-Continent] was notified and conducted annual audits to ensure that Horgo Signature was properly covered.” (Id.). That representation is not supported by the record and is simply wrong. There is no evidence of any certificates of insurance issued by Mid-Continent naming Horgo Signature as an insured or additional insured, and notices sent to, or audits performed by Mid-Continent, the existence of which is also without support in the record, would be inconsequential as a matter of law.
The Additional Insured Endorsement contained in the Winfree and Horgo Enterprises policies defines an additional insured as “Any person or organization for whom the named insured has agreed by written ‘insured contract’ to designate as an additional insured subject to all provisions and limitations of this policy.” (Doc. 32-1, p. 39; Doc. 32-2, p. 38; Doc. 32-3, p. 42; Doc. 63-21, p. 37; Doc. 63-22, p. 39; Doc. 63-23, p. 42; Doc. 63-24, p. 42). The policies cover such additional insured “only with respect to liability directly attributable to [the named insured’s] performance of ongoing operations for that [additional] insured.” (Id.). The policies further defines an “insured contract” as, among other things, “that part of any other contract or agreement pertaining to your business. . .under which you assume the tort liability of another party to pay for ‘bodily injury or ‘property damage’ to a third person or organization, provided the ‘bodily injury’ or ‘property damage’ is caused, in whole or in part, by you or by those acting on your behalf. ” (Doc. 32-1, p. 38; Doc. 32-2, p. 27; Doc. 32-3, p. 27; Doc. 63-21, p. 29; Doc. 63-22, p. 32; Doc. 63-23, p. 35; Doc. 63-24, p. 32).
Thus, under the plain and unambiguous language of the Policies, in order for Hor-go Signature to be an additional insured, there must be: (1) a written “insured contract” between Horgo Signature and Hor-go Enterprises or between Horgo Signature and Winfree; and (2) the liability at issue must be directly attributable to the primary insured’s (Horgo Enterprises or Winfree) performance of its work for the putative additional insured (Horgo Signature). See Mid-Continent Cas. Co. v. Construction Servs. & Consultants, Inc., 2008 WL 896221 (S.D.Fla. Mar. 31, 2008); United Rentals, Inc, v. Mid-Continent Cas. Co., 843 F.Supp.2d 1309 (S.D.Fla.2012); Amerisure Ins. Co. v. Orange & Blue Const., Inc., 913 F.Supp.2d 1363, 1369-70 (S.D.Fla.2012); King Cole Condo. Ass’n., Inc, v. Mid-Continent Cas. Co., 21 F.Supp.3d 1296 (S.D.Fla.2014) (all interpreting identical additional insured endorsements and holding that, to be an additional insured, there must be a written insured contract and vicarious liability). Here neither requirement is satisfied.
First, it is undisputed that no written agreements of any kind exist between Horgo Signature and either Winfree or Horgo Enterprises. And second, the allegations of the Bradfields’ complaint in the Underlying Case assert claims against Horgo Signature for its own breach of its contract with the Bradfields, and for its own alleged breach of fiduciary duties purportedly owed to the Bradfields. The Brad-fields did not pursue a theory of vicarious liability against Horgo Signature. See Doc. 25-1, ¶¶ 17-18, 28-33. See also Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990) (Florida law requires a plaintiff to specifically plead vicarious liability as a separate cause of action); Amerisure Ins. Co. v. Orange and Blue Const., Inc., 545 Fed.Appx. 851, 855 (11th Cir.2013) (“insured contract” exception to Employer’s Liability Exclusion in a general liability insurance policy does not apply where the purported additional insured was sued for tort claims based on its own alleged acts and omissions and not under a vicarious liability theory).
Based on the undisputed facts and the plain language of the Winfree and Horgo Enterprises policies, the Court concludes as a matter of law that Horgo Signature is not an additional insured under any policy issued to either Horgo Enterprises or Winfree and, therefore, Mid-Continent was under no obligation to defend or indemnify Horgo Signature. Because the language of the Policies is clear and unambiguous, the Court cannot consider any of the extrinsic “facts” listed by the Bradfields such as the purported notifications, audits and certificates of insurance. Atlantic Marine Florida, LLC v. Evanston Ins. Co., 775 F.3d 1268, 1276, n. 25 (11th Cir.2014) (“ ‘Where the language in an insurance contract is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written’; extrinsic evidence of the parties’ intent is not relevant to the analysis.”) (quoting Wash. Nat’l Ins. Co. v. Ruderman, 117 So.3d 943, 948, 952 (Fla.2013)); Fireman’s Fund Ins. Co. v. Tropical Shipping & Constr. Co., 254 F.3d 987, 1003 (11th Cir.2001) (“Under Florida law, ‘the parties’ intent is to be measured solely by the language of the policies unless the language is ambiguous.’ Thus, in the absence of ambiguous language, a court may not look to parol evidence in ascertaining the intent of the parties to an insurance contract.”) (quoting Towne Realty v. Safeco Ins. Co. of Am., 854 F.2d 1264, 1267 (11th Cir.1988)).
Even if the Court were to go beyond the four corners of' the Winfree and Horgo Enterprises policies and examine the additional arguments made by the Bradfields, none are sufficient to defeat summary judgment. All but one of the arguments rely on the Bradfields’ misinterpretation and mis-quotation of the deposition testimony of Mr. Higo. For example, the Brad-fields contend that Mr. Higo testified that: (1) he “believed” that Horgo Signature was insured simply because it built homes; (2) Horgo Enterprises and Horgo Signature were essentially the same corporate entity; (3) Horgo Signature did not have its own bank account; (4) Mid-Continent was notified that Horgo Signature was performing work on the Bradfield Home; (5) Mid-Continent issued certificates of insurance naming Horgo Signature as an insured; and (6) Mid-Continent was notified and conducted annual audits to ensure Horgo Signature was covered. (Doc. 76, p. 2; Doc. 93, pp. 3-4). Each of these purported references to Mr. Higo’s deposition testimony are either inadmissible under the “best evidence” rule, contradicted by other portions of Mr. Higo’s deposition, and/or belied by other undisputed record evidence. And, in any event, even if such testimony was accurate and undisputed, it would not trump the unambiguous language of the Winfree or Horgo Enterprises policies, and would not create a material issue of disputed fact sufficient to defeat summary judgment.
The Bradfields make one last argument in their sur-response (Doc. 93). They now seek to argue that genuine issues of material fact exist as to whether Horgo Signature is an additional insured because an “insured contract” may in fact exist. The Winfree and Horgo Enterprises Policies list “a sidetrack agreement” as a possible “insured contract,” (Doc. 32-1, p. 38; Doc. 32-2, p. 27; Doc. 32-3, p. 27; Doc. 63-21, p. 29; Doc. 63-22, p. 32; Doc. 63-23, p. 35; Doc. 63-24, p. 32), and the Bradfields contend that Horgo Enterprises and Horgo Signature may have entered into an oral “sidetrack agreement,” but there is simply no evidence of such. Moreover, if an oral “sidetrack agreement” existed, it could not affect the written terms of the policies. See Doc. 63-21, p. 37; Doc. 63-22, p. 39; Doc. 63-23, p. 42; Doc. 63-24, p. 42 (requiring that all insured contracts, including “sidetrack agreements” must be in writing).
In summary, taking the undisputed material facts in the light most favorable to the Bradfields, the Court finds as a matter of law that Horgo Signature was not a named insured or additional insured under any policy issued by Mid-Continent during the relevant time period. As such, Mid-Continent owed Horgo Signature no duty to defend or indemnify, and summary judgment will be granted in Mid-Continent’s favor.
III. Mid-Continent’s Coverage of Win-free
The Parties have filed cross-motions for summary judgment with respect to Mid-Continent’s obligations to Winfree, and whether Mid-Continent must satisfy the Coblentz Consent Judgment against Win-free. Under Florida law, where an injured party wishes to recover under a Coblentz agreement “the injured party must prove coverage, wrongful refusal to defend, and that the settlement was reasonable and made in good faith.” Chomat v. Northern Ins. Co. of New York, 919 So.2d 535, 537 (Fla. 3d Dist.Ct.App.2006) (quoting Quintana v. Barad, 528 So.2d 1300, 1301 n. 1 (Fla.3d Dist.Ct.App.1988)) (additional citations omitted). See also Trovillion Const. & Dev., Inc, v. Mid-Continent Cas. Co., 2014 WL 201678 at * 3 (M.D.Fla. Jan. 17, 2014); Sinni v. Scottsdale Ins. Co., 676 F. Supp.2d 1319, 1324 (M.D.Fla.2009).
The Bradfields seek summary judgment solely on the second element of their burden — that Mid-Continent breached its duty to defend Winfree in the Underlying Case (Doc. 28). Mid-Continent seeks summary judgment on the remaining two elements — that there was no coverage (ie., no duty to indemnify), and that the Consent Judgment was not reasonable or made in good faith (Doc. 64). The Court will first address the Bradfields’ motion.
The general rule in Florida is that an insurance company’s duty to defend an insured is determined solely from the allegations of the complaint when compared to the insurance policy’s terms and conditions. See Jones v. Florida Ins. Guar. Ass’n, Inc., 908 So.2d 435, 443 (Fla.2005); National Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533, 536 (Fla.1977). When the complaint alleges facts that fairly and potentially bring the suit within the coverage afforded by the policy, the insurer must defend the action. Jones, 908 So.2d at 442-43. “The duty to defend is of greater breadth than the insurer’s duty to indemnify, and the insurer must defend even if the allegations in the complaint are factually incorrect or meritless.” J.B.D. Constr., Inc, v. Mid-Continent Cas. Co., 571 Fed.Appx. 918, 926 (11th Cir.2014) (quoting Jones, 908 So.2d at 443). Moreover, even “[i]f the complaint alleges facts that are partially within and partially outside the scope of coverage, the insurer is obligated to defend the entire suit.” Trizec Properties, Inc, v. Biltmore Constr. Co., Inc., 767 F.2d 810, 811-12 (11th Cir.1985) (citations omitted). Indeed, an insurer may be required to defend a suit even if it is later determined that there is no coverage. Trizec, 767 F.2d at 812. However, while any doubts regarding the duty to defend must be resolved in favor of the insured, “[a]n insurer has no duty to defend a lawsuit where the underlying complaint does not allege facts that would bring the complaint within the coverage of the policy.” Auto-Owners Ins. Co. v. Marvin Dev. Corp., 805 So.2d 888, 891 (Fla. 2d Dist.Ct.App.2001).
Following this body of law, the Brad-fields argue that the allegations of their complaint in the Underlying Case fairly and potentially bring their claims against Winfree within policy coverage and, therefore, Mid-Continent had a duty to defend. According to the Bradfields, they have sufficiently alleged that Winfree’s defective construction of their home resulted in “property damage” that is covered by the Winfree Policy. The Bradfields further argue that their complaint in the Underlying Case fairly and potentially avers that the property damage to their home occurred prior to the expiration of the Winfree Policies.
The first point of contention concerns whether the complaint in the Underlying •Case fairly or potentially alleges that Win-free caused “property damage” as that term is defined in the Winfree Policy. In order to understand this argument, a brief history of the purpose of Commercial General Liability Policies .and the Florida Supreme Court’s interpretation of the term “property damage” in such Policies is warranted.
A. The History of Commercial General Liability Policies in Florida
Commercial General Liability Policies are designed to protect an insured against certain losses arising out of business operations. United States Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 877 (Fla.2007) (citations omitted). The first standard form comprehensive general liability policy was drafted by the insurance industry in 1940. Since that time, the standard form has been revised numerous times, with the coverage provisions expanding and the exclusions narrowing. Id. at 878. The coverage changed from merely covering “accidents” -to also covering damages caused by an “occurrence.” During the same process, “business risk” exclusions were added to exclude from coverage: (1) any property damage to the insured’s products arising out of such products, and (2) any property damage to work performed by or on behalf of the insured caused by the insured’s work or any portion thereof. Id. In addition, starting in 1976, insurers offered products completed operations hazard coverage, which eliminated the exclusion for “work performed on behalf of the named insured” with respect to completed operations. Id. at 879.
The most recent revisions to Commercial General Liability Policies took place in 1986. These revisions modified the business risk exclusions to include the j(5) and j(6) exclusions ehminating coverage for:
j(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; or
j(6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.
The 1986 revisions also added a new “your work exclusion” with an exception for subcontractor work:
I. “Property damage” to “your work” arising out of it or any part of it and included in the “products completed operations hazard.”
This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. •
The Supreme Court of Florida first addressed the definition of “property damage” in Commercial General Liability Policies in a 1980 decision, LaMarche v. Shelby Mut. Ins. Co., 390 So.2d 325 (Fla.1980). LaMarche dealt with a pre-1986 Commercial General Liability Policy, but the facts of LaMarche are strikingly similar to those in this case. A general contractor built a residential home, and the homeowners claimed that the work was deficient, resulting in structural defects and other related damages. The contractor was insured under a Commercial General Liability Policy that contained exclusions for: (1) “property damage to the named insured’s products arising out of such products or any part of such products;” and (2) “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.” LaMarche, 390 So.2d at 326. Thus, the question before the Florida Supreme Court was whether coverage included payment for the cost of replacing defective materials and workmanship.
The LaMarche Court determined that coverage did not exist based on the applicable exclusions. In so holding, the Florida Supreme Court noted that the purpose of Commercial General Liability Policies was “to provide protection for personal injury or for property damage caused by the completed product, but not for the replacement and repair of that product.” 390 So.2d at 326.
To interpret the policy as providing coverage for construction deficiencies, as asserted by the petitioners and a minority of states, would enable a contractor to receive initial payment for the work from the homeowner, then receive subsequent payment from his insurance company to repair and correct deficiencies in his own work. We find this interpretation was not the intent of the contractor and the insurance company when they entered into the subject contract of insurance, and the language of the policy clearly excludes this type of coverage. Rather than coverage and payment for building flaws or deficiencies, the policy instead covers damage caused by those flaws. We agree with the explanation of this type of coverage as stated by the Supreme Court of New Jersey in Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 405 A.2d 788 (1979), in which it said:
An illustration of this fundamental point may serve to mark the boundaries between “business risks” and occurrences giving rise to insurable liability. When a craftsman applies stucco to an exterior wall of a home in a faulty manner and discoloration, peeling and chipping result, the poorly-performed work will perforce have to be replaced or repaired by the tradesman or by a surety. On the other hand, should the stucco peel and fall from the wall, and thereby cause injury to the homeowner or his neighbor standing below or to a passing automobile, an occurrence of harm arises which is the proper subject of risk-sharing as provided by the type of policy before us in this case. 405 A.2d at 791-92.
Id, at 326-27.
Sequentially, the Florida Supreme Court’s next discussion of the definition of “property damage” took place in 2007. In United States Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871 (Fla.2007), the Court dealt with a post-1986 Commercial General Liability Policy which included the j(5) and j(6) exclusions, as well as products completed operations hazard coverage — in other words, a policy virtually identical to the Winfree Policy. The insured in J.S.U.B., like Winfree, was a general contractor who built residential homes that later showed signs of damage. Where J.S.U.B. differs slightly from the present case is-the conflict at issue: J.S.U.B. involved the question of whether a Commercial General Liability Policy provided coverage when a claim was made against a general contractor (the insured) for damage to the completed project caused by a subcontractor’s defective work. 979 So.2d at 874-75.
The J.S.U.B. Court answered this question in the affirmative. In so doing, the Court made several pronouncements that are of particular relevance to the definition of “property damage” applicable to all claims, including those against general contractors. Significantly, the Court recognized the “difference between a claim for the costs of repairing or removing defective work, which is not a claim for ‘property damage,’ and a claim for the costs of repairing damage caused by the defective work, which is a claim for ‘property damage.’ ” 979 So.2d at 889.
[Fjaulty workmanship or defective work that has damaged the otherwise nonde-fective completed product has caused “physical injury to tangible property” within the plain meaning of the definition in the policy. If there is no damage beyond the faulty workmanship or defective work, then there may be no resulting “property damage.”
Id. The Court then held that because the case involved a claim for repairing the collateral structural damage to the completed homes and not a claim for the cost of repairing the subcontractor’s defective work itself, that “property damage” existed that was covered under the policy. Id. at 890.
The J.S.U.B. Court also took care to distinguish, but not recede from, its prior ruling in LaMarche. The Court noted that LaMarche involved a pre-1986 Commercial General Liability Policy and, more significantly, addressed coverage for a contractor’s own defective work rather than the work of a subcontractor. J.S.U.B., 979 So.2d at 891.
The Florida Supreme Court’s next and most recent decision addressing the definition of “property damage” in Commercial General Liability Policies was rendered the very next year. In Auto-Owners Ins. Co. v. Pozzi Window Co., 984 So.2d 1241 (Fla.2008), a homeowner contracted to build a home, and purchased custom windows from a retailer that were manufactured by Pozzi Window Company (the insured) and installed by a subcontractor. After moving in, the homeowner complained of water leakage around the windows as well as water damage to other areas. However, it was not clear whether the damage was due to defective installation or defective design and manufacture of the windows, or both. Pozzi, 984 So.2d at 1243-44. The manufacturer was insured under a Commercial General Liability Policy with provisions and exclusions nearly identical to those in the Winfree Policy. The insurer provided coverage for property damage caused by the leaking windows, but refused .to provide coverage for the cost of repair or replacement of the windows, arguing that such costs did not constitute “property damage.”
Following the rationale of J.S.U.B., the Pozzi Court held that “the mere inclusion of a defective component, such as a defective window or the defective installation of a window, does not constitute property damage unless that defective component results in physical injury to some other tangible property.” Pozzi, 984 So.2d at 1248.
Accordingly, if the claim in this case is for the repair or replacement of windows that were defective both prior to installation and as installed, then that is merely a claim to replace a “defective component” in the project.” As the Supreme Court of Tennessee recently explained:
[A] “claim limited to faulty workmanship or materials” is one in which the sole damages are for replacement of a defective component or correction of faulty installation.... [The contractor’s] subcontractor allegedly installed the 'windows defectively. Without more, this alleged defect is the equivalent of the “mere inclusion of a defective component” such as the installation of a defective tire, and no “property damage” has occurred.
Travelers Indem. Co. of Am. v. Moore & Assocs., Inc., 216 S.W.3d 302, 310 (Tenn.2007) (emphasis supplied). Because the Subcontractor’s defective installation of the defective windows is not itself “physical injury to tangible property,” there would be no “property damage” under the terms of the CGL policies. Accordingly, there would be no coverage for the costs of repair or replacement of the defective windows.
Conversely, if the claim is for the repair or replacement of windows that were not initially defective but were damaged by the defective installation, then there is physical injury to tangible property. In other words, because the'windows were purchased separately by the Homeowner, were not themselves defective, and were damaged as a result of the faulty installation, then there is physical injury to tangible property, i.e., windows damaged by defective installation. Indeed, damage to the windows themselves caused by the defective installation is similar to damage to any other personal item of the Homeowner, such as wallpaper or furniture. Thus, coverage would exist for the cost of repair or replacement of the windows because the Subcontractor’s defective installation caused property damage.
B. Application of Florida Law to the Present Case
Following Florida law, analysis of this case therefore turns on the question of whether the Bradfields’ complaint in the Underlying Case alleged damages only for the cost of repairing or replacing the work performed by Winfree, or whether the complaint alleged damages for repairing other property that suffered damage due to Winfree’s faulty workmanship. The Court finds that even under the most liberal and broadest of .readings, the complaint only alleges damages for the cost of repairing or replacing defective work performed by Winfree and/or defective materials installed by Winfree and, as such, there was no “property damage” covered by the Winfree Policy.
The complaint alleges that the Bradfield home “suffers from latent construction defects that materially affect the structural integrity” of the home. (Doc. 25-1, ¶ 12). Eight categories of latent defects are then listed: (a) water intrusion on the tile roof, windows, and pool bath; (b) mold; (c) code violations in the garage drywall; (d) improper sloping on the front balcony; (e) improper installation of the air handler and windows; (f) improper ceiling installation; (g) improper installation of combustible materials in the summer kitchen; and (h) improper installation of roofing materials, (Id, ¶ 13).
The complaint next states that the latent defects “are more fully identified” in the Endeavour Report, which is attached to the complaint as an exhibit (Id, ¶ 14). That Report, however, merely lists nine (9) categories of items that were either improperly installed, or were installed with improper materials. For example, the Report states that “it is believed the roof tiles were not installed in accordance to code or specifications show [sic] on the plans” resulting in leaks to the roof, and were missing metal clips on the “starter row” of the roof. (Doc. 28-1, Ex. B, p. 2 and attached Oviedo Roofing Report). The Endeavour Report also lists the installation of potentially toxic drywall, which would need to be replaced; a belief that the windows “have not been installed per manufacturer specifications;” the use of the wrong thickness of drywall (1/2 inch instead of 5/8 inch), which is “a major code violation;” an improperly sloped front balcony that will require replacement; improper installation of the pool decking which “can be fixed by removal of the decking and re-elevating the same” or “installing a drain;” improper finishing of the a/c handler expansion with plywood instead of the same materials used in the rest of the home; and a belief that the construction materials used to install the summer kitchen “pose a fire hazard.” (Id., pp. 2-9).
None of these categories of purported defects discuss any damage to any other portion of the Bradfield Home. For example, there is no mention of damage to floors, walls, ceilings, cabinetry, doors, or appliances, in fact the word “damage” is never used in the Report at all. And while the Endeavour Report mentions the phrase “water intrusion” there is no explanation anywhere of what “water intrusion” means, and more importantly, (and redundantly) there is no discussion of what portions of the Bradfield Home were damaged by this “water intrusion.” Rather, each category is limited solely to claims that Winfree used the wrong materials (drywall, a/e handler plywood, combustible materials on the summer kitchen), or that Winfree potentially installed portions of the home incorrectly (windows, front balcony, pool decking), resulting in damage solely to the improperly installed item (roof leaks due to improperly installed roof). Under LaMarche, J.S.U.B., and Poz-zi, it is thus clear that the complaint in the Underlying Case only sought damages for the repair and replacement of defective materials and/or defective work performed by Winfree. Such claims do not constitute “property damage” that is covered under the Winfree Policy, and therefore Mid-Continent did not have a duty to defend Winfree.
This result is further supported by the Eleventh Circuit Court of Appeals decision in Amerisure Mut. Ins. Co. v. Auchter Co., 673 F.3d 1294 (11th Cir.2012), in which Florida law supplied the rule of decision. Auchter involved a Commercial General Liability Policy identical to the Wi