Held: Insurance Company's Motion for Summary Judgment Denied.
The case of United Nat'l Insurance Co. v. Best Truss Co., Download United Nat'l Insurance Co. v. Best Truss Co. (S.D. Fla. Case No. 09.22897, Order Filed December 3, 2010) PUBLIC ACCESS, also published as 2010 WL 5014012 (S.D. Fla. December 3, 2010)(authorized Westlaw password required to access Westlaw) has presented an Order which is important to both Federal Evidence and Florida Insurance Law.
First, the Federal Court held that it was proper to consider an Affidavit of the Policyholder's Expert Witness which was filed after the Expert's Report. In the Affidavit, the Expert "clarifies his position regarding the manifestation of the damage," a key issue in the quest to determine whether there was Insurance Coverage for alleged Property Damage because of trusses that were used in the construction of a new bank building. See United Nat'l Insurance Co. v. Best Truss Co., 2010 WL 5014012 at *1, *5.
The Federal Court considered the Expert's post-Report Affidavit in that Case because the Affidavit and the Report "are not inconsistent." Id. Nor was the Affidavit a "sham. The Court can properly consider the Affidavit in the disposition of the Motion." Id.
Second, the Affidavit evidenced manifestation of Property Damage within the Policy Period of at least one of the Insurance Policies issued by United to Best Truss. The Policies required an "Occurrence" which results in "Property Damage" during the policy term, in pertinent part. As the Federal Court put it:
In Florida, the accident or injury triggering coverage is deemed to have occurred "when property damage manifests itself, not when the negligent act or omission giving rise to the damage occurs." [Citations omitted.] However, proof of discovery of the damage is not required to trigger coverage if the damage was visible and capable of being discovered.
Id. at *4. [Emphasis added.]
The Expert's Affidavit provided evidence of manifestation during the policy term. However, the Property Damage addressed by the Expert's Affidavit Testimony was not readily visible. Instead, it was physically obstructed. It was capable of being discovered if a drop ceiling were removed. The Federal Court held that this was admissible evidence of Property Damage manifestation:
Contrary to United's assertion, visibility from within the enclosed and inaccessible attic does constitute manifestation.
Id. at *5. [Emphasis added.]
Parenthetically, the Online Docket of this Case on Pacer, the electronic docket of the Federal Courts, reflects that the Case was dismissed without prejudice on December 13, 2010 by an Order of Court entered upon a Joint Stipulation for Dismissal Without Prejudice which was filed the same day.
With these two holdings in this Order, the Federal Court provided important rulings for both Federal Evidence and Florida Insurance Law.
The Federal Court in this Case explicitly did not, however, address "whether the duty to defend is implicated" nor did the Court draw any distinctions between the Insurance Company's Duty to Defend and its Duty if any to Indemnify. Considerations particular to determining a Liability Insurance Company's Duty to Defend in Cases involving Insurance Policies similar to those in the United National Insurance Co. v. Best Truss Co. Case are addressed in Section 3:48 by Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (Shepard's/McGraw-Hill Second Edition; West Publishing Co. 2010 Supplement).
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