13 Fla. L. Weekly Supp. 43a
Insurance — Liability — Other insurance — Excess insurance — Where subcontractor orally agreed to provide $1,000,000 of general liability coverage to general contractor and contractor was included as an additional insured on subcontractor’s general liability policy, contractor was also an additional insured under terms of subcontractor’s excess or umbrella policy — Because umbrella policy specifically provided that insurance would not afford an additional insured limits of insurance in excess of the minimum limit of insurance the insured subcontractor agreed to provide, and contractor received $1,000,000 from general liability insurer, contractor was not entitled to any additional coverage under umbrella policy — Summary judgment granted in favor of umbrella policy insurer
WORTHINGTON COMMUNITIES, INC., Plaintiff, vs. TRANSPORTATION INSURANCE COMPANY, AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, and AMERICAN NATIONAL FIRE INSURANCE COMPANY, Defendants. Circuit Court, 20th Judicial Circuit, Lee County, Civil Action. Case No. 02-CA 736 L. November 2, 2005. R. Thomas Corbin, Judge. Counsel: Steven M. Brady. Lora A. Dunlap. John R. Sutton. Ralph L. Marchbank, Jr. William S. Reese.
ORDER GRANTING AMERICAN GUARANTEE’S MOTION FOR SUMMARY JUDGMENT AND DENYING AMERICAN NATIONAL’S MOTION FOR SUMMARY JUDGMENT
This matter came before the court on October 31, 2005, on the amended motion for summary judgment filed by American Guarantee and Liability Insurance Company on July 21, 2005, and also on American National Fire Insurance Company’s amended motion for summary judgment filed August 8, 2005. It is ordered:
1. Findings
During 1998 and 1999, Worthington was an owner and general contractor developing a property identified as the “Sutton Walk” project. Worthington had a general liability policy for this project insuring itself for $1,000,000. It also had an excess or umbrella policy from American National with limits of $4,000,000. Gary Consorto was a vice president of Worthington in 1998 and 1999. His affidavit dated March 29, 2005 proves that the “Sutton Walk” project is the same as the “Sutton Walker Gardens” project referenced in a Certificate of Insurance dated December 29, 1998. Juan C. Mejia was severely injured while working on that construction site. At the time he was employed by Sunshine Masonry who was a subcontractor of Worthington on this project.
At the first hearing on these motions, on November 22, 2004, two factual issues were in dispute: First, whether Sunshine was contractually required to obtain general liability coverage for Worthington, and, second, if so, the amount of coverage required. Now, after further discovery, these two questions are answered and there are no factual issues remaining. The record now shows that Sunshine orally agreed to provide $1,000,000 of general liability coverage to Worthington.
In particular, the deposition of Gary Consorto taken May 12, 2005 and his affidavit dated March 29, 2005 prove that Worthington and Sunshine made an oral agreement for Sunshine to provide $1,000,000 of general liability coverage for Worthington on the Sutton Walk project. He does not testify about any agreement requiring Sunshine to provide more than $1,000,000 of coverage to Worthington. When shown the Certificate of Insurance dated December 29, 1998 he said he could see from that Certificate that Sunshine had general liability, automobile liability and excess coverage in various amounts, but no where did he testify that Sunshine was contractually obligated to provide more than $1,000,000 in general liability coverage to Worthington. The Certificate corroborates his testimony. The Certificate of Insurance is a document certifying the coverage that Sunshine had in effect on December 29, 1998. It does not itself provide any coverage. Rather, it only states the coverage that Sunshine then had in effect.
It indicates that Sunshine then had a general liability policy and an automobile liability policy with the Transportation Insurance Company, each with limits of $1,000,000. It also shows that American Guarantee, or “Zurich Insurance Co.”, provided an umbrella or excess policy to Sunshine with limits of $6,000,000. American Guarantee is also known as “Zurich Insurance Co.” Under the heading of “special items” the Certificate states: “Re: Sutton Walker Gardens. With regards (sic) to the general liability Worthington Communities, Inc., shall be named as additional insureds. (sic)” This quoted language indicates that Worthington was an additional insured as to the $1,000,000 Transportation general liability policy.
The Transportation general liability policy provides under a “Contractor’s Blanket Additional Insured Endorsement”:
“A. WHO IS AN INSURED (Section II) is amended to include as an insured any person or organization (called additional insured) whom you are required to add as an additional insured on this policy under:
1. A written contract or agreement; or
2. An oral contract or agreement where a certificate of insurance showing that person or organization as an additional insured has been issued; . . .”
This language is unambiguous. This language makes Worthington an additional insured under the Transportation policy because (1) Mr. Consorto testified that Sunshine and Worthington made an oral agreement that required Sunshine to provide $1,000,000 of general liability coverage to Worthington and (2) a certificate of insurance was issued showing Worthington was added as an insured to the Transportation general liability policy. The Certificate of Insurance also corroborates the existence of the oral agreement. Presumably, Sunshine’s insurance agent would not have issued it without someone at Sunshine telling him to do so, and presumably Sunshine would not have asked for the Certificate with the language that Worthington was an additional insured under the $1,000,000 general liability policy if it had not been required to do so. Therefore, Transportation insured Worthington under its $1,000,000 general liability policy and, not surprisingly, Transportation has paid its policy limits on behalf of Worthington.
American Guarantee provided the excess or umbrella policy for Sunshine. The American Guarantee policy lists the Transportation policy in its “Schedule of Underlying Insurance” and provides under “SECTION III — WHO IS INSURED”:
“. . .
5. Subject to the terms and conditions of this policy, any additional insured included in the underlying insurance listed in the Schedule of Underlying Insurance but only to the extent that insurance is provided to such additional insured thereunder.
This insurance shall not afford such person or organization limits of insurance in excess of:
a. The minimum limit of insurance you agreed to provide; or
b. The limit of insurance under this policy
whichever is less.”
This language is also unambiguous. By these terms, Worthington is an additional insured under American Guarantee’s excess policy because Worthington was an additional insured under the Transportation policy and the Transportation policy is “included in the underlying insurance listed” in the American Guarantee policy.
But Worthington is insured by American Guarantee only to the “minimum limit of insurance” that Sunshine agreed to provide. Sunshine agreed to provide Worthington with $1,000,000 of coverage, and $1,000,000 is less than the limits of the American Guarantee policy, that is, $6,000,000. Further, the $1,000,000 has already been paid by Transportation on behalf of Worthington. Therefore, Sunshine’s obligation to secure $1,000,000 of coverage for Worthington has been fulfilled. There is no agreement for Sunshine to provide more coverage for Worthington.
2. Ruling
2.1 The motion of American Guarantee is granted. The motion of American National is denied. There are no genuine issues of any material fact. Worthington is not entitled to any coverage beyond the $1,000,000 paid by Transportation because that was all the coverage that Sunshine agreed to provide to Worthington. Therefore, Worthington is not entitled to any coverage under the American Guarantee excess policy. Penn America Insurance Company v. Florida Power & Light Company, 710 So.2d 597 (Fla. 4th DCA 1998).
2.2 The court reserves for further hearings any issues of attorney’s fees or court costs. The court directs counsel for American Guarantee to prepare the form of final judgment and submit it to the court when all remaining issues have been decided.
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