March 6th, 2018
The Court of Appeals holds that loss of use of real property constitutes “property damage” under CGL Policy
By, Mark A. Boyle, Esq.
Many lawsuits involving real property and defective construction claims include claims for damages that do not constitute physical damage to tangible property. Generally, COMMERICAL GENERAL LIABALITY (“CGL”) carriers eschew coverage for such claims. The recent decision in Mid-Continent Cas. Co. v Adams Homes of Northwest Florida, Inc., No. 17-12660, 2018 WL 834896 (11 Cir. Feb. 13, 2018) clearly makes loss of use claims—even where no physical damage to tangible property occurs—potentially covered claims under CGL policies in Florida.
Adams Homes of Northwest Florida (“ADAMS”) was sued by a series of homeowners in an integrated community in which the residents were allotted common access to amenities including golf courses, restaurants, a marina, and shops. ADAMS built a series of homes within the development. The homeowners in the development eventually sued ADAMS claiming “homes, the streets adjacent to the homes, and the common areas they have access to, are now prone to flooding “which has made “[Homeowners’] ordinary use or occupation of their property physically uncomfortable” and “disturb[ed] the [Homeowners’] free use … of their property.” Homeowners sued ADAMS in state court seeking damages for ADAMS’ alleged negligence in failing to ensure the installation of adequate drainage.
Mid-Continent Casualty Company (“MCC”) insured ADAMS under a series of commercial general liability policies which included the standard INSURANCE SERVICES OFFICE’s (“ISO”) CGL property damage definition. Under those policies, MCC had the “right and duty to defend the insured against any ‘suit’ seeking damages because of ‘bodily injury’ or ‘property damages’ covered thereunder.” The policy defined property damage as follows:
- Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
- Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the ‘occurrence’ that caused it.
MCC began defending ADAMS under a reservation of rights but also asserted a declaratory relief action in which MCC attempted to disclaim both the duty to defend and the duty to indemnify. The trial court agreed with MCC that the claims of the Plaintiff did not constitute “property damage” as that terms was defined under the CGL policy.
The 11th Circuit disagreed relying both on the plain language of the policy and a Florida intermediate appellate court decision, McCreary v. Florida Residential Prop. and Cas. Joint Underwriting Ass’n, 758 So.2d 692, 693 (4th Dist. Ct. App. 1999). In McCreary, the court determined that the actions of the defendant ultimately rendered the Rebalko’s property unsafe and unsecure; thereby resulting in loss of use. Id. at 695. In response to MCC’s response argument that the water was “relatively harmless” and not likely to cause “an immediate danger”, the Court noted:
“But the absence of allegations that the storm water runoff is placing Homeowners in immediate danger does not counsel a different result. Physical discomfort in the use of property, like insecurity and unsafety in the use of property, raises the specter of loss of use. Although it is unclear whether the physical discomfort caused by the run-off is severe enough to prevent Homeowners from using their property, the same was true of Rebalko’s allegations in McCreary. Rebalko did not allege he stopped using his property because of the McCrearys’ dogs; rather, Rebalko alleged he felt insecure and unsafe in its use. Like Rebalko, Homeowners are entitled to have any ambiguity about whether the physical discomfort caused by the run-off was severe enough to cause loss of use resolved in their favor. “If the allegations of the complaint leave any doubt as to the duty to defend, the question must be resolved in favor of the insured.” Lime Tree Vill.Cmty., 980 F.2d at 1405.
Thus, the Court held that there was a duty to defend.
In addition to its holding that a potential loss of use claim required a defense under the CGL policy the 11th Circuit held that the fact that the damages in questions were “purely economic” did not bar the claims under the circumstances of this case noting “We have not found any support for applying the principle that general-liability policies do not cover purely economic damages in a case like this one.”
Until the ADAMS v MCC decision, most of the focus in insurance litigation for defective construction involved the question of whether or not the “property damage” definition had been met by a showing of physical injury to tangible property. See U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871 (Fla. 2007), Auto-Owners Ins. Co. v Pozzi Windows Co., 984 So. 2d 1241 (Fla. 2008). The ADAMS v MCC decision now gives a potential claimant under a CGL policy two avenues for pleading into coverage: 1. physical damage to tangible property; and/or 2. loss of use. Practitioners who wish to plead their claims into coverage should plead either or both elements as applicable.
November 19th, 2015
The Eleventh Circuit’s Decision in Carithers v. Mid-Continent Cas. Co., 782 F.3d 1240 (11th Cir. 2015)
By: Amanda K. Anderson, Esquire
Prior to the Eleventh Circuit’s recent decision in Carithers, the law surrounding the removal and replacement of the defective work itself, even if it caused “property damage”, was less than clear. SeeBoran Craig Barber Homes v. Mid-Continent, No. 2:06-cv-89 – Doc. 262 (M.D. Fla. Feb. 19, 2009); Arnett v. Mid-Continent Cas. Co.,2010WL2821981 (S.D. Fla. 2010); Assurance Company of America v. Lucas Waterproofing Co. Inc., 581 F.Supp.2d 1201 (S.D. Fla.2008).
In Carithers, the district court found that a balcony was defectively constructed, which caused damage to a garage. Carithers v. Mid-Continent Cas. Co., 782 F.3d 1240 (11th Cir. 2015). The district court also recognized that, under Florida law, the defectively constructed balcony was not covered by the policy. Id. However, the district court found as a fact that, in order to repair the garage (which the parties agree constituted property damage), the balcony had to be rebuilt. Id.
The insurer, Mid–Continent Casualty Company (“MCC”), did not contend that this factual finding was clearly erroneous. Id.Rather, MCC claimed that the Carithers cannot recover for any defective work, even where repairing that work is a necessary cost of repairing work for which there is coverage. Id.
The Eleventh Circuit held that the district court did not err in awarding damages for the cost of repairing the balcony. Id. Under Florida law, the Carithers had a right to “the costs of repairing damage caused by the defective work….” U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 889 (Fla. 2007). Since the district court determined that repairing the balcony was part of the cost of repairing the garage, which was defective work, the Carithers were entitled to these damages.Carithers, 782 F.3d at 1251. Thus, the Eleventh Circuit has clarified that removal and replacement of the defective work itself is covered a “damages because of ‘property damage’”.
November 12th, 2015
By, Mark A. Boyle, Esq.
Does the Commercial General Liability (“CGL”) cover the cost to mitigate against future property damage? In other words, does the CGL cover “preventative medicine?” The answer in Florida appears to be yes.
An issue that regularly appears in construction defect litigation is the question of whether or not a commercial general liability insurer is required to pay for repairs to areas of the project which have not yet sustained physical damage, but are likely or virtually certain to sustain such damage in the future. Florida had no specific answer to whether such claims were covered in the past, until, the recent decision of Pavarini Construction Co. v. ACE American Insurance Company, case no.: 1:14-cv-20524-JLK (Amended Order dated 10-30-15). In Pavarini, ACE was the commercial general liability insurer for Pavarini Construction Co. Pavarini was seeking coverage for a series of defective construction conditions. ACE was an excess CGL insurer, whose following form policy necessarily imported the standard CGL property damage definition found in the underlying policy issued by AIG. In relevant part, the property damage definition in the CGL policy provides:
Property damage means:
- Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
- Loss of use of tangible property that is not physically injured. All such loss shall be deemed to occur at the time of the occurrence that caused it.
In addressing this issue, the Pavarini court noted the relatively recent Florida Supreme Court decision in J.S.U.B. recognizing that defective construction conditions could constitute both a covered “occurrence” and “property damage” within the meaning of a CGL policy. ACE took the position that the mere existence of defective conditions did not trigger coverage and thus, they had very limited obligations. Citing the recent 11thCircuit Court of Appeals decision in Carithers v. Mid-Continent Casualty Co., 782 F. 3d 1240 (11th Cir. 2015), the Pavarini Court noted:
There, a balcony that had been defectively installed by a subcontractor was causing runoff and resulting water damage to an adjacent garage. See Id.Although the balcony itself did not constitute independent “property damage” under the terms of the policy, its replacement was necessary in order to effectively repair the garage. See Id. At 1251. “In other words, to repair the garage, it was necessary to completely replace the defectively constructed balcony.” Memorandum and Order, Carithers v. Mid-Continent Cas. Co., No. 12-008890 (M.D. Fla. Mar. 11, 2014), DE 126 at 8. Similarly here, in order to adequately repair the non-defective project components, the building had to be stabilized. Even if the predominant objective of the repair effort was to fix the instability caused by the defective subcontractor work, it is undisputed that the same effort was required to put an end to ongoing damage to otherwise non-defective property, e.g. damage to stucco, penthouse enclosure, and critical concrete structural elements. See DE 128 at 2-3; DE 131 at 52-63. Thus, the ACE policy provides for complete indemnification.
In addition to these holdings, the Court noted the following in a footnote.
Citing J.S.U.B, Defendant argues somewhat incidentally that mitigation of damages is not covered. Nowhere in J.S.U.B. is mitigation of damages mentioned. On the contrary, J.S.U.B.stands for the proposition that claims for repairing structural damage caused by the defective work of subcontractors may be covered. As a natural corollary, coverage may exist for costs to repair defective work in order to prevent further structural damage and covered loss. See, e.g. Carithers v. Mid-Continent Cas. Co., 782 F. 3d 1240, 1251 (11th Cir. 2015). [Emphasis Added]
The Court’s holding is consistent with numerous decisions across the country, finding that damage mitigation, once the property damage threshold has been established as an initial matter, are covered. See, e.g., AIU Ins. Co. v. Super. Ct., 799 P.2d 1253, 1272 (Cal. 1990) (coverage for “remedial and mitigative actions”); Globe Indem. Co. v. State, 118 Cal. Rptr. 75, 79 (Ct. App. 1974) (explaining that it would “seem strangely incongruous” to the insured “that his policy would cover him for damages to tangible property destroyed through his negligence in allowing a fire to escape but not for the sums incurred in mitigating such damages by suppressing the fire”); Am. Econ. Ins. Co. v. Commons, 552 P.2d 612, 613-14 (Or. Ct. App. 1976) (adopting rationale of Globe Indem.); Aronson Assocs., Inc. v. Pa. Nat’l Mut. Cas. Ins. Co., 14 Pa. D. & C.3d 1, 7 (C.P. 1977), aff’d 422 A.2d 689 (Pa. Super. 1979) (per curiam) (“preventive measures can be recovered where they are required to protect against a third person being harmed.”).
Indeed, “[t]o find otherwise would require the insured to intentionally allow property damage or bodily harm to occur for the damages to be covered.” Big-D Constr. Corp. v. Take it for Granite Too, 917 F. Supp. 2d 1096, 1109 (D. Nev. 2013). As explained by one court: It is folly to argue that if a policy owner does nothing and thereby permits the piling up of mountainous claims at the eventual expense of the insurance carrier, he will be held harmless of all liability, but if he makes a reasonable expenditure and prevents a catastrophe he must do so at his own cost and expense.
Leebov v. U.S. Fid. & Guar. Co., 165 A. 2d 82, 84 (Pa. 1960).
So, for now, in Florida, mitigation damages are here to stay.
June 17th, 2014
By Amanda K. Anderson, Esquire
Boyle, Gentile, Leonard & Crockett, P.A.
- What is Trigger?
Typically, a Commercial General Liability (“CGL”) policy covers “property damage [that] occurs during the policy period,” when the damage is caused by an “occurrence.” “Occurrence” is defined by the typical post-1986 ISO CGL form as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” This type of policy is referred to as an “occurrence policy.” Arad v. Caduceus Self Ins. Fund, Inc., 585 So. 2d 1000 (Fla. 4th DCA 1991). Today, some CGL policies explicitly refer to a “trigger of coverage,” and if so, that “trigger” applies.
Trigger is simply “a label for the event or events that under the terms of the insurance policy determines whether a policy must respond to a claim in a given set of circumstances.” Robert D. Fram, End Game: Trigger of Coverage in the Third Decade of CGL Latent Injury Litigation, 454 PRACTICING L. INST. 9 (1993). In most circumstances, the event causing damage occurs simultaneously with the resulting harm. The issue is more complex where the damage occurs (or is reasonably alleged to have occurred), but is not discovered until a later time. Courts in different jurisdictions have reached disparate conclusions under comparable facts and identical policy language. In continuing damage or delayed discovery cases, which is the only time a trigger argument applies, courts have adopted no fewer than five trigger theories. Dow Chems. Co. v. Assoc. Indem. Corp., 724 F. Supp. 474, 478-79 (E.D. Mich. 1989).
- Five Main Theories Regarding Trigger of Coverage.
First is the continuous trigger approach, which holds that all policies on the risk from the initial exposure through manifestation are triggered. See e.g., Keene Corp. v. Ins. Co. of N. Am., 667 F.2d 1034 (D.D.C. 1981).
Second is the exposure theory, which presumes that damage occurs when exposure to the causative agent or event takes place and not when the symptoms of the exposure become evidence. See e.g., Ins. Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir. 1980).
Third is the actual injury or injury-in-fact theory, which focuses on when the injury or damage actually occurred, irrespective of when it was found, who found it or who was capable of finding it. (This trigger is sometimes referred to as the “actual damage” or “damage-in-fact” trigger, though the more common phrase uses the term “injury”, regardless of whether the context is property damage or bodily injury.) If it happened in more than one policy period, then multiple policies of insurance may be triggered. See Axis Surplus Ins. Co. v. Contravest Construction Co., 2012 WL 2048303, at * 1 (M.D. Fla. June 5, 2012), 23 Fla. L. Weekly Fed. D. 279; Johnson-Graham-Malone, Inc. v. Amerisure Ins. Co., 18 Fla. L. Weekly Supp. 870 (Fla. 4th Cir. Apr. 29, 2011) appealdismissed by Amerisure Ins. Co. v. Johnson-Graham-Malone, Inc., 66 So. 3d 415 (Fla. 1st DCA 2011); see e.g., Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W. 3d 20 (Tex. 2008); Am. Home Prods. Corp. v. Liberty Mut. Ins. Co., 565 F. Supp. 1485 (S.D.N.Y. 1983), aff’d as modified, 748 F.2d 760 (2d Cir. 1984).
Fourth is the manifestation theory, which holds that policies are triggered when the damage becomes “manifest,” or is discovered. Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 682 F.2d 12 (1st Cir. 1982). The question always remains: to whom must the property damage have manifested.
Last, there is a double-trigger theory, which holds that there are two triggers, exposure and manifestation, regardless of whether damage continues between those two events. See e.g., Zurich Ins. Co. v. Raymark Indus., Inc., 514 N.E. 2d 150 (Ill. 1987). As Dow Chemicals counsels, however, “trigger rulings are most appropriately derived by reference to the operative policy language, as opposed to the judicial gloss placed upon similar language in ostensibly analogous cases.” Dow Chemicals 724 F. Supp. at 479.
III. Case Law in Florida
There are two main theories of trigger in Florida: (1) injury-in-fact; and (2) manifestation. The focus is on the “property damage” as the signaling event – the only event under the language of the CGL – that must “occur” during the policy period in order to be covered. See Travelers v. C.J. Gayfer’s, 366 So. 2d 1199 (Fla. 1st DCA 1979); Johnson-Graham-Malone, 18 Fla. L. Weekly Supp. 870; and Trizec v. Biltmore, 767 F. 2d 810 (11th Cir. 1985)(Florida courts have rejected the “manifestation trigger” in favor of coverage triggered by property damage alone taking place during the policy period).
- Plain Meaning Analysis and Florida’s Rules of Contract Construction Support the Injury-in-Fact Trigger
The primary case in Florida holding that the “injury-in-fact” trigger applies is Axis Surplus Ins. Co. v. Contravest Construction Co., 2012 WL 2048303, at * 1 (M.D. Fla. June 5, 2012), 23 Fla. L. Weekly Fed. D. 279. The court reasoned that because the policy at issue required the insurer to cover “property damage . . . caused by an occurrence,” just as the court in Trizec did, the physical injury or destruction of tangible property had to occur during the policy period in order to trigger coverage, and thus, “injury-in-fact” was the applicable trigger. Id.
Under Florida law, courts must construe insurance policies according to the plain meaning of the policy language. Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000); see also Fla. Stat. § 627.419(1) (“Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any application therefore or any rider or endorsement thereto.”). Florida rules of insurance policy interpretation do “not allow courts to rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.” Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So. 2d 938, 942 (Fla. 1979). If a policy is silent on an issue, a court may not “add to or read in language not contained on the face of the policy.” Meister v. Utica Mut. Ins. Co., 573 So. 2d 128, 130 (Fla. 4th DCA 1991).
Furthermore, in the case of Mid-Continent Cas. Co. v. Frank Casserino Const., Inc., the Middle District interpreted a CGL policy in support of the proposition that damage must occur during the policy period even if it is not discovered until after the policy expires by holding that that a plaintiff’s expert’s affidavit could provide support showing that even though damage had not yet been discovered, that damage was occurring during the policy period. Mid-Continent Cas. Co. v. Frank Casserino Const., Inc., 721 F. Supp. 2d 1209 (M.D. Fla. 2010).
Additionally, Judge Hugh A. Carithers of the Duval County Circuit Court of the Fourth Judicial Circuit, in the case of Johnson-Graham-Malone, Inc. v. Amerisure Ins. Co.held that the carrier owed the insured a duty to defend because the operative underlying complaint gave rise to at least a potential that covered property damage actually occurred during one or more of the carrier’s CGL policies. Johnson-Graham-Malone, Inc, 18 Fla. L. Weekly Supp. 870 appeal dismissed by Amerisure Ins. Co. v. Johnson-Graham-Malone, Inc., 66 So. 3d 415 (emphasis added). Judge Carithers relied on the case of Travelers Insurance Co. v. C.J. Gayfer’s & Co., 366 So. 2d 1199 (Fla. 1st DCA 1979).
C.J. Gayfer’s is one of many Florida cases that have long held that, under an occurrence-based CGL policy where damage and the causative event do not occur simultaneously, it is the damage that must occur, or be fairly alleged to occur, during the policy period, in order for coverage to exist and not the happening of the event or act that caused the damage. The applicable line of cases begins in 1964 with New Amsterdam Casualty Co. v. Addison, 169 So. 2d 877 (Fla. 2d DCA 1964), in which the Second District Court of Appeal held, as a matter of first impression in Florida, that “[t]he time of the occurrence of an accident, within the meaning of a policy of liability, is generally deemed to be the time when the complaining party actually was damaged and not when the wrongful act was committed.” Id. at 886.
Relying on New Amsterdam Casualty Co. v. Addison, the First District Court of Appeal in 1978 similarly held that occurrence-based liability coverage is triggered “when the complaining party is damaged,” regardless of when the causative act occurred. Hertz Corp. v. Pugh, 354 So. 2d 966, 969 (Fla. 1st DCA 1978). A year later, the same court held in C.J. Gayfer’s, that “the phrase ‘caused by an occurrence’ informs the insured that an identifiable event other than the causative negligence must take place during the policy period.” C.J. Gayfer’s, 366 So. 2d 1199. The term ‘occurrence’ is commonly understood to mean the event in which negligence manifests itself in property damage or bodily injury, and it is used in that sense [in the policy].” Id.at 1202. Although the court used the term “manifest”, it applied the actual injury/injury-in-fact trigger: the date the water damage actually occurred. See Id.
As discussed supra, in Trizec, the Eleventh Circuit relied in part on this line of cases to hold that under Florida law and the language of an occurrence-based policy, damage that continues, or is fairly alleged to continue, through multiple policy periods can trigger coverage under each successive policy. Trizec, 767 F. 2d 810. The court specifically rejected manifestation as a trigger of coverage. Id. at 813 (emphasis added). Under facts similar to those here, Trizec involved a carrier’s duty to defend its policyholder against a claim alleging property damage caused by negligent construction of a roof deck. Id. The construction took place from 1971 to 1975, the carrier was on the risk from 1972 to 1976, and the damage was discovered in 1979. Id. The carrier claimed it did not have a duty to defend, arguing “the occurrence of the damage can only trigger coverage where it is discovered or has ‘manifested’ itself.” Id.
The court disagreed: “the language of the policy itself belies Liberty’s assertions,” adding:
The potential for coverage is triggered when an “occurrence” results in “property damage.” There is no requirement that the damages “manifest” themselves during the policy period. Rather, it is the damage itself which must occur during the policy period for coverage to be effective. Here, the actual date that the damage occurred is not expressly alleged, but the language of the complaint, at least marginally and by reasonable implication, could be construed to allege that the damage (cracking and leaking of roof deck with resultant rusting) may have begun to occur immediately after installation, 1971 to 1975, and continued gradually thereafter over a period of time . . . . Because the complaint alleges facts which fairly bring the cause within the coverage of the insurance contract, there is a potential for coverage and [the carrier] owes [the policyholder] a duty to defend the main action.
Id. at 813 (internal citation omitted); see also Boardman Petroleum, 135 F.3d at 754 n. 13 (“[c]ourts applying Georgia, Florida, and Alabama law . . . have rejected the ‘manifestation trigger of coverage’ approach in favor of an approach under which coverage is triggered by property damage alone taking place during the policy period” citingTrizec)(emphasis added).
- Cases Supporting the Manifestation Trigger
The primary case holding that “manifestation” is the applicable trigger in Florida is Auto Owners Ins. Co. v. Travelers Cas. & Surety Co. , 227 F.Supp. 2d 1248 (M.D. Fla. 2002). The issue becomes the question of whether there can be more than one manifestation. See Boran Craig Barber Homes, Inc. v. Mid-Continent Cas. Co., Case Number 2:06-cv-00089-UA-SPC (M.D. Fla. Feb. 19, 2009)(holding there can be more than one manifestation).
The Middle District of Florida then uniquely took an odd turn with regard to trigger of coverage decisions, in the Auto Owners case, in support of the position that the appropriate trigger of coverage is manifestation. In Auto Owners, the court was called upon to decide whether a policy covered property damage caused by a leaking pipe, where the leak was discovered after the applicable policy expired but the damage occurred during the policy period. Auto Owners, 227 F.Supp. 2d 1248.
The court started out in the right direction, finding that in Florida “the potential for coverage is triggered when an ‘occurrence’ results in ‘property damage.’ There is no requirement that the damages be ‘manifest’ during the policy period. Rather, it is the damage itself which must occur during the policy period for coverage to be effective.” Id. at 1265-66 (citing Trizec, 767 F. 2d at 813).
Two paragraphs later, however, the court, without explanation or solace in logic and in contravention to Trizec, states, “Florida courts follow the general rule that the time of occurrence within the meaning of an ‘occurrence’ policy is the time at which the injury first manifests itself”, and thus “the ‘trigger’ for coverage for the CGL policies is when the damage occurs and if damage is continuously occurring, the ‘trigger’ is the time the damage ‘manifests’ itself or is discovered.” Id. at 1266. The court then held that the trigger of coverage (and the occurrence) was the date the leaking pipe was discovered, even though the damage caused by the leaking pipe “undisputedly occurred” before it was discovered. Id. at 1268.
The Auto Owners court’s internally inconsistent position resulted from its reliance on an Alabama case: American Motorists Insurance Co. v. Southern Security Life Insurance Co., 80 F. Supp. 2d 1280, 1284 (M.D. Ala. 2000), which in turn relies on C.J. Gayfer’s & Co., 366 So. 2d 1199. Auto Owners, 227 F. Supp. 2d at 1266. The C.J. Gayfer’scourt stated that an “occurrence” under the policy “is commonly understood to mean the event in which negligence manifests itself in property damage or bodily injury.” C.J. Gayfer’s & Co., 366 So. 2d 1199. Although the court used the term “manifest”, it applied the actual injury/injury-in-fact trigger: the date the water damage actually occurred. See Id.
Moreover, in the case of Amerisure Ins. Co. v. Albanese Popkin the Oaks Dev. Group, L.P., 2010 WL 4942972 (S.D. Fla. Nov. 30, 2010), the Southern District made the distinction that in Trizec, “[b]ecause the complaint in the underlying case was construed to have alleged that the damage occurred during the policy period, the question of when the damage manifested itself was irrelevant to the analysis,” but recognized Trizec’s holding that with an occurrence policy, “the critical inquiry is when did the insured sustain actual damage.” Id. Despite this, in purposely ignoring any continuously occurring damage, the Southern District found that “[m]anifestation of the damage [was] relevant…because it establishe[d] that…actual damage [was sustained] before the policy became effective.” Id. This holding further demonstrates inconsistencies in Florida as the court concluded that actual damage was sustained when those actual damages were manifest or seen or viewed or discovered and completely ignores any time frame between when the damages began or ended. At some point in time the damage began to happen/occur/exist/take place. At some point in time, prior to repair, those damages were iscovered/seen/observed/viewed/manifest. And there is some point in time that the damages were finally repaired – meaning – the damage ended. The Southern District has seemingly decided this case in a vacuum where time does not exist.
As demonstrated by the case law above, and given the recent Axis case, the courts appear to be shifting away from manifestation trigger and applying actual policy language in holding that the correct trigger is injury in fact.