Florida Supreme Court Punts on Construction Defect Case
Our readers will forigive a Massachusetts lawyer for questioning the counting skills of the Florida Supreme Court. In a recent opinion, however, the state Supreme Court has again discounted the value of precedent, throwing a certified issue Auto Owners Ins. Co. v. Pozzi Window Co., No. SCO6-779 (Fla. June 12, 2008)back to the U.S. Court of Appeals for the Eleventh Circuit due to a factual dispute that somehow eluded the Supreme Court in its original opinion last December.
Oon December 20, 2007 opinion, , the Florida Supreme Court had ruled that claims brought against a contractor for water damage caused by the defective installation of windows were not covered since CGL policies do not cover the cost of repair and replacement of defective work. The court contrasted its opinion with its December 20, 2008 opinion in JSUB , in which it held that there would be coverage for CD losses.
On June 12, however, the Florida Supreme Court econsidered its earlier opinon and ruled thatt it was unable to answer the Eleventh Circuit’s certified question owing to the fact that the court had failed to clarify whether the water damage resulted from defective installation, for which there would not be coverage, or defects in the installed windows themselves. In keeping with its earlier opinion in JSUB, the Supreme Court noted that if the windows were not defective prior to their installation, coverage would exist for the cost of repair or replacement of the windows because there was physical injury to tangible property (the windows) caused by their defective installation by a subcontractor. However, a different result would follow if the windows were in a defective condition before being installed and the damage to the completed project was therefore caused by defective windows rather than faulty installation alone.
