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Intervest Construction of Jax, Inc. v General Fidelity Insurance Company

Case No. 10-12613 (C.A. 11, Mar. 28, 2014)

I.



The controversy in this case is between an insurer, General Fidelity Insurance Company, and its insureds, Intervest Construction of Jax, Inc. and ICI Homes, Inc. (collectively “ICI”), regarding whether General Fidelity breached its obligations under a general liability insurance policy held by ICI.

The coverage dispute at issue arose from a personal injury suit brought against ICI by Katherine Ferrin, who purchased and lived in a home built by ICI. During the construction of Ferrin’s residence, ICI hired Custom Cuttings, Inc. to install the attic stairway. Pursuant to its subcontract with ICI, Custom Cuttings agreed to indemnify ICI from any damages or claims brought against ICI as a result of Custom Cuttings’s negligence. In April 2007, Ferrin received serious injuries from a fall while using the attic stairs installed by Custom Cuttings. She brought suit solely against ICI. In turn, ICI sought indemnification from Custom Cuttings pursuant to the terms of their subcontract. At the time of Ferrin’s accident, ICI held a general liability insurance policy with General Fidelity (the “General Fidelity Policy”) and Custom Cuttings held a general liability insurance policy with North Pointe Insurance Company.

The terms of the General Fidelity Policy included a Self-Insured Retention endorsement (“the SIR endorsement”), requiring ICI to pay $1 million towards its own losses before General Fidelity had a duty to defend or indemnify ICI for any occurrence or event. The General Fidelity Policy also contained a transfer-of-rights provision giving General Fidelity subrogation rights over certain ICI claims.
 

 

Judge(s): Per Curiam
Jurisdiction: U.S. Court of Appeals, Eleventh Circuit
Related Categories: Contracts , Insurance
 
Circuit Court Judge(s)
Edward Carnes
Stephan Mickle
Gerald Tjoflat

 

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controlling precedent from the supreme court of florida, we certified two cuttings, general fidelity, and north pointe. as indemnity, custom cuttings and cuttings pursuant to the terms of their subcontract. at the time of ferrin’s indemnification payments received from a third party towards satisfaction of its $1 result of custom cuttings’s negligence. in april 2007, ferrin received serious endorsement (“the sir endorsement”), requiring ici to pay $1 million towards its through an indemnification clause can be used to offset the self-insured retention, the honorable stephan p. mickle, united states district judge for the northern district of the custom cuttings payment––which was being held in trust––to ferrin and to claims.2 after the full $1.6 million settlement payment was delivered to ferrin, ici 2 on july 7, 2009 a mediation was held involving ferrin, ici, custom injuries from a fall while using the attic stairs installed by custom cuttings. she install the attic stairway. pursuant to its subcontract with ici, custom cuttings to the coverage provided by the general fidelity policy. 5 judge. claim to the custom cuttings payment is superior to general fidelity’s and that it case: 10-12613 date filed: 03/28/2014 page: 1 of 6 during the construction of ferrin’s residence, ici hired custom cuttings, inc. to “1) does the general fidelity policy allow the insured to ferrin’s claim, ici and general fidelity tabled their dispute and agreed to release 4 case: 10-12613 date filed: 03/28/2014 page: 2 of 6 “general fidelity policy”) and custom cuttings held a general liability insurance intervest construction of jax, inc., gen. fid. ins. co., 662 f.3d 1328, 1333–35 (11th cir. 2011). the florida constitution allows the florida supreme court to consider a certified settlement agreement was reached wherein ici and general fidelity agreed to pay questions for resolution:3 homes, inc. (collectively “ici”), regarding whether general fidelity breached its cuttings, general fidelity, and north pointe. as a result of this mediation, a 2 does the transfer of rights provision found in the general fidelity policy grant fidelity, concluding that ici had not satisfied the sir obligation because the supreme court of florida.” fla. const. art. v, § 3(b)(6); see also stevens v. battelle mem’l inst., accident, ici held a general liability insurance policy with general fidelity (the is entitled to apply the custom cuttings payment towards the sir endorsement in general fidelity insurance company, and help us enforce them. a dispute arose between ici and general fidelity regarding to whom the superior rights to be made whole to the insured or to the insurer?” id. no. 10-12613 if the insured has rights to recover all or part of any payment we have made under this the coverage dispute at issue arose from a personal injury suit brought custom cuttings settlement payment should be payable and whether ici could use et. al. [publish] payment had originated from another party. intervest constr. of jax, inc., v. gen. its $1 million self-insured retention? [and] 2) assuming that funds received policy with north pointe insurance company. in light of the supreme court’s answers, the final judgment of the district per curiam: general fidelity in exchange for a release from any liability arising under the the general fidelity policy. general fidelity removed the case to the united states ________________________ on february 6, 2014 the supreme court of florida issued a decision before carnes, chief judge, tjoflat, circuit judge, and mickle,∗ concluded that (1) “the general fidelity policy allows the insured to apply ________________________ i. the controversy in this case is between an insurer, general fidelity coverage part, those rights are transferred to us. the insured must do nothing after loss ________________________ unanswered questions of florida law. intervest constr. of jax, inc., v. gen. fid. plaintiffs-appellants, in the united states court of appeals the custom cuttings payment to satisfy the sir endorsement. in order to resolve florida, sitting by designation. judge mickle did not participate in the decision; it is rendered by quorum. see 28 u.s.c. § 46(d) (2012). case: 10-12613 date filed: 03/28/2014 page: 3 of 6 million self-insured retention,” id. at *19, and (2) “the transfer of rights provision 3 district the general fidelity policy also contained a transfer-of- own losses before general fidelity had a duty to defend or indemnify ici for any reversed. court is ii. defendant-appellee. the full text of the sir endorsement can be found at intervest constr. of jax, inc. v. fid. ins. co., no. 3:09-cv-00894-hes-jrk, order at 8 (m.d. fla. apr. 22, 2010). 3 case: 10-12613 date filed: 03/28/2014 page: 4 of 6 case: 10-12613 date filed: 03/28/2014 page: 6 of 6 occurrence or event.1 brought suit solely against ici. in turn, ici sought indemnification from custom appeal from the united states district court each fund $300,000 towards the $1.6 million settlement agreement. both ici and 488 f.3d 896, 904 (11th cir. 2007). question if it “is determinative of the cause and for which there is no controlling precedent of the against ici by katherine ferrin, who purchased and lived in a home built by ici. answering both of these questions. intervest constr. of jax, inc., v. gen. fid. ins. ∗ d.c. docket no. 3:09-cv-00894-hes-jrk ferrin $1.6 million as full and final settlement of her claims against ici, custom general fidelity reserved all claims and defenses against one another with respect in the policy does not abrogate the made whole doctrine, thereby preserving ici’s ________________________ versus 6 apply indemnification payments received from a third-party towards satisfaction of north pointe agreed to pay $1 million (the “custom cuttings payment”) to ici and district court for the middle district of florida. to impair them. at our request, the insured will bring “suit” or transfer those rights to us ins. co., 662 f.3d 1328, 1332 (11th cir. 2011). in light of the absence of rights provision giving general fidelity subrogation rights over certain ici the terms of the general fidelity policy included a self-insured retention co., no. sc11-2320 (fla. 2014). in its decision, the supreme court of florida (march 28, 2014) the transfer-of-rights provision found in the general fidelity policy reads as follows: case: 10-12613 date filed: 03/28/2014 page: 5 of 6 1 right of priority,” id. at *25. on appeal, we determined that the resolution of this dispute depends on obligations under a general liability insurance policy held by ici. filed suit in the circuit court of the fourth judicial circuit of florida against for the middle district of florida insurance company, and its insureds, intervest construction of jax, inc. and ici ferrin lawsuit. after hearing arguments, the district court found in favor of general general fidelity for breach of contract, requesting a declaratory judgment that its agreed to indemnify ici from any damages or claims brought against ici as a for the eleventh circuit


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