ORDER

MARCIA MORALES HOWARD, District Judge.

THIS CAUSE is before the Court on Plaintiff KB Home Jacksonville LLC's Motion for Partial Summary Judgment Against Defendant Ironshore Specialty Insurance Company and Incorporated Memorandum of Law (Doc. 52; Motion), filed on December 14, 2018. Defendant Ironshore filed a response in opposition on January 22, 2019. See Defendant Ironshore Specialty Insurance Company's Response in Opposition of Plaintiff KB Home Jacksonville LLC's Motion for Partial Summary Judgment and Incorporated Memorandum of Law (Doc. 57; Response). With leave of Court, see Order (Doc. 59), KB Home replied on February 12, 2019. See Plaintiff KB Home Jacksonville LLC's Reply in Support of Motion for Partial Summary Judgment Against Defendant Ironshore Specialty Insurance Company (Doc. 60; Reply). Accordingly, the Motion is ripe for review.

I. Background1

In this action, KB Home seeks declarations that the defendant insurance companies have a duty to defend KB Home in Florida state-court actions (the Underlying Litigation) filed by individual homeowners against KB Home regarding its allegedly defective construction and development of 6 residential developments in St. Johns County and Clay County, Florida (the Project). See generally Amended Complaint (Doc. 14); Motion, Exhibit A: Declaration of Stephen S. Asay (Doc. 52-1; Asay Declaration) at 3-4. KB Home served as the general contractor for the Project and, in doing so, utilized various subcontractors. See Amended Complaint at 4. As relevant here, as part of the Project, in 2006, KB Home subcontracted with Florida State Plastering, LLC (FSP) to install stucco. See Asay Declaration, Exhibit 1: Subcontract (Doc. 52-2).

A. The Underlying Litigation

According to KB Home, 88 complaints in the Underlying Litigation implicate FSP's stucco work on the Project, 83 of which "contain materially identical counts/claims and allegations" (the Underlying Complaints) and are the subject of the instant Motion.2 See Asay Declaration at 2-3. Rather than submit all 83 Underlying Complaints to the Court, KB Home has submitted two representative complaints, see id., Exhibit 3: Complaint, Case No. CA17-0247 (Doc. 52-4; Gilbert Complaint); id., Exhibit 4: Complaint, Case No. CA17-0536 (Doc. 52-5; Rowland Complaint), and has produced all 83 Underlying Complaints to Ironshore, id. at 2-3. KB Home has also provided a summary chart that lists all 83 Underlying Complaints and identifies the specific page number on which allegations relevant to Ironshore's duty to defend appear. See id., Exhibit 6: Underlying Complaint Summary (Doc. 52-7; Summary Chart).

In the Underlying Complaints, the homeowner plaintiffs assert claims of vicarious liability against KB Home for the negligence of its stucco subcontractor. See Asay Declaration at 3-4; Summary Chart; Gilbert Complaint at 7-8; Rowland Complaint at 5-6. In particular, the plaintiffs allege that the stucco subcontractor's work failed to comply with the Florida building code and, as a result, the plaintiffs' homes suffer from construction defects. Id. They further allege that the stucco subcontractor's defective work caused "damages not only to the exterior stucco, but also the underlying wire lath, paper backing, house wrap, wood sheathing, interior walls, interior floors, and/or other property." Gilbert Complaint at 7-8; see also Rowland Complaint at 5-6. Although the plaintiffs do not name FSP as a defendant in the Underlying Complaints or specifically state that FSP performed the stucco work at issue, KB Home has identified FSP as the stucco subcontractor that performed that work. See Asay Declaration at 3.

Notably, in the Underlying Complaints the plaintiffs also do not allege when the property damage occurred or when it was discovered. Instead, the plaintiffs allege that "[s]ubsequent to construction of the Home, certain design and construction deficiencies were observed at the Home, which include, but are not limited to, an inadequately and improperly installed stucco system." Gilbert Complaint at 3; see also Rowland Complaint at 3. The plaintiffs further allege that "[t]he existence or causes of the defects are not readily recognizable by [p]laintiffs," and that "[t]he defects are hidden by components or finishes, are latent in nature, and are defects that require special knowledge or training to ascertain and determine the nature and causes of the defects." Gilbert Complaint at 3-4; see also Rowland Complaint at 3-4. Although the plaintiffs do not allege when FSP completed its work on the Project, KB Home has acknowledged that FSP completed its work in 2008. See Amended Complaint at 4.

B. Ironshore's Policy

Ironshore insured FSP under a commercial general liability (CGL) policy, which provided coverage from December 1, 2009, to December 1, 2010.3 See Asay Declaration, Exhibit 2: 2009-10 Ironshore Policy (Doc. 52-2; Policy).4 The Policy provides coverage for "those sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' to which this insurance applies." See Policy at 5. For the insurance to apply, the "property damage" must be "caused by an `occurrence' that takes place in the `coverage territory.'" Id. An "occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Id. at 17. In addition, the "property damage" must "occur[ ] during the policy period." Id. at 5. The Policy defines "property damage," in relevant part, as "[p]hysical 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." Id. at 17. The Policy provides that Ironshore "will have the right and duty to defend the insured against any `suit' seeking . . . damages for . . . "property damage." Id. at 5.

KB Home is an additional insured under the Policy, see Policy at 53, `but only with respect to liability for `bodily injury' or `property damage' caused, in whole or in part, by `your work' at the location designated and described in the schedule of this endorsement performed for that additional insured and including in the `products completed operations hazard.'"5 Id. at 54. The Policy defines "your work" to include "[w]ork or operations performed by you or on your behalf" where "[t]hroughout this policy the words `you' and `your' refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy." Policy at 5, 18.

Of particular significance to the instant dispute, the Policy includes a Continuous or Progressive Injury or Damage Exclusion (CP Exclusion) which provides as follows:

Id. at 31.

C. The Instant Action

On March 19, 2018, KB Home initiated the instant declaratory judgment action seeking, among other things, declarations that Liberty Mutual and Ironshore are obligated to defend KB Home in the Underlying Litigation.6 See Original Complaint (Doc. 1). Specifically, KB Home contends that because the plaintiffs in the Underlying Litigation allege that FSP's defective stucco installation resulted in property damage to other parts of the Project, both insurers have a duty to defend KB Home as an additional insured. See Amended Complaint at 2. On August 20, 2018, the parties informed the Court that Liberty Mutual "agree[d] that its defense obligation was triggered" by the allegations of the underlying complaints.7 See Joint Notice at 2. However, in its motion for partial summary judgment, Liberty Mutual argued that its duty to defend KB Home ended on June 2, 2017, when Liberty Mutual offered its policy limits to settle an unrelated class action against other insureds in South Carolina state court. See Defendant Liberty Mutual Fire Insurance Company's Motion for Partial Summary Judgment on the Duty to Defend (Doc. 44; Liberty Mutual's Motion). The Court denied Liberty Mutual's Motion in a separate order also dated September 5, 2019.

In the instant Motion, KB Home asks "that the Court enter an order finding, as a matter of law, that the allegations in the Underlying Complaints trigger Ironshore's duty to defend KB HOME in the Underlying [Litigation]." Motion at 16. In response, Ironshore argues that KB Home is not entitled to partial summary judgment because there are material facts in dispute and therefore the Motion is premature. See Response at 10-12. Additionally, Ironshore maintains that it has no duty to defend KB Home because Liberty Mutual has already agreed to do so, id. at 12-13, and because the Policy's CP Exclusion bars coverage, id. at 14-17.8

II. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure (Rule(s)), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a). The record to be considered on a motion for summary judgment may include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Rule 56(c)(1)(A).9 An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)). "[A] mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment." Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). "When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court "must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

III. Applicable Law

Under Nevada law,10 insurance contracts are interpreted "from the perspective of one not trained in law or in insurance, with the terms of the contract viewed in their plain, ordinary and popular sense." Century Sur. Co. v. Casino W., Inc., 329 P.3d 614, 616 (Nev. 2014) (internal quotation marks and citation omitted). When interpreting an insurance policy, courts should "consider the policy as a whole to give reasonable and harmonious meaning to the entire policy. . . ." Id. Moreover, because insurance policies are contracts of adhesion, they "should be interpreted broadly, affording the greatest possible coverage to the insured." Farmers Ins. Grp. v. Stonik, 867 P.2d 389, 391 (Nev. 1994). Nevertheless, a court cannot rewrite the policy's provisions if they "are otherwise unambiguous." Id.

Additionally, Nevada law instructs that an insurer's duty to defend is determined "by comparing the allegations of the complaint with the terms of the policy." See United Nat'l Ins. Co. v. Frontier Ins. Co., 99 P.3d 1153, 1158 (Nev. 2004). "[A]n insurer's duty to defend is triggered whenever the potential for [coverage] arises . . . ." Benchmark Ins. Co. v. Sparks, 254 P.3d 617, 621 (Nev. 2011); See also Maryland Cas. Co. v. Nationwide Ins. Co., 76 Cal.Rptr.2d 113, 120 (Cal. 4th Ct. App. 1998) ("An insurer must defend any action that asserts a claim potentially seeking damages within the coverage of the policy.").11 "A potential for coverage only exists when there is arguable or possible coverage." United Nat'l, 99 P.3d at 1158. Significantly, "[i]f there is any doubt about whether the duty to defend arises, this doubt must be resolved in favor of the insured." Id. The Nevada Supreme Court has explained that "[t]he purpose behind construing the duty to defend so broadly is to prevent an insurer from evading its obligation to provide a defense for an insured without at least investigating the facts behind a complaint." Id.

IV. Analysis

A. Factual Disputes

The Court begins its analysis by addressing Ironshore's conclusory argument that there are material facts in dispute that preclude KB Home from obtaining partial summary judgment regarding Ironshore's duty to defend. See Response at 11-12. In support of this argument, Ironshore recites the summary judgment standard but points to no material facts that are actually in dispute and offers no analysis as to why summary judgment is inappropriate. See id. As an initial matter, Ironshore states:

Id. at 11 (internal citations omitted). The Court finds this argument to be unavailing. Because the duty to defend is determined "by comparing the allegations of the complaint with the terms of the policy," United Nat'l, 99 P.3d at 1158, the existence of a duty to defend is a legal question, which is amenable to resolution on a motion for partial summary judgment. See generally Powell v. Liberty Mut. Fire Ins. Co., 252 P.3d 668, 672 (Nev. 2011) ("The interpretation of an insurance policy presents a legal question."). Indeed, discovery of extrinsic evidence would appear to be irrelevant for the purpose of determining Ironshore's duty to defend in the Underlying Litigation. Assuming arguendo that it would be appropriate to consider extrinsic evidence regarding Ironshore's duty to defend, Ironshore has not pointed to any such evidence for the Court to consider. Although Ironshore suggests that discovery is needed, it has not explained what evidence it needs to support its position that it does not have a duty to defend KB Home in the Underlying Litigation.12

The Court notes that in the "Factual and Procedural Background" portion of its Response, Ironshore states that "not every [Underlying] Complaint claims that [KB Home] is vicariously liable for any action attributable to [FSP] and [FSP] is not named in any of the [U]nderlying Complaints." Response at 9. However, Ironshore has presented no basis for the Court to disregard the evidence submitted by KB Home that the 83 Underlying Complaints at issue all contain allegations of vicarious liability and implicate FSP's allegedly defective work. See Asay Declaration. The Court is satisfied that with the Asay Declaration KB Home has met its burden of demonstrating through record evidence that there are no genuine issues of material fact regarding the allegations of the Underlying Complaints. Although KB Home has produced the Underlying Complaints to Ironshore, Ironshore has not come forward with an example of any Underlying Complaint that does not allege vicarious liability or that fails to implicate FSP's work. Moreover, despite having access to all of the Underlying Complaints, Ironshore fails to point to any record evidence casting doubt on Asay's sworn declaration that the Underlying Complaints "contain materially identical counts/claims and allegations." Asay Declaration at 3.

Ironshore simply presents no authority or analysis to support its conclusory argument that the coverage determinations in this case "hinge on factual issues," which require more "meaningful discovery." See Response at 11. To the contrary, the Court concludes that the record establishes that the Underlying Complaints sufficiently allege "property damage," caused by the "occurrence" of FSP's allegedly faulty workmanship. In addition, the Court finds that the Underlying Complaints include allegations of damage to property other than FSP's own work. Specifically, the Underlying Complaints allege that FSP's faulty stucco installation caused damage to other property—paper backing, house wrap, wood sheathing, interior walls, interior floors. Finally, the Court concludes that the Underlying Complaints can be fairly read to allege potentially covered property damage that occurred within the Policy period. Pursuant to the additional insured endorsement, KB Home is also potentially covered for the claims against it relating to the damage allegedly caused by FSP's faulty workmanship, unless the Court determines that Liberty Mutual's defense obligations relieve Ironshore of its obligations, or that the CP Exclusion applies to preclude coverage.

B. Liberty Mutual

Next the Court turns to Ironshore's contention that it does not have a duty to defend KB Home because "Liberty Mutual has already agreed to defend KB Home and there is no right to contribution in Florida." Response at 12. Ironshore maintains that based on caselaw regarding the right to contribution between insurers "and Liberty Mutual's explicit acceptance of the full duty to defend KB Home, it would be inappropriate and not possible for Ironshore to take on the duty to defend Ironshore in this matter . . . ." Id. at 13. Upon review, the Court finds Ironshore's reliance on Florida law regarding the right to contribution between insurance companies to be unavailing. First, although not applicable to this action, the Court notes that the Florida Legislature recently created a right of contribution among liability insurers for defense costs. See Fla. Stat. § 624.1055 (2019).13 More importantly, even though Florida law has not always allowed contribution "between insurers for expenses incurred in defense of a mutual insured," Argonaut Ins. Co. v. Maryland Cas. Co., 372 So.2d 960, 963 (Fla. 3d Dist. Ct. App. 1979), that does not mean that Florida law permitted an insurer to shirk its contractual defense obligations simply because another insurer had already recognized its duty to defend. Indeed, in the very case on which Ironshore relies, after acknowledging that the Florida "Legislature ha[d] not seen fit to allow contribution for costs or attorney's fees between insurance companies," the Third District Court of Appeal (DCA) in Argonaut went on to emphasize the personal nature of an insurer's duty to defend:

Argonaut, 372 So. 2d at 963 (quoting Financial Indemnity Co. v. Colonial Ins. Co., 132 Cal.App.2d 207 (Cal. 1st Ct. App. 1955)).

Thus, the presence of multiple insurers has never excused any single insurer from fully defending the insured. See id. See also U.S. Fire Ins. Co. v. Transp. Cas. Ins. Co., 747 So.2d 404, 405 (Fla. 4th Dist. Ct. App. 1999) ("We hold that the trial court correctly determined in a partial summary judgment that both carriers should provide pro-rata primary insurance coverage, and that they had a duty to defend the three defendants on a pro-rata basis."); Cont'l Cas. Co. v. United Pac. Ins. Co., 637 So.2d 270, 273 (Fla. 5th Dist. Ct. App. 1994) ("As a practical matter, [carrying out the contractual duty to defend in multiple coverage cases] happens in a variety of ways, depending on the circumstances. Sometimes carriers will agree to select an attorney who is on the `approved' list for each carrier and will split defense costs. Sometimes both carriers will hire counsel and provide legal representation, but with the understanding that the attorney hired by the carrier with the highest exposure will be lead counsel, assisted by the other. Sometimes, the defense functions are simply divided to save expenses and duplication of effort."). Accordingly, the Court concludes that Liberty Mutual's recognition of its defense obligations does not relieve Ironshore of its own.14

C. CP Exclusion

Finally, the Court considers whether the CP Exclusion bars any potential for coverage and therefore negates Ironshore's duty to defend. As stated above, this provision bars coverage for "continuous or progressive injury or damage" that "first existed, or is alleged to have first existed, prior to the inception of" the Policy. See Policy at 31. The CP Exclusion further provides that damage resulting from the insured's work "performed prior to policy inception will be deemed to have first existed prior to the policy inception, unless such `property damage' is sudden and accidental and takes place within the policy period." Id. (emphasis added). In its Response, Ironshore asserts that because it is undisputed that FSP completed its work in 2008, and that the Policy was not effective until December 1, 2009, the alleged property damage caused by FSP's defective work is deemed to have first existed before the inception of the Policy and, as such, there is no potential for coverage. See Response at 14-17. KB Home does not dispute that FSP completed its work in 2008 before the Policy's inception date. See Reply; Amended Complaint at 4. Instead, KB Home maintains that, regardless of when the property damage resulting from FSP's work first existed, the sudden and accidental exception to the CP Exclusion applies, because the Underlying Complaints do "not specifically identify when or how the deficiencies and damages occurred." See Reply at 11-14. As such, KB Home contends that the Underlying Complaints potentially seek covered damages, which triggers Ironshore's duty to defend. Id.

To support their respective positions, the parties cite to two opinions of the Nevada District Court, which both addressed the CP Exclusion in similar circumstances but reached different results. See Response at 14-17 (citing Assurance Co. of Am. v. Ironshore Specialty Ins. Co., Case No. 2:15-cv-460-JAD-PAL, 2017 WL 3666298, at *1 (D. Nev. Aug. 24, 2017) (Assurance II)); Reply at 12-14 (citing Assurance Co. of Am. v. Ironshore Specialty Ins. Co., Case No. 2:13-cv-2191-GMN-CWH, 2014 WL 4829709 (D. Nev. Sept. 30, 2014) (Assurance I)). In both Assurance cases Ironshore argued that the policy's CP Exclusion precluded any potential for coverage in underlying construction defect lawsuits because the insured completed its work before the policies' inception date, and the underlying complaints did not specifically allege any sudden or accidental damages such that the exception to the CP Exclusion would apply.

In ruling in Ironshore's favor, the district court in Assurance II stated:

Assurance II, 2017 WL 3666298, at *3.

In contrast, the district court in Assurance I determined that, based upon the allegations of the underlying complaint, the CP Exclusion did not preclude "all possible or arguable coverage because the `sudden or accidental' exception could have been implicated." Assurance I, 2014 WL 4829709, at *3-4. In so holding, the district court stated:

Id. at 4.

Upon consideration, the Court concludes that the reasoning of Assurance I is more persuasive given the Nevada authority cited above regarding the duty to defend. Indeed, Nevada law is clear that "an insurer's duty to defend is triggered whenever the potential for [coverage] arises," Benchmark, 254 P.3d at 621, and a potential for coverage "exists when there is arguable or possible coverage," United Nat'l, 99 P.3d at 1158. Here, the plaintiffs allege in the Underlying Complaints that "[s]ubsequent to construction of the Home, certain design and construction deficiencies were observed at the Home, which include, but are not limited to, an inadequately and improperly installed stucco system." Gilbert Complaint at 3; see also Rowland Complaint at 3. The plaintiffs further allege that "[t]he existence or causes of the defects are not readily recognizable by Plaintiffs," and that "[t]he defects are hidden by components or finishes, are latent in nature, and are defects that require special knowledge or training to ascertain and determine the nature and causes of the defects." Gilbert Complaint at 3-4; see also Rowland Complaint at 3-4. However, the Underlying Complaints are silent as to when FSP's allegedly faulty workmanship began to physically damage other parts of the Project or when that alleged property damage was discovered. Nor are there any allegations regarding the nature of the property damage caused by FSP's allegedly faulty workmanship from which this Court could infer that the property damage was more likely gradual and nonaccidental, as opposed to sudden and accidental.15 As such, the Court finds that the CP Exclusion does "not preclude all arguable or possible coverage under the Ironshore Policy." See Assurance I, 2014 WL 4829709, at *4; Leonard Roofing, Inc. v. Ironshore Specialty Ins. Co., Case No. 12-cv-156-VAP-DTB, 2013 WL 12129653, at *10 (C.D. Cal. Mar. 29, 2013) ("[I]t is entirely possible that the plaintiffs are seeking sudden and accidental damage caused by water damage that first occurred during the policy period. As Ironshore has failed to prove that there was no possibility of coverage at the time of tender, Ironshore is not entitled to summary adjudication regarding the duty to defend Leonard in the [underlying action]."). See also Wynn's Intern., Inc. v. Cont'l Ins. Co., Case No. 94-cv-3766-CAL-ENE, 1995 WL 498846, at *4 (N.D. Cal. Aug. 14, 1995) (analyzing a chemical exclusion with a similar sudden and accidental exception and concluding that "[w]here the charging complaint is silent on the question of whether a release is sudden or gradual, that is enough to trigger the duty to defend"); Nat'l Fire & Marine Ins. Co. v. Redland Ins. Co., 3:13-cv-00144-LRH, 2014 WL 3845153, at *5 (D. Nev. Aug. 5, 2014) ("Because the date on which the property damage occurred is not ascertainable from the Underlying Complaint, the Court cannot conclude that there was no potential for arguable or possible coverage under the policies . . . .").16 Thus, the Underlying Complaints potentially seek damages within the coverage of the policy.

Because the Court is required to resolve any doubts as to a duty to defend in favor of the insured, and because an insurer must defend if the allegations against the insured allege facts potentially and even only partially within coverage, see United Nat'l, 99 P.3d at 1158, the Court determines that Ironshore has a duty to defend KB Home in the Underlying Litigation with respect to the 83 Underlying Complaints at issue in the Motion.

Accordingly, it is

ORDERED:

Plaintiff KB Home Jacksonville LLC's Motion for Partial Summary Judgment Against Defendant Ironshore Specialty Insurance Company and Incorporated Memorandum of Law (Doc. 52) is GRANTED to the extent the Court declares that Ironshore has a duty to defend KB Home in the Underlying Litigation with respect to the 83 Underlying Complaints at issue in the Motion.

DONE AND ORDERED.