Filed: Nov. 19, 2012
Latest Update: Feb. 12, 2020
Summary: Case: 10-14637 Date Filed: 11/19/2012 Page: 1 of 16 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 10-14637 _ D.C. Docket No. 1:09-cv-02364-JEC HDI-GERLING AMERICA INSURANCE COMPANY, successor in interest to Gerling America Insurance Company, Plaintiff - Counter - Defendant - Appellee, versus MORRISON HOMES, INC., Defendant - Counter - Claimant, TAYLOR MORRISON SERVICES, INC., f.k.a Morrison Homes, Inc., Defendant - Counter - Claimant - Appellant. _ Appeal from th
Summary: Case: 10-14637 Date Filed: 11/19/2012 Page: 1 of 16 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 10-14637 _ D.C. Docket No. 1:09-cv-02364-JEC HDI-GERLING AMERICA INSURANCE COMPANY, successor in interest to Gerling America Insurance Company, Plaintiff - Counter - Defendant - Appellee, versus MORRISON HOMES, INC., Defendant - Counter - Claimant, TAYLOR MORRISON SERVICES, INC., f.k.a Morrison Homes, Inc., Defendant - Counter - Claimant - Appellant. _ Appeal from the..
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Case: 10-14637 Date Filed: 11/19/2012 Page: 1 of 16
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-14637
________________________
D.C. Docket No. 1:09-cv-02364-JEC
HDI-GERLING AMERICA INSURANCE COMPANY,
successor in interest to Gerling America Insurance Company,
Plaintiff - Counter - Defendant -
Appellee,
versus
MORRISON HOMES, INC.,
Defendant - Counter - Claimant,
TAYLOR MORRISON SERVICES, INC.,
f.k.a Morrison Homes, Inc.,
Defendant - Counter -
Claimant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 19, 2012)
Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.
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PER CURIAM:
CERITIFICATION FROM THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA
PURSUANT TO O.C.G.A. § 15-2-9.
TO THE SUPREME COURT OF GEORGIA AND ITS HONORABLE
JUSTICES:
This diversity action asks whether the property damage alleged in a
California class action lawsuit brought by purchasers of homes built by Taylor
Morrison Services, Incorporated (“Morrison”) was caused by an “occurrence” and
therefore covered under the terms of Morrison’s CGL policy (the “Policy”) with
HDI-Gerling America Insurance Company (“Gerling”).1
Central to the case are questions of Georgia law, among them whether
property damage can constitute an “occurrence” under a CGL policy where its
effects are not felt on “other property.” As this question is determinative of the
case, and the single Supreme Court of Georgia case touching upon the matter fails
squarely to answer it, we respectfully certify these questions for resolution.
1
The insurance contract was issued by Gerling’s predecessor in interest, Gerling
American Insurance Company, to Morrison’s predecessor in interest, Morrison Homes,
Incorporated. We refer to Gerling and Morrison and their predecessors as Gerling and Morrison,
respectively.
2
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I.
A.
Gerling issued the Policy to Morrison on November 1, 1996, for the period
November 1, 1996, to November 1, 1997. The Policy required Gerling to “pay
those sums that the insured becomes legally obligated to pay as damages because
of ‘bodily injury’ or ‘property damage’ . . . caused by an ‘occurrence.’” It defined
“occurrence” as “an accident, including continuous or repeated exposure to
substantially the same general harmful conditions.”2 The Policy gave Gerling the
duty to defend any such suit but contained “expected or intended injury,”
“contractual liability,” and business risk exclusions. 3
2
The relevant text of the insuring provision reads:
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to
pay as damages because of “bodily injury” or “property damage” to which
this insurance applies. We will have the right and duty to defend a “suit”
seeking those damages. We may at our discretion investigate any
“occurrence” and settle any claim or “suit” that may result.
b. This insurance applies to “bodily injury” and “property damage” only
if:
(1) The “bodily injury” or “property damage” is caused by an
“occurrence” that takes place in the “coverage territory”; and
(2) The “bodily injury” or “property damage” occurs during the
policy period.
3
The relevant portions of those exclusions read as follows:
2. Exclusions.
This insurance does not apply to:
a. Expected or Intended Injury
3
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On July 13, 2005, a group of homeowners (the “Rosa plaintiffs”), whose
homes were built by Morrison and purchased during the Policy period, brought a
class action against Morrison in the Superior Court of Stanislaus County,
California.4 In an amended complaint filed on April 26, 2006, they abandoned
their claims of negligence, strict liability, and nuisance and added claims of
concealment, negligent misrepresentation, intentional misrepresentation, breach of
express warranty, breach of implied warranty, and violations of California
“Bodily injury” or “property damage” expected or intended from the
standpoint of the insured. This exclusion does not apply to “bodily injury”
resulting from the use of reasonable force to protect persons or property.
b. Contractual Liability
“Bodily injury” or “property damage” for which the insured is obligated to
pay damages by reason of the assumption of liability in a contract or
agreement. This exclusion does not apply to liability for damages:
(1) Assumed in a contract or agreement that is an “insured contract,”
provided the “bodily injury” or “property damage” occurs subsequent to
the execution of the contract or agreement; or
(2) That the insured would have in the absence of the contract or
agreement.
j. Damage to Property
“Property damage” to:
(6) That particular part of any property that must be restored, repaired or
replaced because “your work” was incorrectly performed on it.
Paragraph (6) of this exclusion does not apply to “property damage”
included in the “products-completed operations hazard.”
l. Damage to Your Work
“Property damage” to “your work” arising out of it or any part of it and
included in the “products-completed operations hazard.”
This exclusion does not apply if the damaged work or the work out of
which the damage arises was performed on your behalf by a subcontractor.
4
The class described in the Rosa plaintiffs’ complaint included those who purchased
homes from Morrison in the primary market and those who purchased homes in the secondary
market.
4
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Business and Professions Code §§ 17500 (false or misleading statements) and
17200 (unfair competition). At the center of the amended complaint was the
allegation that, in constructing houses in Stanislaus County, Morrison had omitted
the four inches of gravel required beneath the base of the concrete foundations by
the Uniform Building Code and Stanislaus Country regulations and that, because
of Morrison’s failure to include the gravel layer, the houses sustained “water
intrusion, cracks in the floors and driveways, and warped and buckling flooring.”
Record, vol. 1, no. 1, Ex. A, at 5. Plaintiffs alleged that they have “have suffered,
and will continue to suffer, tangible physical property damage as a result of the
excessive water-wicking, cracking of the slab[,] and breaking of the floors.” Id. at
6. The amended complaint further alleged that Morrison was aware of the
pertinent building codes and deliberately withheld such information from
prospective buyers so as to “induce [them] to purchase and move into the
Subdivision properties.”
Id. at 10.
On April 30, 2009, in response to the Rosa plaintiffs’ motion for class
certification on the claims asserted in the amended complaint, the superior court
certified two classes. The first class consisted of “original homebuyers” with
claims of breach of implied warranty, breach of express warranty, concealment,
and violations of California Business and Professions Code §§ 17200 and 17500.
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The second class consisted of “subsequent homebuyers” with claims of breach of
express warranty, concealment, and violation of California Business and
Professions Code §§ 17200 and 17500. Responding to Morrison’s argument that
none of the claims shared sufficient commonality to warrant class treatment for
either group of homebuyers, the court in its certification order noted “that
Plaintiffs’ class certification motion frames three common alleged defects”: the
omission of the gravel layer; the use of the wrong vapor retarder; and the use of the
wrong cement-to-water ratio for the slab. Record, vol. 2, no. 17, Ex. B, at 2, 8.
“[A]t trial,” the court continued, “the Court may exclude evidence or otherwise
limit testimony that goes beyond the scope of the core class allegations upon which
this Order is based.” Id.
B.
On August 28, 2009, after defending Morrison in the California case for
some time, Gerling brought the instant action for declaratory judgment. Gerling
alleged that it was entitled to a “declaration that it has no obligation under the
Gerling Policy to defend or indemnify Morrison for any claims arising in or
relating to the [class-action l]itigation.” Record, vol. 1, no. 1, at 15. The
complaint focused on the so-called “Business Risk Exclusions” as well as the
Expected or Intended Injury Exclusion, the Contractual Liability Exclusion, and
6
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the definition of “occurrence,” alleging that the court should “declare there is no
coverage under the Gerling Policy for the claims in the [California litigation].”
On September 17, 2010, the District Court granted summary judgment to
Gerling, holding that the class-action claims were not based on an “occurrence” as
defined in the Policy because they were “exactly the type of claims that are
excluded from the definition of the term ‘occurrence’” and because they involved
only damage to the “insured’s own work.” Record, vol. 4, no. 67, at 13–14. The
court further found that, even if there were an “occurrence,” the claims were barred
by various exclusions in the Policy. That same day, the district court entered a
declaratory judgment in conformance with its order. This appeal followed.
II.
Morrison argues that the District Court erred in concluding that, under
Georgia law, Gerling had no duty to defend it in the California class action; rather,
Morrison argues, it should have held that the Rosa Plaintiffs’ claims are based on
an “occurrence” under the Policy and that no exclusion applies.
A.
"[W]hether an insurer has a duty to defend depends on the language of the
policy as compared with the allegations of the complaint." Hoover v. Maxum
Indem. Co., 730 S.E.2d 413, 418 (Ga. 2012). For an insurer to be excused under
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Georgia law from its duty to defend an action against its insured, the allegations of
the complaint must unambiguously exclude coverage under the policy. JNJ Found.
Specialists, Inc. v. D.R. Horton, Inc., 717 S.E.2d 219, 223 (Ga. Ct. App. 2011).
The “allegations of the complaint are looked to to determine whether a liability
covered by the policy is asserted. Thus, the issue is not whether the insured is
actually liable to the plaintiffs in the underlying action; the issue is whether a claim
has been asserted which falls within the policy coverage and which the insurer has
a duty to defend.” Bituminous Cas. Corp. v. N. Ins. Co. of New York,
548 S.E.2d
495, 497 (Ga. Ct. App. 2001) (citations and punctuation omitted; emphasis in
original). If the complaint does not assert a claim that is covered, the insurer is
justified in refusing to provide the insured a defense. Forster v. State Farm Fire &
Cas. Co.,
704 S.E.2d 204, 205–06 (Ga. Ct. App. 2010). Any doubt as to the
insurer’s duty to defend, though, should be resolved in favor of the insured. D.R.
Horton, 717 S.E.2d at 223. Finally, where an insurer has a duty to defend a single
claim the complaint presents, it has a duty to defend all the claims asserted.
Fundamentally, as the Supreme Court of Georgia recently held, an
“occurrence” in a CGL policy is “an unexpected happening rather than one
occurring through intention or design.” Am. Empire Surplus Lines Ins. Co. v.
Hathaway Dev. Co. (Hathaway II), 707 S.E.2d 369, 371 (Ga. 2011). However, it
8
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may also—and Gerling argues it does—act as a shorthand that gestures to a
collection of coverage requirements.
As Gerling argues in its brief, see Appellee’s Br. 24-29; 35-38, the Georgia
Court of Appeals has frequently bundled two other interrelated requirements into
the definition of “occurrence.” The first of these pertains to the causes of action in
the underlying complaint. Some Georgia cases have treated this requirement as
disaggregated from the definition of “occurrence.” See McDonald Constr. Co. v.
Bituminous Cas. Corp., 632 S.E.2d 420, 422–24 (Ga. Ct. App. 2006) (finding no
coverage where an insured’s costs arose from “a pre-existing contractual
obligation”); Glens
Falls, 417 S.E.2d at 200 (finding the requirement articulated in
“business risk” exclusions). Others, Gerling points out, have represented it as an
integral part of that definition: “Occurrence does not mean a breach of contract,
fraud, or breach of warranty from the failure to disclose material information.”
Custom Planning & Dev., Inc. v. Am. Nat’l Fire Ins. Co.,
606 S.E.2d 39, 41 (Ga.
Ct. App. 2004). See
Forster, 704 S.E.2d at 206 (tying the preclusion of claims for
breach of contract to the definition of “accident” and “occurrence”). As the Court
of Appeals wrote in a decision later affirmed by the Georgia Supreme Court:
“[W]hile construction defects constituting a breach of contract are not covered by
CGL policies, negligently performed faulty workmanship that damages other
9
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property may constitute an ‘occurrence’ under a CGL policy.” Hathaway Dev. Co.
v. Am. Empire Surplus Lines Ins. Co. (Hathaway I), 686 S.E.2d 855, 860 (Ga. Ct.
App. 2009) (internal citations omitted).
Closely related to this is the Court of Appeals’s suggestion, emphasized by
Gerling, that the underlying claim involve damage to “other property.” The
intermediate court has said that “there has been no occurrence within the policy
where the faulty workmanship causes damage only to the work itself.” Custom
Planning, 606 S.E.2d at 41. The Court of Appeals in McDonald reasoned that this
was because
CGL coverage is intended to cover the potentially limitless liability
associated with the risk that the work of the insured, once relinquished or
completed, will cause bodily injury or damage to property other then to the
completed work itself, and for which the insured must be found liable. For
there to be coverage under a CGL policy for faulty workmanship, there
would have to be damage to property other than the work itself and the
insured’s liability for such damage would have to arise from negligence, not
breach of contract.
McDonald, 632 S.E.2d at 423 (omitting quotations).
B.
The district court found that the Rosa plaintiffs’ claims of concealment,
breach of express and implied warranty, and false advertising and fraudulent
business practices “are exactly the type of claims that are excluded from the
10
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definition of the term ‘occurrence’ under the Georgia court’s reasoning.” Record,
vol. 4, no. 67, at 14 (citing Custom Planning, 270 Ga. App. at 10).
In finding that Morrison’s insurance claim did not satisfy the “other
property” requirement, the District Court read “other property” to mean property
other than the insured’s completed work. Citing Hathaway I, the court explained
that “the Georgia courts have held that there is no ‘occurrence’ under a standard
CGL where there is a claim for faulty workmanship, but the only damage is to the
insured’s work itself.” Id. With this reading in mind, it noted that the Rosa
plaintiffs, “specifically, contend that the foundations in their houses cracked,
allowing water to penetrate the sub-flooring and causing leaks, staining, wet
carpeting, discoloration and buckling floors, among other problems.”
Id. at 15.
The court noted as well that the “plaintiffs do not allege that any other property
was damaged besides the houses that defendant constructed.”
Id. Indeed, the
damage detailed in the Rosa plaintiffs’ amended complaint—the only document
aside from the Policy to which we may look to determine coverage—comprises
“progressive failure” of homes, “including bucking of floors, discoloration, and
further water penetration”; slabs that have “cracks that have not yet broken through
to the flooring and thus are apparent only when the flooring is removed”; and
“tangible physical property damage as a result of the excessive water-wicking,
11
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cracking of the slab and breaking of the floors.” Record, vol. 1, no. 1, Ex. A, at 5–
6. Nowhere in the amended complaint is there an allegation of any specific
damage that would constitute damage to “other property.”
In fact, in granting class certification, the Superior Court of Stanislaus
County recognized that class certification would be inappropriate as to the Rosa
plaintiffs’ claims for damages due to “numerous additional defects” in their houses
and thus limited the evidence they could introduce at trial to that pertaining to
damage to Morrison’s own work: “The Court notes that Plaintiffs’ class
certification motion frames three common alleged defects,” the omission of a
gravel layer, the use of the wrong vapor retarder, and the use of the wrong water-
to-cement ratio. “[A]t trial, the Court may exclude evidence or otherwise limit
testimony that goes beyond the scope of the core class allegations upon which this
Order is based.” Record, vol. 2, no. 17, Ex. B, at 8.
III.
Neither of the requirements used by the District Court in reaching its holding
has been “authoritatively declared” as law by the Georgia Supreme Court. Guar.
Trust Co. v. York, 326 U.S. 99, 112,
65 S. Ct. 1464, 1471,
89 L. Ed. 2079 (1945).
That court has made no reference to the first of the intermediate court’s
suggestions regarding claims of breach of contract and fraud. And, while that
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court referenced “other property” in its recent holding in Hathaway II, it is not
fully clear whether it intends injury to “other property” to be a prerequisite to the
existence of an “occurrence” or, rather, simply one of a number of events that can
constitute an “occurrence: “[W]e answer the question posed at the outset of this
opinion . . . and hold that an occurrence can arise where faulty workmanship
caused unforeseen or unexpected damage to other property.” Hathaway II, 707
S.E.2d at 372 (emphasis added) (citing, for “other property” language,
SawHorse,
604 S.E.2d at 544, which refers to such damage as “damage to property other than
to the completed work itself”).
The parties here make sharply differing arguments as to the meaning of the
“other property” language. Whereas Gerling characterizes it as “damage to
property other than to the completed work itself,” Appellee’s Br. 27 (quoting
McDonald, 604 S.E.2d at 544), Morrison argues that “[t]he Hathaway II court’s
reference to ‘other’ property clearly means property other than the faulty
workmanship itself,” Appellant’s Reply 8-9.
More fundamentally, both appellant and appellant’s amicus argue that
Gerling’s interpretation improperly conflates the definition of an “occurrence” and
the “other property” exception to the business risk exclusion. That is, they argue
that Gerling’s interpretation improperly folds into the definition of “occurrence”
13
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the “other property” exception to the business risk exclusion. They contend,
instead, that the proper analysis is in two steps. The first step involves determining
whether there has been an “occurrence.” They note that the Georgia Supreme
Court in Hathaway II has defined an “occurrence” as follows: “A deliberate act,
performed negligently, is an accident [and thus an occurrence] if the effect is not
the intended or expected result; that is, the result would have been different had the
deliberate act been performed correctly.” 707 S.E.2d at 372. They argue that,
under that definition, there was an “occurrence” here. Only subsequent to this first
determination does a court, they continue, consider whether an exclusion applies.
In Hathaway II, and in many of the Georgia Court of Appeals cases cited by
Gerling, the business risk exclusion did not apply because the damage was to
“other property” and the “other property” exception to the business risk exclusion
applied. In the instant case, however, Morrison contends that the business risk
exclusion does not apply because of a different exception, the subcontractor
exception.
Appellant’s amicus further argues that other States are increasingly
abandoning the “other property” requirement in insurance law because that
requirement, when included as part of the definition of “occurrence,” renders the
“your work” exclusion superfluous and the “subcontractor exception” meaningless,
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and that the Supreme Court of Georgia is poised to abandon it as well. Amicus Br.
19; see 11 Richard A. Lord, Williston on Contracts § 32.5 (4th ed. 2012) (An
“interpretation which gives effect to all provisions of the contract is preferred to
one which renders part of the writing superfluous, useless or inexplicable.”).
There being no “clear controlling precedents in the decisions of the Supreme
Court [of Georgia],” O.C.G.A. § 15-2-9, we look to it now for resolution of the
question.
IV.
Definitive resolution of this dispute by the Supreme Court of Georgia will
add clarity and stability to a critical area of law. We hereby respectfully certify the
following questions for resolution:
1. WHETHER, FOR AN “OCCURRENCE” TO EXIST UNDER A
STANDARD CGL POLICY, GEORGIA LAW REQUIRES THERE TO
BE DAMAGE TO “OTHER PROPERTY,” THAT IS, PROPERTY
OTHER THAN THE INSURED’S COMPLETED WORK ITSELF.
2. IF THE ANSWER TO QUESTION ONE (1) IS IN THE NEGATIVE,
WHETHER, FOR AN “OCCURRENCE” TO EXIST UNDER A
STANDARD CGL POLICY, GEORGIA LAW REQUIRES THAT THE
CLAIMS BEING DEFENDED NOT BE FOR BREACH OF
CONTRACT, FRAUD, OR BREACH OF WARRANTY FROM THE
FAILURE TO DISCLOSE MATERIAL INFORMATION.
We do not intend the phrasing of these questions to restrict the scope of the
court’s inquiry. As we have noted previously:
15
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[T]he particular phrasing used in the certified question is not to restrict the
Supreme Court’s consideration of the problems involved and the issues as
the Supreme Court perceives them to be in its analysis of the record certified
in this case. This latitude extends to the Supreme Court’s restatement of the
issue or issues and the manner in which the answers are given, whether as a
comprehensive whole or in subordinate or even contingent parts.
Swire Pac. Holdings v. Zurich Ins. Co., 284 F.3d 1228. 1234 (11th Cir. 2002)
(alteration in original) (quoting Martinez v. Rodriquez,
394 F.2d 156, 159 n.6 (5th
Cir. 1968)).
In order to assist the court’s consideration of the case, the entire record,
along with the briefs of the parties, shall be transmitted to the court.
QUESTION CERTIFIED.
16
