RIP & TEAR
The Eleventh
Circuit’s Decision in
Carithers v. Mid-Continent Cas. Co., 782 F.3d
1240 (11th Cir. 2015)
By: Amanda
K. Anderson, Esquire
Boyle,
Gentile & Leonard, P.A.
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. See Boran 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’”.
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