             Case: 16-10030    Date Filed: 09/28/2016   Page: 1 of 8


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-10030
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 6:14-cv-01790-GAP-KRS


CORE CONSTRUCTION SERVICES SOUTHEAST, INC.,
a Florida Corporation,
d.b.a. Core Construction,
f.k.a. Southern Gulf West Construction, Inc.,

                                                               Plaintiff-Appellant,
                                    versus

CRUM & FORSTER SPECIALTY INSURANCE COMPANY,

                                                             Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                              (September 28, 2016)

Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Core Construction Services Southeast, Inc., appeals the summary judgment

in favor of Crum & Forster Specialty Insurance Company. Core Construction, a
               Case: 16-10030     Date Filed: 09/28/2016    Page: 2 of 8


general contractor for a condominium development, sued Crum & Forster for

allegedly breaching its duties to defend and indemnify Core Construction as an

additional insured on a commercial general liability insurance policy issued to its

subcontractor, Patnode Roofing, Inc. The district court ruled that Crum & Forster

owed no duty to defend or indemnify because the action against Core Construction

to recover the costs of repairing and replacing roofing installed incorrectly by

Patnode did not constitute “property damage” under the insurance policy. We

affirm.

                                 I. BACKGROUND

      After Core Construction relinquished control of the condominium

development to a homeowners association, Hurricane Wilma damaged several

roofs in the development. The association and its insurer, Empire Indemnity

Insurance Company, discovered that the roofing had been installed incorrectly by

Patnode. Empire paid for the damages and, in exchange, the association assigned

its claims against Core Construction and its subcontractors, including Patnode, to

Empire. The assignment provided that it pertained to “the damages and defects

sustained by the roofs of . . . 24 buildings” and that it was “restricted to the

damages to the roofs . . . arising from [their] faulty construction and development.”

      Empire sued Core Construction, Patnode, and other subcontractors in a

Florida court for negligence, breach of express and implied warranties, and


                                            2
               Case: 16-10030     Date Filed: 09/28/2016    Page: 3 of 8


violations of building codes. Core Construction was a named insured on a general

commercial liability insurance policy that Crum & Forster had issued to Patnode.

Core Construction requested a defense from Crum & Forster, which it refused to

provide. Crum & Forster determined that a claim for reimbursement for defective

work by Patnode did not constitute “property damage,” which its policy defined as

“[p]hysical injury to tangible property, including all resulting loss of use of that

property.” Empire later settled with Core Construction.

      In the meantime, Core Construction filed a complaint in the district court

that Crum & Forster had breached duties owed Patnode to defend and indemnify

Core Construction as an additional insured. Crum & Forster and Core Construction

filed cross motions for summary judgment. Crum & Forster argued that Core

Construction was not an additional insured. Alternatively, Crum & Forster argued

that the claim asserted against Core Construction in the underlying state action did

not involve “property damage.”

      The district court granted the motion of Crum & Forster for summary

judgment and denied the motion filed by Core Construction. The district court

ruled that, “even assuming arguendo that Core Construction was an additional

insured under the CGL polic[y],” Crum & Forster was not obligated to defend or

indemnify Core Construction in an action that did not involve “property damage,”

which the Supreme Court of Florida had explained in United States Fire Insurance


                                           3
               Case: 16-10030     Date Filed: 09/28/2016   Page: 4 of 8


Co. v. J.S.U.B., Inc., 979 So. 2d 871 (Fla. 2007), and Auto–Owners Insurance Co.

v. Pozzi Window Co., 984 So. 2d 1241 (Fla. 2008), requires damage to tangible

property other than defective work. Empire did not make “any allegations that

Patnode’s (allegedly faulty) work resulted in ‘property damage,’ as . . . defined in

the 2005 Policy,” the district court determined, because the complaint “only

asserted that the roofs had been damaged, rather than asserting that the roofs had

caused damage to other elements of” the buildings. “Because Crum & Forster had

no obligation to defend Core Construction,” the district court ruled that the insurer

“also has no duty to indemnify . . . .”

                           II. STANDARD OF REVIEW

      We review de novo a summary judgment. Amerisure Mut. Ins. Co. v.

Auchter Co., 673 F.3d 1294, 1295 n.2 (11th Cir. 2012). Summary judgment is

appropriate when “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

                                 III. DISCUSSION

      Core Construction argues that Crum & Forster was obligated to provide a

defense in the state action filed by Empire. The complaint in that action, Core

Construction contends, alleged that the defective installation of roofing by its

subcontractor caused “property damage.” Core Construction argues that the district




                                          4
               Case: 16-10030         Date Filed: 09/28/2016   Page: 5 of 8


court failed to consider the complaint in conjunction with the written assignment

and with documents that described the damage to the condominiums.

       In the policy that Crum & Forster issued, “property damage” is defined as

“physical injury to tangible property.” And we must interpret the language of the

policy consistent with Florida law. See Amerisure, 673 F.3d at 1300. The Supreme

Court of Florida has concluded that “property damage” involves “damage beyond

the faulty workmanship or defective work.” J.S.U.B., 979 So. 2d at 889. The

“faulty workmanship or defective work . . . [must] damage[] the otherwise

nondefective completed project.” Id. As a result, there is no coverage for “property

damage” when a claim seeks solely “the costs of repairing and replacing the actual

defects in . . . construction.” Id.

       We have held that a claim for the costs to repair and replace a roof was not

covered as “property damage” in a commercial liability policy like the one issued

by Crum & Forster. Amerisure, 673 F.3d at 1306. In Amerisure, the insurer for a

general contractor assumed the defense in an action by the owner of an inn to

recover the costs of repairing and replacing roof tiles that were installed

improperly and that later dislodged and damaged other roof tiles. Id. at 1296.

Because the owner did not allege that the inn suffered any “damage beyond the

faulty workmanship” and sought “solely to remedy the installation of a defective

component, which . . . [was] the roof as a whole,” we concluded that the owner’s


                                              5
              Case: 16-10030     Date Filed: 09/28/2016      Page: 6 of 8


claim did not constitute “property damage” under the commercial liability policy.

Id. at 1307–09. We reached that conclusion based on the distinction the court had

drawn in J.S.U.B., 979 So. 2d at 890, “between a claim for the cost of repairing the

subcontractor’s defective work, which is not covered under a CGL policy, and a

claim for repairing the structural damage to the completed project caused by the

subcontractor’s defective work, which is covered.” Amerisure, 673 F.3d at 1306

(internal citation marks, brackets, and citation omitted).

      The complaint that Empire filed against Core Construction alleged a claim

for the cost of repairing and replacing a roof that had been installed improperly by

its subcontractor. Empire alleged that “the roofs of the condominiums were

negligently and improperly constructed” and, due to the companies’ negligence in

using “deficient and substandard tile installation procedures and practices,” Empire

had “to repair and replace the roofs of the condominiums resulting in damages in

excess of $2,500,000.” In its counts for breach of express and implied warranties,

Empire alleged that the “defect in the condominiums . . . caused the total loss of

the condominiums roofs” and that the companies had been “timely notified of the

loss of the condominiums and[, despite being] given the opportunity to honor their

warranties,” they “failed and refused to” do so. And in its count about the violation

of building codes, Empire alleged that it had “been required to repair and replace




                                          6
               Case: 16-10030    Date Filed: 09/28/2016   Page: 7 of 8


the latently defective roofs of the condominiums resulting in damages in excess of

$2,500,000.”

      Crum & Forster owed no duty to provide a defense to Core Construction

because the complaint against it did not allege a claim for “property damage.”

Empire failed to allege that the defective installation of roofing caused “physical

injury to tangible property” such that there was “damage to the completed project

caused by the subcontractor’s defective [roofing] work,” Amerisure, 673 F.3d at

1306, or that the defective work “caused the roof to fail in such a way as to allow

the elements to damage other components of the project,” id. at 1297. Empire, like

the owner of the inn in Amerisure, “never alleged that any part of the [buildings or

development] other than the roof was damaged by the defective roof.” Id. at 1307.

      Core Construction argues that the complaint alleged “property damage” in

three ways, but its arguments fail. First, Core Construction argues that the

complaint “alleged [there] was a catastrophic total loss . . . of the condominiums,”

but the complaint alleged that there was a “total loss of the condominiums roofs”

and that the “repair and replace[ment of] the roofs of the condominiums result[ed]

in damages.” Although Empire alleged that it gave “timely notice of the loss of the

condominiums,” as the district court stated, that “language is too vague” to allege

damage independent of the repair and replacement of the roofs. Second, Core

Construction argues that the written assignment that Empire attached to the


                                          7
               Case: 16-10030      Date Filed: 09/28/2016    Page: 8 of 8


complaint “establish[ed] that the alleged roof defects not only caused, but

increased, other storm damage,” but the assignment was explicitly “restricted to the

damages to the roofs . . . arising from [their] faulty construction and development.”

Third, Core Construction argues that “Empire’s reference to [expert reports and

other] documents establish[ed] . . . additional property damage,” but Empire

alleged that it “provided copies of” the documents to the companies in an

unsuccessful attempt to resolve the dispute. It was not enough, as Core

Construction and its amici contend, for the complaint to “indicat[e] there may have

been covered damage,” because “an insurance company’s duty to defend an

insured is determined solely from the allegations in the complaint against the

insured, not by the true facts of the cause of action against the insured . . . .” State

Farm Fire & Cas. Co. v. Steinberg, 393 F.3d 1226, 1230 (11th Cir. 2004); see

Jones v. Fla. Ins. Guar. Ass'n, Inc., 908 So. 2d 435, 443 (Fla. 2005).

                                 IV. CONCLUSION

      We AFFIRM the summary judgment in favor of Crum & Forster.




                                            8
