Case: 16-10996   Date Filed: 01/23/2017   Page: 1 of 10


                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10996
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:14-cv-01182-TJC-MCR


AUTO-OWNERS INSURANCE COMPANY,

                                                      Plaintiff-Appellee,


                                  versus

ELITE HOMES, INC.,

                                                      Defendant-Appellant.

                       ________________________

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

                            (January 23, 2017)

Before HULL, MARCUS, and JORDAN, Circuit Judges.

PER CURIAM:
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      Elite Homes, Inc. appeals the district court’s grant of summary judgment in

favor of Auto-Owners Insurance Company, arguing that Auto-Owners has a duty

to defend it in an underlying state court action. After review of the record and

consideration of the parties’ briefs, we affirm.

                                           I

      We first review the underlying litigation that gave rise to Elite Homes’ claim

for a defense, and then set out the terms of the relevant policy.

                                          A

      On March 21, 2007, Joseph and Emily Crozier entered into a written

contract with Elite Homes for the construction of a single-family residence.

Shortly after construction was completed in June of 2008, the Croziers began

experiencing problems due to water intrusion from the property’s windows. Elite

Homes made several repairs over the subsequent years, but they proved to be

ineffective. Around January of 2014, the Croziers obtained inspection and testing

reports which revealed elevated levels of toxic mold and opined that construction

and installation defects caused the active water intrusion. In compliance with

Chapter 558 of the Florida Statutes, the Croziers gave Elite Homes notice and a

final opportunity to cure the problems with the property. The Croziers were not

satisfied with Elite Homes’ proposed plan to remedy the problem, and sued Elite

Homes in state circuit court, asserting claims for breach of contract and negligence.


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Elite Homes then notified its insurer, Auto-Owners, of the Croziers’ lawsuit, which

remains pending. See Croziers v. Elite Homes, Inc., Case No. 16-2014-CA-003913

(Fla. Duval Cir. Ct. 2014).

                                         B

      Auto-Owners issued a Commercial General Liability Policy to Elite Homes

on October 15, 2007. The policy provides the following coverage for “[p]roperty

damage”:

      a. We will pay those sums that the insured becomes legally obligated
      to pay as damages because of . . . “property damage” to which this
      insurance applies. We will have the right and duty to defend the
      insured against any “suit” seeking those damages.

D.E. 1-2 at 3. “Property damage” is defined as:

      a. Physical 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; or

      b. Loss of use of tangible property that is not physically injured. All
      such loss shall be deemed to occur at the time of the “occurrence” that
      caused it.

Id. at 22. The policy excludes from coverage damage to “[y]our work,” id.

at 8, which is defined as:

      (1) Work or operations performed by you or on your behalf; and

      (2) Materials, parts or equipment furnished in connection with such
      work or operations.

Id. at 23. “Your work” includes:


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       (1) Warranties or representations made at any time with respect to the
       fitness, quality, durability, performance or use of “your work”; and

       (2) The providing of or failure to provide warnings or instructions.

Id.

                                               II

       After being notified of the Croziers’ lawsuit, Auto-Owners defended Elite

Homes under a reservation of rights. On September 29, 2014, Auto-Owners filed

this federal action seeking a declaratory judgment that it did not have a duty to

defend or a duty to indemnify Elite Homes in the Croziers’ lawsuit.1

Auto-Owners contended that Elite Homes’ policy did not cover the damages

claimed by the Croziers. Auto-Owners and Elite Homes filed cross-motions for

summary judgment.

       The district court granted Auto-Owners’ motion for summary judgment.

The district court stated that, based on the agreement of Elite Homes and Auto-

Owners at oral argument, the sole issue before it was whether the Amended

Complaint in the underlying action sufficiently alleged damage to “other property”

so that the claims would not be barred by the policy’s “Damages To Your Work”

1
   By agreement of the parties, these two issues were bifurcated, and the duty to indemnify
portion of the case was abated pending the outcome of the underlying case. The duty to defend
is “separate and apart from the duty to indemnify and the insurer may be required to defend a suit
even if the later true facts show there is no coverage.” Trizec Props., Inc. v. Biltmore Constr.
Co., Inc., 767 F.2d 810, 812 (11th Cir. 1985). As such, an insurer’s duty to defend is “of greater
breadth than the insurer’s duty to indemnify.” Jones v. Fla. Ins. Guar. Ass’n, Inc., 908 So. 2d
435, 443 (Fla. 2005).


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exclusion. Auto-Owners’ position was that the damages alleged in the underlying

action fell solely within the policy’s exclusion provisions. Elite Homes’ position

was that the allegations in the Croziers’ amended complaint sufficiently alleged

damages that were covered under the policy, thereby requiring Auto-Owners to

provide a defense.

      The district court reviewed three allegations in the amended complaint with

respect to damage: there was “extensive damage to other property includ[ing] the

frame subsurface, sheathing, insulation, drywall, and interior finishes,” D.E. 16 at

24, ¶ 14; there was “damage to interior portions of the home,” id. at 28, ¶ 32; and

there was “damage to other property including, but not limited to, exterior wood

framing, wood substrate, vapor barriers, insulation, drywall, and interior finishes,”

id. at 28, ¶ 33. The district court reasoned that, to the extent the damage in the

underlying action was to the structure of the property and Elite Homes’ defective

work, such damage was excluded under the “Damages To Your Work” provision

of the policy. Further, the district court stated that “conclusory buzz words” and

inferences were insufficient to bring the allegations of damage within coverage

since even under the “most liberal and broadest of readings” of the underlying

amended complaint, it did not contain allegations of damage to personal property

or property other than the home itself.




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      The district court concluded that the allegations of damage in the underlying

action related only to the structure of the property itself, which both Auto-Owners

and Elite Homes conceded were excluded under the policy. Accordingly, the

district court held that Auto-Owners had no duty to defend Elite Homes in the

Croziers’ action. Elite Homes now appeals.

                                          III

      We review a district court’s grant of summary judgment de novo. See State

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

Summary judgment is appropriate when the evidence, viewed in the light most

favorable to the nonmoving party, presents no genuine issue of material fact. See

Thrasher v. State Farm Fire & Cas. Co., 734 F.2d 637, 638 (11th Cir. 1984). The

parties agree that Florida law governs.

                                          A

      We determine whether Auto-Owners has a duty to defend Elite Homes in the

underlying action by looking only at the allegations in the Croziers’ amended

complaint. See, e.g., Jones, 908 So. 2d at 443. The duty to defend an entire action

arises when the underlying complaint alleges “facts that fairly and potentially bring

the suit within policy coverage.” Id. at 442–43 (emphasis added). Further, if “the

complaint alleges facts partially within and partially outside the scope of coverage,

the insurer is obligated to defend the entire suit.” Trizec Props., Inc., 767 F.2d at


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811–12. Any doubts about whether the duty to defend is triggered are resolved in

favor of the insured. Jones, 908 So. 2d at 443.

      An insurer has no duty to defend if the complaint shows the applicability of

a policy exclusion. See Keen v. Fla. Sheriffs’ Self-Insurance Fund, 962 So. 2d

1021, 1024 (Fla. 4th DCA 2007) (ruling that insurer had no duty to defend because

allegations in the complaint fell within the policy exclusion).           Thus, “[t]he

allegations within the complaint must state a cause of action that seeks recovery for

the type of damages covered by the insurance policy in question.” State Farm Fire

& Cas. Co. v. Tippett, 864 So. 2d 31, 35–36 (Fla. 4th DCA 2003). Conclusory

“buzz words,” like allegations that fail to allege any underlying facts that create a

duty to defend, are insufficient. See Amerisure Ins. Co. v. Gold Coast Marine

Distribs., Inc., 771 So. 2d 579, 582 (Fla. 4th DCA 2000) (holding that use of buzz

words were insufficient to trigger coverage); Steinberg, 393 F.3d at 1230

(“Conclusory buzz words unsupported by factual allegations are not sufficient to

trigger coverage.”) (internal quotation marks omitted).

                                         B

      The parties agree that Elite Homes’ own work is excluded under the

“Damages To Your Work” exclusion.             See Appellant’s Br. at 7 (“[T]he

[u]nderlying [c]omplaint need only fairly and potentially, not specifically, allege

the existence of damage to property other than that included within Elite Homes’


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scope of work.”); Appellee’s Br. at 13 (“There is no dispute that repairs to the

entirety of the Croziers’ home itself . . . are damage to general contractor Elite

Homes’ ‘work,’ and therefore, excluded from coverage.”) (emphasis added). This

is consistent with how courts in Florida have interpreted similar “Damage to Your

Work” provisions. See Nova Cas. Co. v. Willis, 39 So. 3d 434, 437 (Fla. 3d DCA

2010) (affirming lower court’s determination that “your work” exclusion applied to

work completed on private owner’s property but did not apply to work incorrectly

performed on state property); Aetna Cas. & Sur. Co. of Am. v. Deluxe Sys., Inc. of

Fla., 711 So. 2d 1293, 1297 (Fla. 4th DCA 1998) (concluding that purchase and

installation of replacement shelving components fell within “your work”

exclusion); Miranda Const. Dev., Inc. v. Mid-Continent Cas. Co., 763 F. Supp. 2d

1336, 1340 (S.D. Fla. 2010) (holding that claim was barred by “your work”

exclusion because underlying complaint only alleged damage to owner’s home).

      The parties’ sole disagreement concerns whether the amended complaint

sufficiently alleged damages beyond the “Damages To Your Work” exclusion.

Specifically, the dispute is about whether the following allegations are sufficient to

allege damage beyond Elite Homes’ work: “extensive damage to other property

includ[ing] the frame subsurface, sheathing, insulation, drywall, and interior




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finishes,” D.E. 16 at 24, ¶ 14, and “damage to interior portions of the home.” Id. at

28, ¶ 32.2

       Elite Homes contends that the use of those phrases sufficiently implicates

damages to “other property” that are outside of Elite Homes’ own work. We

disagree. A fair reading of the allegations of the Croziers’ amended complaint

leads us to conclude that Auto-Owners does not have a duty to defend Elite Homes

in the underlying action.3 The district court correctly concluded that the amended

complaint contains no factual allegations of damage to property other than the

work performed by Elite Homes, and that the use of conclusory phrases such as

“other property” is insufficient.

       Elite Homes also argues that the district court’s holding essentially requires

the underlying complaint to specifically identify particular property damage to

trigger Auto-Owners’ duty to defend and that this level of specificity is

unnecessary. Although we agree that such a level of specificity is not required

under Florida law, in this case the language in the amended complaint is too vague

for us to assume that the Croziers alleged anything other than damages to the




2
   In the summary judgment proceedings below, the parties referred to a third provision, D.E. 16
at 28, ¶ 33, in their briefs. The district court in turn relied on all three provisions when it granted
Auto-Owners’ motion for summary judgment. On appeal, however, Elite Homes only relies on
two provisions.
3
  Although the Croziers amended their complaint during the pendency of this case in the district
court, the damages allegations were not amended.
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home, and therefore Elite Homes’ own work. As a result, the damage alleged falls

squarely within the “Damage to Your Work” exclusion.




                                      IV

      For the foregoing reasons, we hold that Auto-Owners has no duty to defend

Elite Homes in the underlying action, and affirm the district court’s grant of

summary judgment in favor of Auto-Owners.

      AFFIRMED.




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