Professional Liability

Colony Insurance Company’s insurance policy with the general contracting company, Titan Restoration Construction, Inc., contained an endorsement with a subcontractor provision (the endorsement) which required a subcontractor to name Titan as an additional insured under the subcontractor’s Commercial General Liability policy on a primary and non-contributory basis in favor of Titan. Titan’s policy also contained an “other insurance” clause, which stated it “is excess over” any other primary insurance available “covering liability for damages arising out of the premises or operations … for which [Titan has] been added as an additional insured.” 

Titan contracted with Certified Roofing Solutions, LLC to replace a roof on a building. Prior to completing the work, Titan and Certified Roofing entered into two agreements, one being the Re-Roofing Proposal/Agreement that contained a disclaimer that Certified Roofing would not be held responsible for any interior or exterior water damage to the premises. While the job was ongoing, the roof began to leak, causing water damage to the building. Titan then filed a claim with Colony Insurance, which was denied because Titan failed to comply with the terms of the policy when Certified Roofing failed to add Titan as an additional insured. 

Thereafter, Titan filed a declaratory relief action. During the pendency of that suit, both parties filed motions for summary judgment. The trial court granted Titan’s motion, finding it was added as an additional insured under Certified Roofing’s policy, and denied Colony Insurance’s motion on the grounds that the Titan policy did not plainly and unambiguously require that the agreement between Titan and Certified Roofing contain the words “primary and noncontributory.” 

On appeal, Titan argued the endorsement created an ambiguity with the policy’s “Other Insurance” clause, which results in favor of itself. However, the Fourth District Court of Appeal disagreed, stating the endorsement here controls over the language contained within the policy, citing Herrington v. Certain Underwriters at Lloyd’s London, 342 So. 3d 767, 769 (Fla. 4th DCA 2022). The district court also found that neither of Titan’s contracts with Certified Roofing complied with the endorsement, which was a direct failure under the policy, thus, making Colony Insurance’s denial proper. 

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