Florida trigger

In Johnson-Graham-Malone, Inc. v. Austwood Enterprises, Inc., No. 16-2009-CA-005750-XXXX-MA (Fla. 4th Cir. Ct. Duval County, April 29, 2011), insured JGM was the general contractor for an apartment project completed in 1998.  In 2007, the project owner sued JGM seeking damages for defective construction resulting in moisture penetration property damage.  JGM tendered its defense to Amerisure.  Amerisure denied a defense.  JGM defended and settled the underlying suit and then filed suit against Amerisure seeking recovery of defense and settlement costs.  The trial court granted JGM’s motion for partial summary judgment.  The court first addressed Amerisure’s duty to defend.  Applying Florida law, the court held that, although the underlying complaint alleged that the property damage was not discovered until after expiration of the Amerisure policies, it did allege the potential for property damage to have actually occurred during one or more Amerisure policy periods, and not falling entirely within exclusions, thus giving rise to a duty to defend. The court expressly rejected a manifestation trigger in favor of an injury-in-fact trigger, relying primarily on Travelers Ins. Co. v. C. J. Gayfer’s & Co., 366 So.2d 1199  (Fla. 1st DCA 1979) and declining to follow the several federal district trial court decisions purporting to apply a manifestation trigger.   The court then addressed Amerisure’s duty to indemnify.  The court states that Amerisure will have a duty to indemnify with respect to any property damage that actually occurred during an Amerisure policy period, unless Amerisure is able to prove that such property damage falls within an exclusion.