USCA11 Case: 23-11366 Document: 35-1 Date Filed: 04/11/2024 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11366
Non-Argument Calendar
____________________
SOUTHERN-OWNERS INSURANCE COMPANY,
Plaintiff-Counter Defendant-Appellant,
versus
MAC CONTRACTORS OF FLORIDA, LLC,
d.b.a. KJIMS Construction,
Defendant-Counter Claimant-Appellee,
PAUL S. DOPPELT,
Trustee of Paul S. Doppelt
Revocable Trust dated 12/08/90,
DEBORAH A. DOPPELT,
Trustee of Deborah A. Doppelt
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2 Opinion of the Court 23-11366
Revocable Trust dated 12/08/90,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:18-cv-00021-JES-KCD
____________________
Before ROSENBAUM, BRANCH, and ABUDU, Circuit Judges.
PER CURIAM:
This is the third appeal in an insurance dispute arising from
the abandoned construction of a custom-built home in Marco Is-
land, Florida. Southern-Owners Insurance Company seeks a dec-
laration that it owed no duty to defend its insured, MAC Contrac-
tors of Florida, LLC, doing business as KJIMS Construction, against
a since-resolved lawsuit for breach of contract brought by the prop-
erty owners after KJIMS abandoned the job site and left the work
unfinished and damaged. 1
1 According to the district court, the state-court lawsuit was dismissed in Sep-
tember 2019 under a settlement agreement for $70,000. KJIMS has withdrawn
its claim for indemnification of the settlement amount, leaving only the issue
of the duty to defend.
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23-11366 Opinion of the Court 3
In the prior two appeals, we rejected Southern-Owners’ ar-
guments that it had no duty to defend KJIMS from the property
owners. We held that coverage was not entirely excluded by a
“Your Work” exclusion, Southern-Owners Ins. Co. v. MAC Contractors
of Fla., LLC (“KJIMS I”), 768 F. App’x 970, 973 (11th Cir. 2019), and
that the complaint could be fairly construed to allege “property
damage” within the meaning of the commercial liability policy,
Southern-Owners Ins. Co. v. MAC Contractors of Fla., LLC (“KJIMS II”),
819 F. App’x 877, 883 (11th Cir. 2020).
On remand, the district court considered two additional pol-
icy exclusions, j(6) and j(7), and concluded that they did not elimi-
nate coverage. Accordingly, the court granted KJIMS’ motion for
summary judgment and declared that Southern-Owners had a duty
to defend KJIMS in the underlying state court lawsuit. Southern-
Owners appeals, arguing that it had no duty to defend because all
of the damages alleged in the underlying lawsuit were entirely
within the scope of exclusions j(6) and (7) and the Your Work ex-
clusion, considered cumulatively.
We review de novo the grant of summary judgment and the
interpretation of contract language. Southern-Owners Ins. Co. v.
Easdon Rhodes & Assocs. LLC, 872 F.3d 1161, 1163–64 (11th Cir.
2017). Because this is a diversity action, we apply the substantive
law of the forum state, which is Florida. Mid-Continent Cas. Co. v.
Am. Pride Bldg. Co., LLC, 601 F.3d 1143, 1148 (11th Cir. 2010). We
may affirm on any ground supported by the record. Kernel Records
Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012).
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4 Opinion of the Court 23-11366
An insurer’s duty to defend arises where the underlying alle-
gations “fairly bring the case within the scope of coverage.” State
Farm Fire & Cas. Co. v. Tippett, 864 So. 2d 31, 35–36 (Fla. 4th DCA
2003). “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. v. Biltmore Constr. Co., Inc., 767 F.2d
810, 811–12 (11th Cir. 1985). Any doubt about whether the insurer
owes a duty to defend must be resolved against the insurer and in
favor of the insured. Id. at 812. So when there is “uncertainty in
the law at the time” about the insurer’s duty to defend, the insurer
is “required to resolve this uncertainty in favor of the insured and
offer a defense.” Carithers v. Mid Continent Cas. Co., 782 F.3d 1240,
1246 (11th Cir. 2015).
“[E]xclusionary clauses are construed more strictly than cov-
erage clauses.” Category 5 Mgmt. Grp., LLC v. Companion Prop. & Cas.
Ins. Co., 76 So. 3d 20, 23 (Fla. 1st DCA 2011). But if the complaint
clearly shows “the applicability of a policy exclusion, the insurer
has no duty to defend.” Keen v. Fla. Sheriffs’ Self-Insurance Fund, 962
So. 2d 1021, 1024 (Fla. 4th DCA 2007). The insurer bears the heavy
burden of showing “that the allegations of the complaint are cast
solely and entirely within the policy exclusion and are subject to no
other reasonable interpretation.” Castillo v. State Farm Fla. Ins. Co.,
971 So. 2d 820, 824 (Fla. 3d DCA 2007).
The CGL policies at issue provided coverage for damages
due to “property damage” caused by an “occurrence.” Under a
“Your Work” exclusion, the policies did not cover “property
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23-11366 Opinion of the Court 5
damage” to the insured’s “work” that had been “completed or
abandoned.” Exclusions j(6) and j(7) also excluded coverage for
property damage to the following:
(6) That particular part of real property on which any in-
sured or any contractors or subcontractors working directly
or indirectly on your behalf are performing operations, if
the “property damage” arises out of those operations; or
(7) That particular part of any property that must be re-
stored, repaired or replaced because “your work” was incor-
rectly performed on it.
Exclusions j(6) and j(7) in the subject policy are identical to exclu-
sions j(5) and j(6) in the standard CGL coverage form, respectively.
For consistency with the case law, we’ll use the latter, standard
numbering to describe the Particular Part exclusions.
In the first appeal, we agreed with KJIMS that the Your Work
exclusion did not cover property damage that occurred during on-
going operations, and that the underlying allegations could reason-
ably be construed to allege damages that occurred before abandon-
ment—that is, during ongoing operations. KJIMS I, 768 F. App’x at
973. We also held, in the second appeal, that the allegations could
be construed to allege that “one subcontractor damaged nondefec-
tive work performed by another subcontractor,” creating a poten-
tial for coverage for “property damage” beyond “the defective work
itself.” KJIMS II, 819 F. App’x at 882; see Carithers, 782 F.3d at 1250
(holding that “property damage” under Florida law requires “dam-
age beyond the defective work of a single sub-contractor”).
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Southern-Owners does not challenge these rulings, which it con-
cedes are law of the case. 2
Instead, Southern-Owners maintains that the Particular Part
exclusions, specifically exclusion j(5), operate to exclude coverage
for any property damage caused by KJIMS or its subcontractors
during ongoing operations. And because the Your Work exclusion
excludes damages occurring once operations ceased, according to
Southern-Owners, “all damages alleged in the [underlying law-
suit]—no matter when they occurred—are cast solely and entirely
within these exclusions cumulatively.”
The parties offer competing views of the scope of the Par-
ticular Part exclusions. Southern-Owners advocates a broad inter-
pretation, under which “that particular part” is defined by reference
to the scope of the insured’s project. Because KJIMS was the gen-
eral contractor, Southern-Owners contends, these exclusions bar
coverage for any property damage at the project site caused by
KJIMS or its subcontractors. KJIMS proposes a narrower view, em-
phasizing the limiting nature of the phrase “that particular part.”
That restrictive language, according to KJIMS, means that the ex-
clusions bar coverage for damages only for the distinct part or unit
of the project being worked on, rather than the entire scope of a
contractor’s work.
2 See Culpepper v. Irwin Mortg. Corp., 491 F.3d 1260, 1271 (11th Cir. 2007) (“The
law-of-the-case doctrine holds that subsequent courts will be bound by the
findings of fact and conclusions of law made by the court of appeals in a prior
appeal of the same case.”) (quotation marks omitted).
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23-11366 Opinion of the Court 7
In support of its broader interpretation, Southern-Owners
primarily relies on our decision in Travelers Indemnity Co. of Connect-
icut v. Richard Mckenzie & Sons, Inc., 10 F.4th 1255 (11th Cir. 2021).
In Mckenzie & Sons, we examined exclusion j(5) in the context of
damages caused by the manager of citrus groves. Id. at 1262. Ap-
plying Florida law, we defined “particular part of real property” in
the exclusion as “the property on which [the insured] was perform-
ing operations.” Id. at 1263. And we defined the manager’s “oper-
ations” by reference to the duties specified in the work contract. Id.
Because the damage happened to the citrus groves on which the
manager was performing those operations, and arose out of those
operations, we found that the Particular Part exclusion applied to
bar coverage. Id. Southern-Owners contends that this case pre-
sents the “same situation” as Mckenzie & Sons, since KJIMS, like the
citrus manager, was responsible for all operations at the property
where the damages occurred.
Even assuming Mckenzie & Sons is on point, though, “it
would not follow that [Southern-Owners] was entitled to refuse to
offer [KJIMS] a defense.” Carithers, 782 F.3d at 1246. That’s because
“an insurer is obligated to defend a claim even if it is uncertain
whether coverage exists under the policy,” and even if it ultimately
prevails on the issue of coverage. Id. Mckenzie & Sons was decided
in August 2021, nearly two years after the underlying lawsuit set-
tled. So it does not speak directly to the state of the “law at the
time” of the underlying lawsuit or “retroactively justify [the] re-
fusal to offer a defense.” Id.
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Here, at the time of the underlying lawsuit, there was un-
certainty in the law about the scope of exclusions j(5) and j(6). See
Carithers, 782 F.3d at 1246. Southern-Owners has not identified any
Florida appellate or Supreme Court decision that had defined the
phrase “that particular part” or applied it in materially similar cir-
cumstances as this case. And Florida district courts, applying Flor-
ida law, had adopted differing views of the scope of Particular Part
exclusions.3 Beyond Florida, other circuit courts had adopted views
consistent with the narrower interpretation.4 The narrower view
was also supported by the body that drafted the Particular Part
3 Compare Bradfield v. Mid-Continent Cas. Co., 143 F. Supp. 3d 1215, 1243 (M.D.
Fla. 2015) (“Where an insured is a builder of homes, as is the case here, the
entire house is considered the product of the builder. Thus, the [Particular
Part] exclusions serve to deny coverage when the insured builder or its sub-
contractor has caused any damage to the home itself.”) (quotation marks omit-
ted), with Essex Ins. Co. v. Kart Constr., Inc., No. 8:14-cv-356, 2015 WL 4730540,
at *4–5 (M.D. Fla. Aug. 10, 2015) (adopting the narrower view that “the dis-
positive issue” for exclusion j(5) “is the ‘operations’ that [the insured] per-
formed at the moment of the accident, not the tasks that the contract explicitly
contemplates”). Both Bradfield and Kart relied heavily on American Equity Ins.
Co. v. Van Ginhoven, 788 So. 2d 388 (Fla. 5th DCA 2001).
4 See Fortney & Weygandt, Inc. v. Am. Mfrs. Mut. Ins. Co., 595 F.3d 308, 311 (6th
Cir. 2010) (stating the words “that particular part” are “trebly restrictive,” mak-
ing clear that the exclusion applies only to “the distinct component parts of a
building” on which work was being performed, “and not to the building gen-
erally”); Mid-Continent Cas. Co. v. JHP Development, Inc., 557 F.3d 207, 217 (5th
Cir. 2009) (reasoning that exclusion j(6) did not apply because “[t]he exterior
finishes and retaining walls were distinct component parts that were each the
subject of separate construction processes and are severable from the interior
drywall, stud framing, electrical wiring, and wood flooring”).
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23-11366 Opinion of the Court 9
exclusions. See INSURANCE SERVICES OFFICE, INC., ISO CIRCULAR
GENERAL LIABILITY GL 79-12 ( Jan. 29, 1979). 5
Southern-Owners does not dispute that it had a duty to de-
fend under the narrow interpretation of Particular Part exclusions
advocated by KJIMS and its supporting cases. And it has not at-
tempted to discredit that interpretation apart from citing Mckenzie
& Sons, which was decided well after the underlying lawsuit settled.
Accordingly, given the uncertainty about the scope of exclusions
j(5) and j(6) at the time, Southern-Owners has not shown that the
damages were “solely and entirely within the policy exclusion[s].”
Castillo, 971 So. 2d at 824. Accordingly, consistent with our prior
decisions in these cases, we hold that Southern-Owners had a duty
to defend the underlying lawsuit. See Trizec Props., 767 F.2d at 811–
12; Tippett, 864 So. 2d at 35–36.
For these reasons, we affirm the district court’s judgment.
AFFIRMED.
5 To illustrate the application of exclusion j(5), the ISO offered the following
example:
[A] general contractor engages a steel erection contractor to
erect steel beams for a building. After erecting several beams,
the subcontractor negligently swings another beam against the
erected beams causing damage to all the beams. The damage
to the beams already in place would be covered. The damage
to the swinging beams would be excluded . . . .