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FCCI Insurance Co. v. Island Pointe, LLC

United States District Court, D. South Carolina, Charleston Division

February 22, 2018

FCCI Insurance Company, Plaintiff,
v.
Island Pointe, LLC, et. al, Defendants.

          ORDER AND OPINION

          Richard Mark Gergel, United States District Court Judge

         This matter is before the Court on six Motions to Dismiss filed by Tallent and Sons, Inc. ("Tallent") (Dkt. No. 14); Liberty Mutual Fire Insurance Company ("Liberty") (Dkt. No. 38); Pennsylvania Lumberman's Mutual Insurance Company ("PLM") (Dkt. No. 43); Scottsdale Insurance Company ("Scottsdale") (Dkt. No. 48); American Residential Services, LLC ("ARS") (Dkt. No. 92); and Creekside of Charleston, Inc. ("Creekside") (Dkt. No. 95).[1]Plaintiff FCCI Insurance Company ("FCCI") has filed a single response to the Motions to Dismiss (Dkt. No. 101), Scottsdale has filed a Reply (Dkt. No. 106), and PLM has joined Scottsdale's arguments in reply (Dkt. No. 107). For the reasons set forth below, the six Motions to Dismiss are granted.

         I. Background and Relevant Facts

          This is a declaratory judgment action arising out of the construction of Palmetto Pointe at Peas Island, a condominium complex in Charleston, South Carolina (the "Peas Island Project"). Complete Building Corporation ("Complete") was the general contractor for the Peas Island Project. Plaintiff FCCI issued commercial general liability policies and umbrella policies to Complete. The Palmetto Pointe at Peas Island Condominium Property Owners Association, Inc. (the "Peas Island POA") filed the underlying complaint against Complete and a number of subcontractors alleging latent construction defects that caused water intrusion and other damages.

         FCCI is defending Complete in the underlying action. FCCI filed this action seeking a declaratory judgment that Complete qualifies as an additional insured under the policies Defendants issued to Complete's subcontractors and that FCCI is therefore absolved of its duty to defend Complete under the "Other Insurance" provision in the policies FCCI issued to Complete.[2] The "Other Insurance" provision in the general liability policies FCCI issued to Complete provides the following:

         4. Other Insurance

         If other valid and collectible insurance is available to the insured for a loss we cover under Coverages A or B of this Coverage Part, our obligations are limited as follows:

a. Primary Insurance This insurance is primary except when Paragraph b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in Paragraph c. below.
b. Excess Insurance
(1) This insurance is excess over
(a) Any of the other insurance, whether primary, excess, contingent or on any other bases:
(b) Any other primary insurance available to you covering liability for damages arising out of the premises or operations, or the products and completed operations, for which you have been added as an additional insured by attachment of an endorsement.
(2) When this insurance is excess, we will have no duty under Coverages A or B to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those insurers.
(3) When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, ...

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