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Starr Surplus Lines Insurance Co. v. Banner Property Management, Inc.

United States District Court, E.D. Louisiana

December 10, 2018

STARR SURPLUS LINES INSURANCE COMPANY
v.
BANNER PROPERTY MANAGEMENT COMPANY; MARC B. BANNER; and ROBERT J. ROTH

         SECTION “F”

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE.

         Before the Court is Starr Surplus Lines Insurance Company's motion for summary judgment that it has no duty to defend or indemnify Banner Property Management, Inc. or Marc C. Banner for the claims asserted by Robert J. Roth. For the reasons that follow, the motion is DENIED.

         Background

         This declaratory judgment action regarding the scope of insurance defense and indemnity obligations arises out alleged defects in the construction of residential property.

         On June 26, 2013, Robert J. Roth entered into a contract with Banner Property Management, Inc. (“BPMI”) for the construction of a home on a lot owned by Roth and located at 6851 General Haig Street in New Orleans, Louisiana. Pursuant to the contract, Roth agreed to pay $367, 074.97 for the construction in bi-weekly installments, with the balance due upon the project's completion. Serving as the general contractor, BPMI performed all work associated with building the home, either directly or through one of its subcontractors, aside from the installation of sprayfoam insulation underneath the floors. Although Roth purchased some of the appliances and fixtures for the home, BPMI installed them. During the construction process, BPMI obtained a Commercial General Liability Insurance Policy from Starr Surplus Lines Insurance Company (“Starr”), effective from April 9, 2014 through April 9, 2015.[1]

         The New Orleans Department of Safety and Permits issued a Certificate of Occupancy on August 1, 2014. The following year, on August 3, 2015, Roth sued BPMI and Marc C. Banner, the company's manager, in the Civil District Court for the Parish of Orleans, asserting that the defendants: (1) violated the New Home Warranty Act, La. R.S. §§ 9:3143-3150; (2) breached the construction contract by failing to perform services in a workmanlike manner and/or by providing and utilizing defective materials; and (3) were negligent in supplying, installing, selling, or otherwise being responsible for the installation of defective materials in the home. After an exception of no cause of action was asserted, Roth filed an amended petition, alleging the following seventy-eight (78) specific physical defects and damages:

(1) Discoloration on the brick exterior of the house;
(2) Severe cupping of the wood flooring;
(3) Duct leak in the attic of the house;
(4) Poor quality and construction of the ceramic tile work located in the bathroom;
(5) Inadequate fastening of fixtures and hardware in the bathroom located in the front of the house;
(6) Defective wiring of ground fault interrupters which prevents the interrupters from tripping when tested;
(7) Failure to install proper mounting screws for the electrical panel cover;
(8) Damaged sheetrock behind the electrical panel cover;
(9) Ceiling fan not properly mounted to the correct height;
(10) Discoloration exterior window caulking;
(11) Incorrect installation of exterior window caulking;
(12) Mold forming on the exterior window caulking;
(13) Damaged or defective marble floor tiles located in the master bathroom;
(14) Improper caulking and sealing of the backsplash located in the bathroom;
(15) Discoloration and damage to the marble sink located in the master bathroom as a result of the improper sealing of the marble;
(16) Improper mounting and the light and vent system located in the master bathroom;
(17) Excess grout used in the finishing the drain of the shower located in the master bathroom;
(18) Improper installation and plumbing to the master bathroom shower heads resulting in limited water flow;
(19) Discoloration and damage to the master bathroom sink as a result of water leakage;
(20) Failure to install shelves in the cabinets of the master bathroom;
(21) Improper caulking of the bathtub located in the front bathroom on the left side of the house;
(22) Poor craftsmanship of the ceramic wall tiles in the left front bathroom;
(23) Poor workmanship of the connection between the vent and the trim located at the cooktop exhaust vent in the kitchen;
(24) The metal front of the coolant exhaust vent is bent and crimped;
(25) Improper installation of the pantry pocket door;
(26) Improper installation of several electrical switches and junction box covers throughout the house;
(27) Improper installation of the kitchen faucet;
(28) Poor craftsmanship of the kitchen countertop indicated by a poor joint cut in the countertop;
(29) Improper mounting of numerous electrical outlets;
(30) Improper installation of the kitchen countertops;
(31) Separation of the wooden baseboards and the interior walls;
(32) Improper excess drying leading to visible joints in the crown molding in the interior of the house;
(33) Improperly finished intersections between interior walls and wooden beams leading to visible gaps;
(34) Improper over-sanding of wooden bar;
(35) Improper installation of the HVAC system in the attic leading to sheetrock material coming loose due to excessive vibration;
(36) Improper finishing of the interior paint;
(37) Mismatched textures used in completing the sheetrock ceiling of the den;
(38) Splitting and separating of cypress wood beams located in the house due ...

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