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Devoe v. Great American Insurance

Insurance company had no duty to defend construction company against homeowners claims that their home was poorly constructed because they failed to show that the substandard construction constituted an accident or occurrence under the insurance policy.

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Dave and Kim Devoe (the “Devoes”) appeal the trial court’s summary judgment in favor of Great American Insurance (“Great American”) and the denial of the Devoes’ motion for summary judgment. We will affirm the judgment of the trial court.

BACKGROUND

The Devoes contracted with Tri-Mark Development Corporation (“Tri-Mark”) to construct a custom home. Tri-Mark was insured by Great American under a Business Pro Commercial Liability Policy (the “Policy”). The Devoes contend that as work progressed, a number of flaws developed in Tri-Mark’s performance, including improper and deficient workmanship and the failure to complete the home in the agreed upon time. The Devoes filed suit against Tri-Mark and its principal, Gerald Zigrossi, to recover damages and attorney’s fees. The Devoes alleged that Tri-Mark breached the contract by failing to construct the residence in a good and workmanlike manner and by violating certain provisions of the Deceptive Trade Practices Act (“DTPA”). Tri-Mark requested that Great American defend and indemnify Tri-Mark based on the Policy, which Tri-Mark argues covered the complaints. Great American declined to defend on the basis that the claims alleged were not covered by the Policy. Tri-Mark failed to appear for trial, and the Devoes provided the trial court with evidence of liability and damages. The Devoes were granted a default judgment against Tri-Mark for actual damages of $216,035.13, attorney’s fees in the amount of $27,173.23, and post-judgment interest.

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