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Prestige Properties, Inc. v. National Builders and Contractors Insurance Co.

United States District Court, Fifth Circuit

October 10, 2013

PRESTIGE PROPERTIES, INC., Plaintiff,
v.
NATIONAL BUILDERS AND CONTRACTORS INSURANCE COMPANY, A RISK RETENTION GROUP, INC., Defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

HALIL SULEYMAN OZERDEN, District Judge.

BEFORE THE COURT are a Motion for Summary Judgment [12] filed by Defendant National Builders and Contractors Insurance Company, A Risk Retention Group, Inc., and a Counter Motion for Partial Summary Judgment [17] filed by Plaintiff Prestige Properties, Inc. Both Motions are now fully briefed. After due consideration of the record, the submissions on file, and relevant legal authorities, the Court finds that Defendant's Motion for Summary Judgment [12] should be granted and that Plaintiff's Counter Motion for Partial Summary Judgment [17] should be denied. Plaintiff's claims asserted in this action will be dismissed with prejudice.

I. PROCEDURAL HISTORY

In early 2006, Plaintiff Prestige Properties, Inc. ["Prestige"], contracted with an individual by the name of Lillian Elmore ["Elmore"] to perform repair work on Elmore's home, which had been damaged by Hurricane Katrina. Compl. [1] at 2.[1] The work included replacing drywall. Id. According to the Complaint, Prestige purchased the drywall from Bailey Lumber and delivered it to the Elmore home in March 2006. The drywall was completely installed by April 2006. Id.

In December 2009, Elmore and more than 2, 000 other plaintiffs filed in the United States District Court for the Eastern District of Louisiana an omnibus class action complaint in multi-district litigation ["Class Action Complaint"] asserting claims against certain manufacturers of "Chinese drywall." Id. at 3. Other defendants, including builders, were grouped into "subclasses." Id. Prestige maintains that Elmore is the only plaintiff who has named Prestige as a defendant. Id. The Class Action Complaint claims that Prestige built Elmore's home and "directly or through agents, installed defective drywall... which has resulted in harm and damages' to Elmore." Id. Prestige avers that "[t]he complaint further alleges that chemical components of the drywall break down and produce noxious gases that cause corrosion and damage to personal property, including appliances, wiring and other objects with metal surfaces." Id. at 3-4. The Class Action Complaint "alleges that exposure to these gases causes personal injury resulting from eye irritation, sore throat, nausea, fatigue, shortness of breath, fluid in the lungs and neurological harm." Id. at 4.

The parties agree that at all material times Prestige was insured by a commercial general liability policy [the "Policy"] issued by Defendant National Builders and Contractors Insurance Company, a Risk Retention Group, Inc. ["NBCI"]. Id. at 1-2; NBCI's Mot. [12] at 1-2. The Policy reads in relevant part as follows:

SECTION I - COVERAGES COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply.
* * *
b. This insurance applies to "bodily injury" and "property damage" only if:
(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"....

Policy [12-18] at 13.

The policy defines "bodily injury" as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time. No emotional distress is covered except emotional distress caused by bodily injury." Id. at 28. "Property damage" means either

a. Physical injuries to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it.

Id. at 31.

An "occurrence" is "an accident, including continuous and repeated exposure to substantially the same general ...


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