UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

WESTCHESTER SURPLUS LINES 

INSURANCE COMPANY; ILLINOIS 

UNION INSURANCE COMPANY, 

Plaintiffs,

v.

SUMMERS FIRE SPRINKLERS, INC.; 

LATITUDE ON THE RIVER 

CONDOMINIUM ASSOCIATION, INC.

Defendant.

/

CASE NO: 

COMPLAINT FOR DECLARATORY RELIEF

WESTCHESTER SURPLUS LINES INSURANCE COMPANY and ILLINOIS UNION 

INSURANCE COMPANY (individually, “WSLIC” and “ILU,” and collectively, “Chubb”) file 

suit against SUMMERS FIRE SPRINKLERS, INC. (“Summers”) and LATITUDE ON THE 

RIVER CONDOMINIUM ASSOCIATION, INC. (the “Association”), and allege:

NATURE OF ACTION

1. This is an action for declaratory relief under 28 U.S.C. § 2201 for a determination 

that there is no coverage under several Chubb commercial general liability policies because,

among other reasons, there is no coverage for “property damage” that occurs outside the policy 

periods, and Summers had prior knowledge of “property damage” before some of the policy 

periods.

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JURISDICTION AND VENUE

2. Jurisdiction exists under 28 U.S.C. § 1332 because there is complete diversity 

of citizenship and the amount in controversy exceeds $75,000, exclusive of attorney’s fees, 

interest, and costs.

3. Venue is proper in this district because the underlying damage occurred in this 

district and the underlying action is pending in this district. 28 U.S.C. § 1391(b) (1) and (2).

4. All conditions precedent have occurred, been performed, or have been waived.

THE PARTIES

5. WSLIC is a Georgia corporation with its principal place of business in 

Pennsylvania. ILU is an Illinois corporation with its principal place of business in Pennsylvania.

WSLIC and ILU are a part of the Chubb Group of Companies.

6. Summers is a Delaware corporation with its principal place of business in Ohio.

7. The Association is a Florida corporation with its principal place of business in 

Florida.

COMMON ALLEGATIONS

The Latitude Condominium Project

8. Miami Riverfront Partners, LLC (“MRP”) was the developer of the Latitude 

Condominium, a luxury condominium project located in Miami, Florida. 

9. On 01/06/2005, MRP contracted with Suffolk Construction Company, Inc. 

(“Suffolk”) to serve as the general contractor for the project. 

10. On 02/11/2005, Suffolk subcontracted with Summers to provide and install a fire 

protection system in the condominium.

11. On 01/12/2011, MRP turned over control of the condominium to the Association. 

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The Chapter 558 Notice of Claim

12. On 09/30/2011, the Association sent Summers a Notice of Claim pursuant to Fla. 

Stat., Chapter 558. (See Notice of Claim, attached as Exhibit “A.”)

13. The Association explained this notice was “a formal demand that [Summers] 

correct all defects” in the condominium. 

14. In support, the notice referenced an expert report prepared by SEA, Ltd., dated 

09/21/2011. (See SEA Report, attached as Exhibit “B.”) According to the Association, this report 

“identif[ied] various construction defects, in reasonable detail, that have been discovered to exist 

to date.”

15. The SEA, Ltd. report, which was attached to the notice, further explained:

On March 23, 2011, SEA, Ltd. was asked to investigate a water leak that occurred 

on March 18, 2011, at the Latitude on the River Condominium[.] On that date, a 

section of fire sprinkler piping in a utility closet in Unit 2710 failed and leaked 

water. The stream of water cut through nearby drywall and distributed water into 

other spaces on the 27th floor. The leaked water caused damage to the contents 

and interior furnishings of this and other residences, as well as common areas in 

the building.

16. After completing its investigation, SEA, Ltd. reached the following conclusions:

□ The leaks occurred due to cracks in the CPVC pipe.

□ The cracks observed in the CPVC pipe are consistent with 

environmental stress cracking (ESC).

□ Fatty acids and phthalates were identified in wash samples taken from 

the inside pipe surface and from the fracture surface. Lesser amounts were 

detected in the scrapings from the sprinkler threads and in the sprinkler 

thread wash samples.

□ Fatty acids and phthalates are ingredients found in thread cutting oils 

and thread sealants. These chemicals have been identified as 

environmental stress cracking agents for CPVC.

□ The probable source for these chemical agents is the metallic piping 

connected to the CPVC piping.

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□ The cracks in the piping and subsequent leaks were the result of ESC 

caused by a contaminant or contaminants introduced on the inside of the 

piping at the time of installation.

The Underlying Action

17. On 07/19/2016, the Association filed a construction defect lawsuit against 

numerous parties involved in the construction of the condominium, including Summers, in a case 

styled Latitude on the River Condo Assn., Inc. v. Allied Tube & Conduit Corp., et al, bearing 

Case No. 16-18468 and pending in the Circuit Court of the Eleventh Judicial Circuit in and for 

Miami-Dade County, Florida (the “Underlying Action”).

18. In its Third Amended Class Action Complaint, the Association cites another 

incompatibility problem associated with CPVC material. (See Third Amended Complaint, 

attached as Exhibit “C.”) The Association alleges that “[a]s early as 2007, the Defendants each 

knew or should have known that certain CPVC material was incompatible with certain metallic 

materials, including metallic ABF and ABF II pipe[.]” (Id., ¶4.) Despite this, the Association 

alleges the condominium “was constructed with incompatible ABF and CPVC material.” (¶5.) 

19. The Association alleges Summers “was the fire sprinkler subcontractor that 

provided labor, services and materials” for the construction of the condominium, and that it “is 

responsible for the maintenance and inspections” of the fire sprinkler system. (¶79.)

20. In providing, labor, services, and material in the construction of the 

condominium, Summers installed “Allied ABF steel piping and CPVC pipes, fittings and

components manufactured by multiple manufacturers....” (¶80.)

21. The Association alleges “Summers was to install a functioning and operational Fire 

Protection System at the Project, free of incompatible components and, in connection therewith, was 

responsible for the contract administration of its work at the Latitude Condominium. More 

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specifically, Summers was responsible under its contract to procure materials and equipment which 

were compatible with one another, and which, when put to normal use, would not cause resulting 

damage to one another or to the common, limited common elements of the condominium or to

fixtures and personal property within the condominium units.” (¶102.)

22. The Association further alleges “CPVC is incompatible with ABF and numerous 

other materials and products, which causes physical damage to the CPVC.” (¶526.)

23. In Count 30 for breach of statutory warranty, the Association alleges Summers 

breached § 718.203(2), Fla. Stat., by constructing the condominium with “ABF and CPVC 

products that are incompatible with one another, which causes the CPVC components to leak and 

fail, the Fire Protection System not to function and causes damage and [environmental stress 

cracking] to the CPVC products.” (¶530.A.)

24. In Count 31 for negligence, the Association alleges Summers breached its duty to 

exercise reasonable care in the “design, construction, installation, oversight, maintenance and 

inspections” of the fire protection system, and also by concealing or mispresenting information 

concerning the risks “ABF pipes presented when combined with CPVC pipes[.] (¶535.)

25. In Count 32 for violation of § 553.84, Fla. Stat., the Association alleges Summers 

failed to comply with “local, state and national building codes and regulations.” (¶55.)1

THE CHUBB POLICIES

The WSLIC and ILU Primary Policies

26. WSLIC issued these primary commercial general liability policies to Summers:

□ Policy No. GLW778432 (Eff. 02/28/2004 – 02/28/2005);

□ Policy No. GLW786734 (Eff. 02/28/2005 – 09/07/2005);

 

1 Count 32 of the Association’s Third Amended Complaint begins with paragraph 51, as opposed 

to continuing with the numbering of the preceding paragraphs. 

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□ Policy No. G21981394001 (Eff. 09/07/2005 – 09/07/2006); and

□ Policy No. G22048338001 (Eff. 09/07/2006 – 09/07/2007).

27. ILU issued these primary commercial general liability policies to Summers:

□ Policy No. G27116498 001 (Eff. 01/31/2014 – 01/31/2015);

□ Policy No. G27116498 002 (Eff. 01/31/2015 – 01/31/2016); and

□ Policy No. G27116498 003 (Eff. 01/31/2016 – 01/31/2017).

28. The primary policies are referred to collectively as the “Chubb Primary Policies.”

(See Chubb Primary Policies, attached as Composite Exhibit “D.”)

29. The principal coverage form of the Chubb Primary Policies provides:

2

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”;

(2) The “bodily injury” or “property damage” occurs during 

the policy period; and

 

2

The WSLIC primary policies include principal Form CG 00 01 10 01, and the ILU primary 

policies include principal Form CG 00 01 04 013. The forms are not dissimilar for purposes 

here.

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(3) Prior to the policy period, no insured listed under Paragraph 

1. of Section II – Who Is An Insured and no “employee”

authorized by you to give or receive notice of an 

“occurrence” or claim, knew that the “bodily injury” or 

“property damage” had occurred, in whole or in part. If 

such a listed insured or authorized “employee” knew, prior 

to the policy period, that the “bodily injury” or “property 

damage” occurred, then any continuation, change or 

resumption of such “bodily injury” or “property damage”

during or after the policy period will be deemed to have 

been known prior to the policy period.

c. “Bodily injury” or “property damage” which occurs during the 

policy period and was not, prior to the policy period, known to 

have occurred by any insured listed under Paragraph 1. of Section 

II – Who Is An Insured or any “employee” authorized by you to 

give or receive notice of an “occurrence” or claim, includes any 

continuation, change or resumption of that “bodily injury” or 

“property damage” after the end of the policy period.

d. “Bodily injury” or “property damage” will be deemed to have been 

known to have occurred at the earliest time when any insured listed 

under Paragraph 1. of Section II – Who Is An Insured or any 

“employee” authorized by you to give or receive notice of an 

“occurrence” or claim:

(1) Reports all, or any part, of the “bodily injury” or “property 

damage” to us or any other insurer;

(2) Receives a written or verbal demand or claim for damages 

because of the “bodily injury” or “property damage”; or

(3) Becomes aware by any other means that “bodily injury” or 

“property damage” has occurred or has begun to occur. ...

2. Exclusions

This insurance does not apply to: 

a. Expected Or Intended Injury

“Bodily injury” or “property damage” expected or intended from 

the standpoint of the insured. This exclusion does not apply to 

“bodily injury” resulting from the use of reasonable force to 

protect persons or property. ...

j. Damage To Property

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“Property damage” to: ...

(1) Property you own, rent, or occupy, including any costs or 

expenses incurred by you, or any other person, organization 

or entity, for repair, replacement, enhancement, restoration 

or maintenance of such property for any reason, including 

prevention of injury to a person or damage to another’s 

property; ...

(5) That particular part of real property on which you 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

(6) That particular part of any property that must be restored, 

repaired or replaced because “your work” was incorrectly 

performed on it. ...

Paragraph (6) of this exclusion does not apply to “property 

damage” included in the “products-completed operations hazard”.

k. Damage To Your Product

“Property damage” to “your product” arising out of it or any part 

of it.

l. Damage To Your Work

“Property damage” to “your work” arising out of it or any part of it 

and included in the “products-completed operations hazard”.

This exclusion does not apply if the damaged work or the work out 

of which the damage arises was performed on your behalf by a 

subcontractor.

m. Damage To Impaired Property Or Property Not Physically 

Injured

“Property damage” to “impaired property” or property that has not 

been physically injured, arising out of:

(1) A defect, deficiency, inadequacy or dangerous condition in 

“your product” or “your work”; or

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(2) A delay or failure by you or anyone acting on your behalf 

to perform a contract or agreement in accordance with its 

terms.

This exclusion does not apply to the loss of use of other property 

arising out of sudden and accidental physical injury to “your 

product” or “your work” after it has been put to its intended use.

n. Recall Of Products, Work Or Impaired Property

Damages claimed for any loss, cost or expense incurred by you or 

others for the loss of use, withdrawal, recall, inspection, repair, 

replacement, adjustment, removal or disposal of:

(1) “Your product”;

(2) “Your work”; or

(3) “Impaired property”;

if such product, work, or property is withdrawn or recalled from 

the market or from use by any person or organization because of a 

known or suspected defect, deficiency, inadequacy or dangerous 

condition in it. ...

SECTION V – DEFINITIONS ...

13. “Occurrence” means an accident, including continuous or repeated 

exposure to substantially the same general harmful conditions. ...

17. “Property damage” means:

a. Physical injury 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. ...

21. “Your product”:

a. Means:

(1) Any goods or products, other than real property, 

manufactured, sold, handled, distributed or disposed of by:

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(a) You;

(b) Others trading under your name; or 

(c) A person or organization whose business or assets 

you have acquired; and

(2) Containers (other than vehicles), materials, parts or 

equipment furnished in connection with such goods or 

products.

b. Includes:

(1) Warranties or representations made at any time with respect 

to the fitness, quality, durability, performance or use of 

“your product”; and

(2) The providing of or failure to provide warnings or 

instructions.

c. Does not include vending machines or other property rented to or 

located for the use of others but not sold.

22. “Your work”:

a. Means:

(1) Work or operations performed by you or on your behalf; 

and

(2) Materials, parts or equipment furnished in connection with 

such work or operations.

b. Includes:

(1) Warranties or representations made at any time with respect 

to the fitness, quality, durability, performance or use of 

“your work”; and

(2) The providing of or failure to provide warnings or 

instructions. ...

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30. The Chubb Primary Policies include the following Fire Sprinkler and Suppression 

Systems Errors & Omissions Endorsement (Form MANA 00 17 03 99):3

FIRE SPRINKLER AND SUPPRESSION SYSTEMS 

ERRORS & OMISSIONS ...

THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: 

COMMERCIAL GENERAL LIABILITY COVERAGE FORM

1. Section I — Coverages

Insurance provided by this endorsement shall apply to:

Coverage A. “Bodily Injury” and “Property Damage” arising out of any 

negligent act, error or omission in the performance of “Your Work”

whether performed by the insureds individually or collectively.

Damages which arise out of a single act, error or omission or any series of 

related acts, errors or omissions whether committed by one or more 

insureds will be considered a single occurrence.

This insurance does not apply to:

“Bodily Injury”, “Property Damage”, “Personal Injury” or “Advertising 

Injury” arising out of the rendering or failure to render any professional 

services by an engineer or architect including:

1. The preparing, approving, or failing to prepare or approve maps, 

drawings, opinions, reports, surveys, change orders, designs or 

specifications; and

2. Supervisory, inspection or engineering services.

This exclusion does not apply to engineers or architects that are a named 

insured or an employee of the named insured, but only for acts arising out 

of the rendering or failure to render any professional services within the 

scope of their employment by you and only while performing professional 

services in conjunction with work you perform on fire suppression 

systems.

2. Section III — Limits of Insurance

 

3

Policy No. G27116498 001 (01/31/2014 to 01/31/2015) does not include this endorsement.

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Coverage provided by this endorsement does not increase the limits of 

insurance of the policy.

3. Section V — Definitions

“Your Work” is replaced by the following:

“Your Work” means:

A. Work or operations performed by you or on your behalf as a fire 

sprinkler and suppression systems contractor; and

B. Materials, parts or equipment furnished in connection with such 

work or operations. 

“Your Work” includes but is not limited to:

A. Warranties or representations made at any time with respect to the 

fitness, quality, durability, performance or use of “Your Work”;

B. The providing of or failure to provide warnings or instructions;

C. Designing, providing specifications for, fabricating, installing; and

D. Inspection of, repair of, or servicing or testing of fire sprinkler or 

fire suppression systems. ...

The WSLIC Umbrella Policies

31. WSLIC issued an umbrella liability policy to Summers, bearing Policy No. 

CUW774527 and effective from 02/28/2004 to 02/28/2005. This policy was renewed by Policy 

No. CUW785754, effective from 02/28/2005 to 09/07/2005.

32. The principal coverage form of the WSLIC umbrella policies provide:

INSURING AGREEMENTS

I. COVERAGE4

(1) We will pay on behalf of the “Insured” those sums in excess of the 

“Retained Limit” which the “Insured”, by reason of liability 

imposed by law, or assumed by the “Insured” under contract prior 

 

4

This provision was amended by an Amendatory Endorsement (Form M03 (3-94)).

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to the “Occurrence”, shall become legally obligated to pay as 

damages for: 

(A) “Bodily Injury” or “Property Damage” occurring during the 

policy period stated in Item 2 of the Declarations (“Policy 

Period”) and caused by an “occurrence”; ...

II. DEFENSE SETTLEMENT

(1) We shall have the right and duty to defend any “Claim” or “Suit”

seeking damages covered by the terms and conditions of this 

policy when:

(a) the applicable limits of insurance of the underlying 

insurance policies set forth in Schedule A and to be 

maintained by you in accordance with Condition M of this 

policy (the “Underlying Insurance”), plus the applicable 

limits of other insurance have been exhausted by payments; 

or

(b) Damages are sought for “Bodily Injury”, “Property 

Damage”, “Personal Injury”, or “Advertising Injury” which 

are not covered by “Underlying Insurance” or other 

insurance. ...

IV. DEFINITIONS ...

G. “Occurrence” means:

(1) An accident, including continuous or repeated exposure to 

substantially the same general harmful conditions, that 

results in “Bodily Injury” or “Property Damage” that is not 

expected or not intended by the “Insured”.

All damages that arise from continuous or repeated 

exposure to substantially the same general conditions are 

considered to arise from one “Occurrence”. ...

J. “Property Damage” means:

(1) physical injury 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

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(2) loss of use of tangible property that is not physically 

injured (all such loss being deemed to occur at the time of 

the “Occurrence” that caused it). ...

M. “Underlying Insurance” means the policies listed in Schedule A –

Schedule of Underlying Insurance and any other policies 

purchased or issued for any newly acquired or formed organization 

not more restrictive than the terms, conditions, endorsements, and 

limits of liability of the policies listed in Schedule A and to be 

maintained by you in accordance with Condition M of this policy.

N. “Your Product” means:

(1) any goods or products, other than real property, 

manufactured, sold, handled, distributed or disposed of by:

(a) you;

(b) others trading under your name; or

(c) a person or organization whose business or assets 

you have acquired; and 

(2) containers (other than vehicles), materials, parts or 

equipment furnished in connection with such goods or 

products.

“Your Product” includes warranties or representations made at any 

time with respect to the fitness, quality, durability, performance or 

use of items described in subparagraph (1) or (2) above and the 

providing of or failure to provide warnings or instructions.

“Your Product” does not include vending machines or other 

property rented to or located for the use of others, but not sold.

O. “Your Work” means:

(1) work or operations performed by you or on your behalf; 

and

(2) materials, parts or equipment furnished in connection with 

such work or operations.

“Your Work” includes warranties or representations made at any 

time with respect to the fitness, quality, durability, performance or 

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use of items described in subparagraph (1) or (2) above and the 

providing of or failure to provide warnings or instructions. ...

EXCLUSIONS

This policy does not apply to:

A. “Bodily Injury” or “Property Damage” expected or intended from 

the standpoint of the “Insured”.

This Exclusion A does not apply to “Bodily Injury” resulting from 

the use of reasonable force to protect persons or property. ...

D. “Property Damage” to5

1. Any property owned by the “Insured”;

2. Personal property in the care, custody and control of the 

“Insured”;

3. That particular part of real property on which the “insured”

or any contractors or subcontractors working directly or 

indirectly on the “insured’s” behalf are performing “Your 

Work”, if the “property damage” arises out of “Your 

Work”. ...

E. “Property Damage” to “Your Product”, arising out of it or any part 

of it.

F. “Property Damage” to “Your Work” arising out of it or any part of 

it and included in the “Products/Completed Operations Hazard”.

This Exclusion F does not apply if the damaged work or the work 

out of which the damage arises was performed on your behalf by a 

subcontractor. 

G. “Property Damage” to “Impaired Property” or property that has not 

been physically injured arising out of:

(1) a defect, deficiency, inadequacy or dangerous condition in

“Your Product” or “Your Work”; or 

 

5

This exclusion was amended by a Contractors Endorsement (Form M06 (10-90)).

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(2) a delay or failure by you or anyone acting on your behalf to 

perform a contract or agreement in accordance with its 

terms.

This Exclusion G does not apply to the loss of use of other 

property arising out of sudden and accidental physical injury to 

“Your Product” or “Your Work” after it has been put to its 

intended use. ...

33. The Schedule of Underlying Insurance for each WSLIC umbrella policy identifies 

the corresponding WSLIC primary policy.

The ILU Excess Policy

34. ILU issued an excess liability policy to Summers, bearing Policy No. G27115299 

001 and effective from 01/31/2014 to 01/31/2015. The principal coverage form, Form XSC27266 (05/09), provides in pertinent part:

SECTION I. INSURING AGREEMENTS

A. COVERAGE

We will pay, on your behalf, “loss” arising out of an “occurrence” but 

only after all “underlying insurance” has been exhausted by the payment 

of the limits of such insurance for covered injury or damage. If 

“underlying insurance” does not pay a “loss” for reasons other than the 

exhaustion of an aggregate limit of insurance, then we will not pay such 

“loss”.

The definitions, terms, conditions, limitations and exclusions of the first 

policy of “underlying insurance” apply to this coverage unless they are 

inconsistent with provisions of this policy or relate to premium, 

subrogation, any obligation to defend, the payment of expenses, amounts 

of limits of insurance, cancellation or any renewal agreement.6 ...

35. The 2014/2015 primary ILU policy is identified as the underlying commercial 

general liability policy in the Schedule of Underlying Insurance.

 

6

This provision was modified by a Insuring Agreement Coverage Section Amendment 

endorsement (Form XSC-32991 (02/11)).

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36. The WSLIC umbrella policies and the ILU excess policy shall collectively be 

referred to as the “Chubb Umbrella/ Excess Policies.” (See Chubb Umbrella/Excess Policies, 

attached as Composite Exhibit “E.”)

37. The Chubb Primary Policies and the Chubb Umbrella/ Excess Policies shall 

collectively be referred to as the “Policies.”

This Declaratory Action

38. Chubb is currently defending Summers against the Underlying Action under 

a complete reservation of rights, including that there is no coverage under the Policies and that 

Chubb may seek a judicial determination regarding its position. Summers accepted Chubb’s 

reservation of rights.

39. Summers has not, however, conceded Chubb’s position that there is no coverage. 

To the contrary, Summers is requesting defense and indemnity without reservation. Similarly, 

the Association does not concede Chubb’s position that there is no coverage. To the contrary, the 

Association believes it is entitled to coverage.

40. Pursuant to the guidance provided by the Florida Supreme Court in Higgins v. 

State Farm Fire, 894 So. 2d 5 (Fla. 2004), it is in the best interests of not only Chubb, but also 

Summers and the Association, if there is a judicial determination that Summers is not entitled 

to coverage under the Policies. To the extent that Chubb prevails on the duty to defend, as a 

matter of law, it will also have no duty to indemnify. Such a determination, particularly before 

there is a verdict in the Underlying Action, could help promote settlement.

41. To the extent that Summers or the Association would like to reverse course and 

concede with Chubb’s position that there is no coverage, Chubb will drop that entity as a 

defendant.

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COUNT I – NO COVERAGE UNDER THE WSLIC POLICIES BECAUSE ANY 

PROPERTY DAMAGE OCCURRED OUTSIDE THE POLICY PERIODS

42. Chubb incorporates paragraphs 1 through 41.

43. The primary and umbrella WSLIC policies only provide coverage for property 

damage that occurs during the policy period.

44. The primary WSLIC policies provide coverage from 02/28/2004 to 09/07/2007, 

and the umbrella WSLIC policies provide coverage from 02/28/2004 to 09/07/2005.

45. To the extent property damage occurred after the WSLIC policies lapsed, there 

would be no coverage under the WSLIC policies. 

46. Chubb accordingly has no duty to defend or indemnify in the Underlying Action 

under the WSLIC policies.

COUNT II – NO COVERAGE UNDER THE ILU POLICIES

BECAUSE OF PRIOR KNOWLEDGE

47. Chubb incorporates paragraphs 1 through 41.

48. The primary ILU policies are triggered only if “[p]rior to the policy period, no 

insured ... knew that the ... ‘property damage’ had occurred, in whole or in part.”

49. The ILU primary policies provide coverage from 01/31/2014 to 01/31/2017.

50. The excess ILU policy, in effect from 01/31/2014 to 01/31/2015, follows the form 

of the corresponding 2014/2015 primary ILU policy.

51. Here, based on the Chapter 558 Notice and other evidence, Summers had 

knowledge of damage in the condominium as early as 09/30/2011.

52. Consequently, Chubb has no duty to defend or indemnify in the Underlying 

Action under the ILU Policies.

COUNT III – NO COVERAGE UNDER ALL THE POLICIES 

FOR FAULTY WORKMANSHIP

Case 1:20-cv-21770-KMW Document 1 Entered on FLSD Docket 04/28/2020 Page 18 of 22
Page 19 of 20

53. Chubb incorporates paragraphs 1 through 41.

54. The Policies only provide coverage for “property damage” caused by an 

“occurrence.”

55. The Association alleges Summers breached its duty to exercise reasonable care 

in the “design, construction, installation, oversight, maintenance and inspections” of the fire 

protection system. (Third Am. Compl., ¶535.)

56. Faulty workmanship, however, does not constitute “property damage” caused by 

an “occurrence.”

57. Chubb accordingly has no duty to defend or indemnify in the Underlying Action 

under the Policies.

COUNT IV – NO COVERAGE UNDER ALL THE

POLICIES BASED ON THE EXPECTED OR INTENDED EXCLUSION

58. Chubb incorporates paragraphs 1 through 41.

59. The Polices bar coverage for property damage “expected or intended from the 

standpoint of the insured.”

60. The Association alleges the defendants “knew or should have known that certain 

CPVC material was incompatible with certain metallic materials, including metallic ABF and 

ABF II pipe[.]” (Third Am. Compl., ¶4.)

61. To the extent Summers expected or intended property damage, the Expected or 

Intended Exclusion precludes coverage and Chubb accordingly has no duty to defend or 

indemnify in the Underlying Action under the Policies. 

COUNT V – NO COVERAGE UNDER ALL THE POLICIES BASED ON 

THE BUSINESS RISK EXCLUSIONS

62. Chubb incorporates paragraphs 1 through 41.

Case 1:20-cv-21770-KMW Document 1 Entered on FLSD Docket 04/28/2020 Page 19 of 22
Page 20 of 20

63. The Policies contain “Business Risk” exclusions that preclude coverage for 

damages sought for damage to Summers’s product, Summers’s work, property that must be 

restored, repaired or replaced because Summers incorrectly performed work on it, and property 

on which Summers is performing operations if the damage arises out of those operations.

64. To the extent the Underlying Action seeks damages for any of these items, the 

Business Risk Exclusions preclude coverage and Chubb accordingly has no duty to defend or 

indemnify in the Underlying Action under the Policies.

REQUESTED RELIEF

WHEREFORE, Chubb respectfully requests this Court:

a. Take jurisdiction and adjudicate the rights of the parties under the Policies;

b. Declare that Chubb has no obligation to defend Summers in the Underlying 

Action under the Policies;

c. Declare that because Chubb has no obligation to defend Summers in the 

Underlying Action under the Policies, it also has no duty to indemnify;

d. Award Chubb all costs it incurred to prosecute this action; and 

e. All such other relief as the Court deems just and proper under the circumstances.

Respectfully submitted,

/s/SINA BAHADORAN 

SINA BAHADORAN 

Florida Bar No. 523364

sina.bahadoran@clydeco.us

JUNAID N. SAVANI

Florida Bar No. 88816

junaid.savani@clydeco.us

Clyde & Co US LLP

1221 Brickell Avenue

Suite 1600

Miami, Florida 33131

T: 305.446.2646

Case 1:20-cv-21770-KMW Document 1 Entered on FLSD Docket 04/28/2020 Page 20 of 22
JS 44 (Rev. 09/19) CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as

provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the

purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF 

THE TRACT OF LAND INVOLVED.

 

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION(Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only) and One Box for Defendant) 

’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF

Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4

 of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5

Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.

CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act

’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC 

’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))

’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment

’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust

 & Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking

’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce

’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation

 Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and

 (Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations

’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit

 of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) (15 USC 1681 or 1692)

’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) ’ 485 Telephone Consumer 

’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) Protection Act

’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 490 Cable/Sat TV

’ 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 850 Securities/Commodities/

’ 362 Personal Injury - Product Liability ’ 751 Family and Medical Exchange

 Medical Malpractice Leave Act ’ 890 Other Statutory Actions

 REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS ’ 891 Agricultural Acts

’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 893 Environmental Matters

’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) ’ 895 Freedom of Information

’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party Act

’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 ’ 896 Arbitration

’ 245 Tort Product Liability Accommodations ’ 530 General ’ 899 Administrative Procedure

’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION Act/Review or Appeal of

 Employment Other: ’ 462 Naturalization Application Agency Decision

’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration ’ 950 Constitutionality of

 Other ’ 550 Civil Rights Actions State Statutes

’ 448 Education ’ 555 Prison Condition

’ 560 Civil Detainee -

 Conditions of 

 Confinement

V. ORIGIN (Place an “X” in One Box Only)

’ 1 Original

Proceeding

’ 2 Removed from

State Court

’ 3 Remanded from

Appellate Court

’ 4 Reinstated or

Reopened

’ 5 Transferred from

Another District

(specify)

’ 6 Multidistrict

Litigation -

Transfer

’ 8 Multidistrict

 Litigation - 

 Direct File

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED IN

 COMPLAINT:

’ CHECK IF THIS IS A CLASS ACTION

UNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:

JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)

 IF ANY (See instructions):

JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

WESTCHESTER SURPLUS LINES INSURANCE COMPANY; ILLINOIS 

UNION INSURANCE COMPANY

SUMMERS FIRE SPRINKLERS, INC.; LATITUDE ON THE RIVER 

CONDOMINIUM ASSOCIATION, INC. Fulton County, Georgia Medina County, Ohio

Sina Bahadoran, Esq., Clyde & Co, 1221 Brickell Avenue, #1600, Miami, 

Fl 33196, Ph: 305-446-2646

28 U.S.C. § 2201 Declaratory Judgment 75,000.00 04/28/2020 s/Sina Bahadoran

Case 1:20-cv-21770-KMW Document 1 Entered on FLSD Docket 04/28/2020 Page 21 of 22
JS 44 Reverse (Rev. 09/19)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as

required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is

required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of

Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use 

only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and 

then the official, giving both name and title.

 (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the 

time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land 

condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

 (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting

in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" 

in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment 

to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes 

precedence, and box 1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the 

citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity

cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this

section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code 

that is most applicable. Click here for: Nature of Suit Code Descriptions. 

V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. 

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing 

date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or 

multidistrict litigation transfers.

Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. 

Section 1407. 

Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. 

PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to 

changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional 

statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket 

numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.

Case 1:20-cv-21770-KMW Document 1 Entered on FLSD Docket 04/28/2020 Page 22 of 22