[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-10906

________________________

D.C. Docket No. 2:11-cv-00215-MEF-TFM

PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE 

COMPANY, 

 Plaintiff-Counter Defendant-Appellee,

versus

HOWARD SNIDER, 

PAM SNIDER, 

 

Defendants-Counter DefendantsCross ClaimantsCounter Claimants-Appellants,

JEFF BEALE HOMES,

JEFF BEALE,

 

Defendants-Counter ClaimantsCross Defendants.

 

________________________

Appeal from the United States District Court

for the Middle District of Alabama

________________________

(April 7, 2015)

Case: 14-10906 Date Filed: 04/07/2015 Page: 1 of 11 
2

Before MARCUS, JILL PRYOR and EBEL,

* Circuit Judges.

PER CURIAM: 

Dr. and Mrs. Howard Snider appeal the district court’s declaratory judgment 

that insurer Pennsylvania National Mutual Casualty Insurance Company (“Penn 

National”) has no duty to indemnify its insured, Jeff Beale, with respect to the 

Sniders’ $700,000 judgment against him. After careful review and oral argument, 

we affirm. 

I.

The Sniders hired Beale, through his sole proprietorship Jeff Beale Homes

(collectively “Beale”), to build their home in Pike Road, Alabama. According to 

the Sniders, Beale agreed to complete the construction in six to eight months for a 

total price of $650,000, but the work did not proceed as the parties had planned. 

After more than a year of work, the project was over budget and incomplete. 

Shortly thereafter, Beale walked off the job and did not return, forcing the Sniders 

to hire a new builder to complete the construction. When the Sniders finally 

moved into the home, they discovered problems with Beale’s work.

 

* Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by 

designation.

Case: 14-10906 Date Filed: 04/07/2015 Page: 2 of 11 
3

The Sniders sued Beale in Alabama state court, asserting breach of contract 

and breach of implied warranty claims. The Sniders pursued two theories of 

recovery in the state court action. First, they claimed that Beale breached their oral 

contract because, although the Sniders paid him the entire amount he was owed, he 

failed to complete the construction on their home. Second, they claimed that Beale 

breached their oral contract and an implied warranty under Alabama law because

the work he did perform was not done properly. Beale had a commercial general 

liability policy (the “Policy”) through Penn National, and he informed the insurer 

of the Sniders’ claims. Penn National provided Beale with a defense under a 

reservation of rights. 

The Sniders’ claims against Beale proceeded to trial in state court. At trial, 

the Sniders sought damages for the following injuries: (1) mental anguish, (2) 

emotional distress, (3) the cost of completing the work that Beale left unfinished

but for which he was paid, (4) the cost of repairing Beale’s faulty work, (5) the 

cost of repairing property damage caused by water intrusion resulting from Beale’s 

faulty work, and (6) diminution in value of the home. The Sniders sought a total of 

$1.25 million in damages for the cost of completing the work Beale failed to

perform, repairing Beale’s faulty work and conditions created by Beale’s faulty 

Case: 14-10906 Date Filed: 04/07/2015 Page: 3 of 11 
4

work, and the diminution in value of their home,

1 as well as unspecified damages 

for their mental anguish and emotional distress. 

Ultimately, the jury awarded the Sniders $700,000. The jury’s verdict form 

follows:

The verdict form reflects that the jury found in the Sniders’ favor on both their

breach of contract and implied warranty claims,

2 but the form does not indicate 

what portion of the award was attributable to either claim. Although the jury 

indicated that it was awarding damages for mental anguish and emotional distress, 

the verdict form did not identify the amount of damages awarded for these injuries, 

for which cause of action they were awarded, or whether the damages award

included compensation for any of the Sniders’ other injuries.

 

1 The Sniders sought $450,000 for the cost of completing work and repairs and $800,000 

for the diminution in value.

2 The verdict form also indicates that the jury found in favor of the Sniders on their 

“claims” for emotional distress and mental anguish. Emotional distress and mental anguish are 

not causes of action but rather types of injury. 

Case: 14-10906 Date Filed: 04/07/2015 Page: 4 of 11 
5

While the Sniders’ lawsuit against Beale was still pending, Penn National 

filed this action seeking a declaration that it had no duty indemnify Beale under the 

Policy with respect to the Sniders’ claims. The Sniders brought a counterclaim 

against Penn National and a crossclaim against Beale to recover the $700,000 

judgment. Penn National and the Sniders each moved for summary judgment. The 

district court granted Penn National’s motion, ruling that Penn National had no 

duty to indemnify, and denied the Sniders’ motion. This is the Sniders’ appeal.

II.

We review a district court’s grant of summary judgment de novo, “viewing 

all the evidence, and drawing all reasonable factual inferences, in favor of the 

nonmoving party.” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321 

(11th Cir. 2014). The interpretation of a provision in an insurance contract “is a 

question of law, also reviewed de novo.” Id. Summary judgment is appropriate “if 

the movant shows that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 

parties agree that in this diversity action Alabama law governs our interpretation of 

the Policy. 

III.

The terms of the Policy set forth the scope of Penn National’s duty to 

indemnify Beale. The Policy provides that Penn National will pay only “those 

Case: 14-10906 Date Filed: 04/07/2015 Page: 5 of 11 
6

sums that the insured becomes legally obligated to pay as damages because of 

‘bodily injury’ or ‘property damage’ to which this insurance applies.” Policy at 

§ I.A.1.a.3

 The Policy further limits coverage to those instances where the “‘bodily 

injury’ or ‘property damage’ is caused by an ‘occurrence’ . . . .” Id. at § I.A.1.b. 

Penn National argues that there is no coverage in this case because the 

Sniders’ bodily injuries and property damage did not arise out of an occurrence. 

The Policy defines an “occurrence” as “an accident, including continuous or 

repeated exposure to substantially the same general harmful conditions.” Id. at § 

V.13. The Supreme Court of Alabama has interpreted “accident” in the insurance 

context to mean “[a]n unintended and unforeseen injurious occurrence; something 

that does not occur in the usual course of events or that could [not] be reasonably 

anticipated.” Hartford Cas. Ins. Co. v. Merchs. & Farmers Bank, 928 So. 2d 1006, 

1011 (Ala. 2005) (internal quotation marks omitted). Put differently, an accident 

refers to “something unforeseen, unexpected, or unusual.” Id. (internal quotation 

marks omitted). When the insured “at all times act[s] in a deliberate and 

purposeful manner,” his conduct does not constitute an accident or occurrence. Id.

at 1013 (internal quotation marks omitted).

As the parties seeking coverage under the Policy, the Sniders bear the 

burden of proving that coverage exists. See Ala. Hosp. Ass’n Trust v. Mut. 

 

3 Under an endorsement to the Policy, the definition of bodily injury includes mental 

anguish. See Extended Coverage Endorsement General Liability § II.

Case: 14-10906 Date Filed: 04/07/2015 Page: 6 of 11 
7

Assurance Soc’y of Ala., 538 So. 2d 1209, 1216 (Ala. 1989). Thus, they must show 

that an accident caused the injuries for which they were awarded damages. At 

trial, the Sniders advanced two independent theories of liability against Beale: (1) 

he breached the contract by abandoning the job, and (2) he breached an implied 

warranty in the contract because he performed faulty work.

4

 We now consider 

whether Beale’s conduct under each theory was intentional or accidental to 

determine whether injuries arising out of the conduct are covered under the Policy. 

The Policy plainly does not cover damages arising out of Beale abandoning 

the job. The Sniders admit that in the state court trial they argued Beale breached 

the contract by walking off the job and sought damages for this breach. Beale’s 

abandonment of the job was a deliberate, purposeful act, not an accident, and 

damages arising out of this conduct are not covered under the Policy. See Shane 

Traylor Cabinetmaker, L.L.C. v. Am. Res. Ins. Co., 126 So. 3d 163, 170 (Ala. 

2013) (holding that there was no occurrence when the claim arose not from the 

contractor’s defective work but from, among other things, the contractor 

abandoning the job). 

This alone is sufficient to conclude that there is no coverage under the 

Policy. We cannot discern from the verdict form the amount of damages the jury 

 

4 Under Alabama law, there is an implied warranty that a contractor will “‘use reasonable 

skill in fulfilling [his] contractual obligations.’” Blackmon v. Powell, 132 So. 3d 1, 5 (Ala. 2013) 

(quoting Turner v. Westhampton Court, L.L.C., 903 So. 2d 82, 93 (Ala. 2004)). 

Case: 14-10906 Date Filed: 04/07/2015 Page: 7 of 11 
8

awarded the Sniders for their injuries caused by Beale’s abandonment of the job, as 

opposed to injuries caused by Beale’s faulty work.

5

 Alabama courts have held that 

when (1) the injured party in the underlying action pursues two theories of liability, 

(2) under one of the theories there is no coverage under the policy, and (3) the jury 

returned a general verdict, then it is “impossible” to establish coverage under the 

policy. Ala. Hosp. Ass’n Trust, 538 So. 2d at 1216.

The Sniders try to circumvent this problem by arguing that the verdict form 

shows that the jury awarded them damages only for emotional distress and mental 

anguish caused by Beale’s faulty work.

6

 But the verdict form does not support the 

Sniders’ argument. First, the verdict form indicates that the jury found in the 

Sniders’ favor on the breach of contract claim, which would include the Sniders’ 

allegations that Beale breached the contract by walking off the job. Second, the 

verdict form does not show that all of the damages the jury awarded were for 

mental anguish or emotional distress. The verdict form shows, at most, that some 

 

5 The parties could have used a special verdict form to answer such questions, but they

did not. See Ala. Hosp. Ass’n Trust, 538 So. 2d at 1216. During deliberations, the jury asked the 

trial court whether it was necessary to allocate its award among the claims. Neither party 

requested that the court instruct the jury to provide such an itemization.

6 Under Alabama law, a party can recover an award for mental anguish on a breach of 

contract claim where “the contractual duty or obligation is so coupled with matters of mental 

concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of 

that duty will necessarily or reasonably result in mental anguish or suffering.” B & M Homes, 

Inc. v. Hogan, 376 So. 2d 667, 671 (Ala. 1979) (internal quotation marks omitted). Alabama law 

has recognized that “contracts dealing with residences” fall into this special category. Id. 

Case: 14-10906 Date Filed: 04/07/2015 Page: 8 of 11 
9

unidentified portion of the $700,000 verdict was to compensate the Sniders for 

their emotional distress and mental anguish. 

In their briefs, the Sniders attempt to show that some of their injuries that 

were the result of Beale’s faulty work were caused by accidental, not intentional, 

conduct. Under Alabama law, when a contractor performs faulty work, generally 

his conduct is not considered an accident. See Owners Ins. Co. v. Jim Carr 

Homebuilder, LLC, No. 1120764, So. 3d , 2014 WL 1270629, at *6 (Ala. 

Mar. 28, 2014). When the contractor’s faulty work creates a condition that in turn 

damages property, however, the conduct is considered an accident under Alabama 

law. See id. In the underlying trial, the Sniders sought damages for repairing 

Beale’s faulty work,7 which the Policy does not cover, and damages for repairing 

conditions created by Beale’s faulty work,8 which the Policy does cover. Even 

accepting that the Policy does cover damages arising from conditions created by 

faulty work, the Sniders still have not carried their burden of proof. They offer no 

compelling explanation of how they can establish coverage given that they pursued 

two different theories of liability at trial in the underlying action, the Policy does 

not cover damages arising out of Beale abandoning the job, and the jury returned a 

 

7 For example, the Sniders sought damages for the cost of replacing a floor that Beale did 

not install properly.

8 For example, the Sniders sought damages for the cost of repairing water damage inside 

the house that resulted from a condition created by Beale’s faulty work.

Case: 14-10906 Date Filed: 04/07/2015 Page: 9 of 11 
10

general verdict that did not identify the amount of damages being awarded under 

each theory. 

The Sniders alternatively argue that there is coverage under the provision of 

the Policy covering products-completed operation hazards (“PCOH”). They 

contend that this provision of the Policy covers claims for bodily injury and 

property damage even when the injury was not the result of an accident and thus 

not caused by an occurrence. The Policy’s declaration page shows a $2 million 

“Products-Completed Operations Aggregate Limit.” This limit “is the most [Penn 

National] will pay under Coverage A for damages because of ‘bodily injury’ and 

‘property damage’ included in the ‘products-completed operations hazard.’” 

Policy at § III.3. The PCOH covers “all ‘bodily injury’ and ‘property damage’ . . . 

arising out of ‘your product’ or ‘your work’” when the insured has completed its

work or abandoned the job. Id. at § V.16.a. The Supreme Court of Alabama has 

explained that the purpose of PCOH coverage is to insure bodily injury or property 

damage that occurs after the insured has completed work. Jim Carr, 2014 WL 

1270629, at *7-*8.

The PCOH provision does not cover the Sniders’ injuries. The Policy 

explains that the “Products-Completed Operations Aggregate Limit,” which 

provides coverage for bodily injury or property damage included in the PCOH, is

“the most [Penn National] will pay under Coverage A.” Policy at § III.3. 

Case: 14-10906 Date Filed: 04/07/2015 Page: 10 of 11 
11

Coverage A, in turn, limits coverage to bodily injury and property damage “caused 

by an ‘occurrence.’” Id. at § I.A.1.b. The Sniders point out that the Alabama 

Supreme Court held in Jim Carr that there was coverage under the PCOH. But, in 

Jim Carr, the homeowners’ injuries were caused by an occurrence. See 2014 WL 

1270629, at *8. Nothing in Jim Carr supports the Sniders’ argument that the

PCOH covers injuries not caused by an occurrence. Because the Sniders cannot 

show that the jury’s entire award was for damages caused by an occurrence, they 

cannot show that there is coverage under the PCOH.

IV.

The district court correctly concluded that the Sniders cannot prove coverage 

under the Policy.

9

 Accordingly, we affirm the judgment of the district court.

AFFIRMED.

 

9 Penn National raises a number of other arguments that there is no coverage, but, having

concluded the Sniders’ claim is not covered, we need not address them.

Case: 14-10906 Date Filed: 04/07/2015 Page: 11 of 11