[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-11639

________________________

D.C. Docket No. 3:12-cv-00890-MMH-PDB

HUGH A. CARITHERS, Individual, 

KATHERINE S. CARITHERS, Individual, 

 Plaintiffs - Appellees,

versus

MID-CONTINENT CASUALTY COMPANY, 

a corporation, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(April 7, 2015)

Before ED CARNES, Chief Judge, COX, Circuit Judge, and ROYAL,

* District 

Judge.

 * Honorable C. Ashley Royal, United States District Judge for the Middle District of Georgia, 

sitting by designation.

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COX, Circuit Judge:

This is an insurance dispute, in a diversity case, arising out of defects in the 

construction of a house for the Plaintiffs, Hugh and Katherine Carithers (“the 

Carithers”). Florida law applies. The policy at issue is a post-1986 commercial 

general liability policy with products-completed operations coverage issued to 

general contractor Cronk Duch Miller & Associates, Inc. (“Cronk Duch”). Cronk 

Duch assigned the rights under the policy to the Carithers. We address a number 

of coverage issues related to damage to a completed project caused by the 

defective work of sub-contractors. We affirm in part and reverse in part.

I. Facts and Procedural History

After discovering a number of defects in their home, the Carithers filed suit 

against their homebuilder, Cronk Duch, in state court (“the underlying action”). 

Cronk Duch’s insurance company, Mid-Continent Casualty Company (“MidContinent”), refused to defend the action on behalf of Cronk Duch. The Carithers

and Cronk Duch then entered into a consent judgment in the underlying action for 

approximately $90,000, in favor of the Carithers. The consent judgment also 

assigned to the Carithers Cronk Duch’s right to collect the judgment amount from 

Mid-Continent. The Carithers then filed this action against Mid-Continent in state 

court to collect from Mid-Continent on the settlement. Mid-Continent removed the 

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case to the Middle District of Florida. The Carithers are the Plaintiffs in this action 

due to Cronk Duch’s assignment of its rights to them.

Mid-Continent issued four insurance policies to Cronk Duch. The first 

policy provided coverage from March 9, 2005, to March 9, 2006, the second from 

March 9, 2006, to March 9, 2007, the third from March 9, 2007, to March 9, 2008, 

and the fourth from March 9, 2008 to October 6, 2008. The policies read, in 

relevant part,1

SECTION 1 – 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 . . . .

b. This insurance applies to “bodily injury” and “property 

damage” only if . . . .

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

the policy period . . . .

2. Exclusions

This insurance does not apply to . . . .

j. Damage To Property

“Property damage” to . . . .

(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 these operations; or

 1 Mid-Continent contends that the relevant provisions are the same in each policy. Because the 

district court determined that the March 9, 2005, to March 9, 2006, policy applies, and we agree 

with this determination, we quote only this policy. 

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(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” . . . .

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 sub-contractor . . . .

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 . . . .

This insurance does not apply to:

1. “Bodily injury”, “property damage”, “personal or advertising 

injury” or “medical payments” arising out of, resulting from, 

caused by, contributed to, attributed to, or in any way related to 

any fungus, mildew, mold or resulting allergens . . . .

(Insurance Policy # 1, DE 69-4 at 16–29, 42).

The parties filed cross-motions for summary judgment on the issue of MidContinent’s duty to defend Cronk Duch in the underlying action. The complaint in 

the underlying action alleged that the defects could not have been discovered until 

2010. Since Mid-Continent had only agreed to insure Cronk Duch until 2008, 

Mid-Continent argued, it was not liable for damages that could not have been 

discovered by reasonable inspection before 2010. On the duty to defend issue, the 

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district court granted summary judgment for the Carithers and denied summary 

judgment for Mid-Continent. In reaching this conclusion, the district court held 

that the proper “trigger” for determining if property damage “occurred” during the 

policy period is the date of the actual damage. The district court rejected MidContinent’s argument that property damage occurs when it is discovered, or, 

alternatively, when it could be discovered by reasonable inspection.

The coverage issue was decided following a bench trial. During the trial, the 

Carithers’s expert testified that the damage to the Carithers’s garage was the 

product of wood rot. This expert also testified that wood rot is usually caused by 

fungus. After this, Mid-Continent asked for leave to amend its answer to assert a 

defense based on an exclusion in the policy for damage caused by fungus and 

mold. The district judge denied the motion, holding that Mid-Continent had 

impermissibly delayed in raising this issue and that an amendment was not 

permissible under Fla. Stat. § 627.426(2)(a), which, according to the district court,

requires thirty days written notice if an insurer is going to deny coverage based on 

a coverage defense.

Following trial, the court found that the damage occurred in 2005, and, 

therefore, that the 2005–2006 policy applied. Next, applying the 2005–2006 

policy, the court concluded that the policy’s coverage for “property damage” does 

not include the defective work of a sub-contractor, but does include damage to 

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other property caused by the defective work of a sub-contractor. Based on this 

conclusion, the court determined: (1) that a faulty electrical system caused property 

damage to the electrical appliances; (2) that the incorrect application of exterior 

brick coating caused property damage to the brick; (3) that the use of inadequate 

adhesive and an inadequate base in the installation of tile caused property damage 

to the tile; and (4) that the incorrect construction of a balcony, which allowed water 

to seep into the ceilings and walls of the garage leading to wood rot, caused 

property damage to the garage.

The court concluded that Mid-Continent was liable for all of the damages 

awarded in the state court judgment. This included the cost of repairing the 

balcony itself, which, the district judge determined, had to be replaced in order to 

repair the property damage to the garage. In other words, though the balcony was 

not property damage (because it was the defective work of a sub-contractor), the 

balcony was part of the cost of repairing the garage, which was property damage. 

Similarly, the damage award included the cost of replacing the defective mud base, 

apparently because it needed to be replaced in order to replace the tiles, though the 

district court made no such finding.

2

II. Contentions on Appeal

 2 The district court did not expressly award damages for the mud base. But the parties agree, 

based on the amount of damages, that the district court awarded these damages.

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Mid-Continent presents three contentions on this appeal. First, MidContinent contends that it was entitled to summary judgment on the issue of the

duty to defend Cronk Duch in the underlying action. And, Mid-Continent 

contends, if there was no duty to defend, there is no duty to indemnify Cronk Duch 

for the damages awarded in the underlying action. Second, Mid-Continent

contends that the court erred by refusing to grant it leave to amend its answer to 

include a coverage defense based on the fungus and mold exclusion in the policy. 

Third, Mid-Continent contends that the court improperly awarded damages for the 

brick, the tiles, the mud base, and the balcony.

3

III. Standard of Review

We review de novo the grant of summary judgment and the denial of 

summary judgment.

4 Cagle v. Bruner, 112 F.3d 1510, 1514 (11th Cir. 1997). We 

review a district court’s denial of a motion for leave to amend the pleadings at trial 

for abuse of discretion. Borden, Inc. v. Florida E. Coast Ry. Co., 772 F.2d 750, 758 

(11th Cir. 1985). Following a bench trial, we review legal conclusions de novo 

 3 Mid-Continent does not challenge the part of the district court’s damages calculation that was 

based on damage to the Carithers’s electrical appliances caused by the defectively installed 

electrical system. For that reason, we will not address those particular damages in this opinion 

beyond noting that the district court’s judgment on that point stands.

4 The parties dispute whether we should review the duty to defend issue as determined at the 

summary judgment stage, or whether we should review the duty to defend issue based on the 

facts established at trial. But, as discussed below, whether there was a duty to defend in this case 

is determined based on the allegations in the complaint in the underlying action.

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and findings of fact for clear error. Mitchell v. Hillsborough Cnty., 468 F.3d 1276, 

1282 (11th Cir. 2006).

IV. Discussion

a. Summary Judgment on the Duty to Defend

We determine whether Mid-Continent had a duty to defend Cronk Duch in 

the underlying action using only the allegations in the Carithers’s complaint in the 

underlying action. Jones v. Florida Ins. Guar. Ass’n, Inc., 908 So.2d 435, 442-43

(Fla. 2005).

Mid-Continent contends that this issue turns on what the proper trigger is for 

determining whether property damage “occurs” during the policy period. MidContinent contends that property damage occurs when it manifests itself. The 

parties call this the “manifestation” trigger. Mid-Continent presents two versions 

of the manifestation trigger: (1) that damage occurs when it is discoverable by 

reasonable inspection; or (2) that damage occurs when it is actually discovered. 

The Carithers contend that property damage occurs when the property is damaged. 

The parties call this the “injury-in-fact” trigger.

The complaint in the underlying action alleged that the damages could not 

have been discovered by reasonable inspection until 2010. There was no policy in 

effect, however, after 2008. Thus, Mid-Continent contends, if we apply the 

manifestation trigger, there was no duty to defend Cronk Duch in the underlying 

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action because the property damage that gave rise to the underlying action did not 

occur during any of the four policy periods. Mid-Continent does not assert any 

other basis for refusing to defend Cronk Duch in the underlying action. The 

Carithers respond in two ways. First, as discussed above, they argue that the 

manifestation trigger is not the proper trigger. Second, they argue that, even if the 

manifestation trigger applies, there was a duty to defend in the underlying action.

We hold that there was a duty to defend in the underlying action. An 

insurance company’s duty to defend is broader than its duty to indemnify. See 

MacLeod v. School Bd. of Seminole Cnty. 457 So.2d 511, 511 (Fla. 5th DCA 

1984). And, “[a]ll doubts as to whether a duty to defend exists in a particular case 

must be resolved against the insurer and in favor of the insured.” Grissom v. 

Commercial Union Ins. Co., 610 So.2d 1299, 1307 (Fla. 1st DCA 1992). In short, 

Mid-Continent was required to offer a defense in the underlying action unless it 

was certain that there was no coverage for the damages sought by the Carithers in 

the action.

Mid-Continent admits that “no Florida state court appellate decision” has 

decided which trigger applies to determining when property damage occurs in 

these circumstances. (Br. for Appellant at 15). And, Mid-Continent admits that the 

issue has split federal district courts in Florida. (Id.). Basically, Mid-Continent is 

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asking this court to make new law deciding which trigger applies, and, thereby,

retroactively justify its refusal to offer a defense to Cronk Duch.

Even if we were to agree with Mid-Continent as to what the appropriate 

trigger is for determining when property damage occurs, it would not follow that it

was entitled to refuse to offer Cronk Duch a defense. An insurance company must 

defend an action where the facts alleged against the insured would give rise to 

coverage, even if those facts are not ultimately proven at trial. We consider this 

situation analogous. Given the uncertainty in the law at the time, Mid-Continent 

did not know whether there would be coverage for the damages sought in the 

underlying action because Florida courts had not decided which trigger applies. 

Mid-Continent was required to resolve this uncertainty in favor of the insured and 

offer a defense to Cronk Duch. See Mid-Continent Cas. Co. v. Am. Pride Bldg. 

Co., 601 F.3d 1143, 1149 (11th Cir. 2010) (“‘Thus, an insurer is obligated to 

defend a claim even if it is uncertain whether coverage exists under the policy.’”) 

(quoting First Am. Title Ins. Co. v. Nat’l Union Fire Ins. Co., 695 So. 2d 475, 476 

(Fla. 3d DCA 1997)).

For this reason, we hold that the district court did not err in finding that MidContinent had a duty to defend Cronk Duch in the underlying action.

b. The Appropriate Trigger for Determining Coverage

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Although we need not decide which trigger applies for purposes of 

determining whether there was a duty to defend, this issue is material to whether 

there is coverage for the damages awarded.

As discussed above, the parties disagree about what it means for property 

damage to occur during the policy period, and thus trigger coverage. The district 

court held, and the Carithers contend, that the proper trigger is the injury-in-fact 

trigger. Applying this trigger, the only inquiry is when the property was damaged. 

If the date of actual damage was during the policy period, then that policy applies. 

Mid-Continent contends that we should apply the manifestation trigger, which 

(depending on which version of the test you apply) asks (1) when the damage was 

reasonably discoverable, or (2) when the damage was actually discovered.

The policy at issue applies to property damage that “occurs during the policy 

period.” The policy defines an occurrence as “an accident, including continuous or 

repeated exposure to substantially the same general harmful conditions.” 

Though cited by neither party, this court considered a similar policy, under 

Florida law, in Trizec Properties, Inc. v. Biltmore Construction Co., Inc., 767 F.2d 

810 (11th Cir. 1985).5

 In Trizec, the policy defined an “occurrence,” in relevant 

part, as “an accident, including continuous or repeated exposure to conditions, 

 5 While the issues raised in Trizec related to the insurance company’s duty to defend, rather than 

its duty to indemnify, the question presented both in Trizec and in this case is the meaning of the 

word “occurrence.” While we “express[ed] no opinion” in Trizec whether the insurance 

company was “liable under the policy,” this was due to the existence of factual disputes. 767 

F.2d at 813. 

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which results in bodily injury or property damage . . . .” Id. at 812. The policy 

language is almost identical in this case. The Trizec court considered the same 

issue: 

[The insurance company] contends that since the complaint alleges 

that the damage did not “manifest” itself until 1979, and because its 

coverage ceased on January 1, 1976, it has no duty to defend [the]

lawsuit. It asserts that the occurrence of the damage can only trigger 

coverage where it is discovered or has “manifested” itself.

We believe that [the insurance company] owes [the insured] a duty to 

defend [the] lawsuit. The language of the policy itself belies [the 

insurance company’s] assertions. The potential for coverage is 

triggered when an “occurrence” results in “property damage.” There 

is no requirement that the damages “manifest” themselves during the 

policy period. Rather, it is the damage itself which must occur during 

the policy period for coverage to be effective.

Id. at 813.

We agree with the analysis in Trizec. The plain language of the policy does 

not support Mid-Continent’s reading. Property damage occurs when the damage 

happens, not when the damage is discovered or discoverable.

We note the difficulty that may arise, in cases such as this one, where the 

property damage is latent, and is discovered much later. We also note that the 

district court found as a fact in this case that the property was damaged in 2005. 

For this reason, we limit our holding to the facts of this case, and express no 

opinion on what the trigger should be where it is difficult (or impossible) to 

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determine when the property was damaged. We only hold that the district court 

did not err in applying the injury-in-fact trigger in this case.

c. Denial of Motion to Amend the Pleadings

The district court denied Mid-Continent’s motion for leave to amend its

pleadings at trial to assert a coverage defense based on the fungus and mold

exclusion in the policy. Mid-Continent contends that the district court erred in 

relying on Fla. Stat. § 627.426(2)(a) as the basis for denying the motion.

According to Mid-Continent, this statute does not apply to denials of coverage 

based on express policy exclusions, such as the fungus and mold exclusion at issue 

here. The Carithers do not appear to dispute that Fla. Stat. § 627.426(2)(a) was not 

a proper basis for denying the motion. They contend, instead, that disallowing this 

last minute amendment was not an abuse of discretion under the circumstances.

The district court’s entire discussion of this issue is found in a footnote in its 

Memorandum and Order:

One of Plaintiffs’ witnesses, Brett Douglas [Newkirk], testified that 

the wood rot in Plaintiffs’ garage developed because the water 

incursion allowed microscopic “critters” such as fungi to grow in the 

wood. (Tr. at 113.) Mid-Continent then argued that the Policy would 

exclude coverage for damage to the garage because the Policy 

contains a “Fungus, Mildew and Mold Exclusion.” (Policy at ML 12 

17 (04 01).) But Mid-Continent has been aware since the inception of 

this matter that the damage to the garage was caused by wood rot, 

which is by definition “decomposition from the action of bacteria or 

fungi.” Definition of verb “rot,” www.merriamwebster.com/dictionary/rot (last visited March 3, 2014). MidContinent cannot now rely on an exclusion that it has never before 

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mentioned in this litigation. See Fla. Stat. § 627.426(2)(a) (prohibiting 

insurer from denying coverage based on a coverage defense unless 

insurer gives written notice to insured within 30 days after insurer 

knew or should have known of the coverage defense).

(Mem. and Order, DE 126 at 6–7 n.2). We read the district court’s opinion as 

denying the motion to amend for two reasons. First, the court discussed what can 

be characterized as unreasonable delay. The court stated that Mid-Continent had 

been aware of wood rot “since the inception of this matter” and that “MidContinent cannot now rely on an exclusion that it has never before mentioned in 

this litigation. (Id.) (emphasis added). Second, the district court determined that 

the amendment was precluded by Fla. Stat. § 627.426(2)(a).

We hold that the court did not abuse its discretion in denying the amendment 

based on Mid-Continent’s unreasonable delay. We need not decide whether the 

court’s reliance on Fla. Stat. § 627.426(2)(a) was error. Mid-Continent raised this 

issue for the first time at the close of the Carithers’s case, after the Carithers had 

finished presenting evidence. (Trial Tr. 1, DE 124 at 141). Long before he testified 

at trial, the Carithers’s expert had attested in an affidavit that “[d]ecay of wood 

components is the result of decay-fungi which consume the wood and are sustained 

by repeated wettings.” (Aff. of Brett Newkirk, DE 21-2 at ¶ 9) (emphasis added). 

The Carithers filed the expert’s affidavit containing that statement more than a year 

before the trial as a document in support of their motion for summary judgment. 

We agree with the district court that Mid-Continent was on notice of this issue 

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since the inception of the case, and find no abuse of discretion in the district 

court’s denial of the motion to amend its pleadings based on Mid-Continent’s 

unreasonable delay.

d. Property Damage Determinations

The district court awarded damages for damages to the brick, the tiles, the 

mud base, and the balcony. Mid-Continent contends that the brick, the tile, the 

mud base, and the balcony were not properly considered property damage under 

the policy. For this reason, Mid-Continent contends that the district court erred in 

awarding damages for these items. The Carithers contend that the brick was

properly considered property damage. The Carithers also contend that the tile was 

properly considered property damage. As for the balcony, they contend that, 

though not property damage itself, the replacement of the balcony was necessary to 

effect repairs to the garage. Similarly, they contend that the replacement of the 

mud base was necessary to effect repairs to the tile.

The parties agree that the Supreme Court of Florida’s two decisions, United 

States Fire Insurance Co. v. J.S.U.B., Inc., 979 So.2d 871 (Fla. 2007), and AutoOwners Insurance Co. v. Pozzi Window Co., 984 So.2d 1241 (Fla. 2008), govern 

this case. Neither party contends that the insurance policies in these two cases 

contain materially different policy language.

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According to these cases, “faulty workmanship or defective work that has 

damaged the otherwise nondefective completed project has caused ‘physical injury 

to tangible property’ within the plain meaning of the definition in the policy.” 

J.S.U.B., 984 So.2d at 889. However, “there is a difference between a claim for 

the costs of repairing or removing defective work, which is not a claim for 

‘property damage,’ and a claim for the costs of repairing damage caused by the 

defective work, which is a claim for ‘property damage.’” Id. (citations omitted). 

And, these cases only apply this rule to the work of sub-contractors. See, e.g., id. at 

890 (“Even if a ‘moral hazard’ argument could be made regarding the contractor’s 

own work, the argument is not applicable for the subcontractors’ work.”). Finally, 

where a homeowner purchases tangible property—such as a window—which is 

defectively installed by a sub-contractor, the damage to that tangible property 

caused by the defective installation constitutes property damage. Pozzi Window, 

984 So.2d at 1249 (“[B]ecause the windows were purchased separately by the 

Homeowner, were not themselves defective, and were damaged as a result of the 

faulty installation, then there is physical injury to tangible property . . . .”).

This court interpreted these cases in Amerisure Mutual Insurance Co. v. 

Auchter Co., 673 F.3d 1294 (11th Cir. 2012), which is binding precedent in this 

court. See United States v. Chubbuck, 252 F.3d 1300, 1305 n.7 (11th Cir. 2001)

(the prior precedent rule applies to interpretations of state law). In Auchter, a subCase: 14-11639 Date Filed: 04/07/2015 Page: 16 of 22 
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contractor negligently installed tiles on a roof and the result of this negligent 

installation was that the entire roof needed to be replaced. 673 F.3d at 1307. The 

plaintiff argued that the defective installation of tiles caused property damage to 

the roof. Id. The court rejected this argument, holding that the defective work in 

this case was the entire roof, not just the tiles. Id. at 1308. In other words, because 

a single sub-contractor built the roof, the roof was the relevant component for 

distinguishing between defective work and damage caused by defective work. Id. 

And, since the sub-contractor’s defective work (the roof) did not cause damage to 

any other property, there was no property damage.

The Auchter court interpreted Pozzi Window narrowly. It distinguished 

between a window, which is composed of many components, and roofing tiles, 

which are merely one component that goes into creating a roof. Id. at 1308 n.20. 

Thus, unlike in Pozzi Window, it was irrelevant whether the plaintiff had separately 

purchased the roofing tiles. Id. It only mattered that the sub-contractor’s negligent 

work on the roof did not damage any property other than the roof. Id.

We apply this framework to the property damage awards challenged by MidContinent.

i. The Brick

The district court determined that the negligent application of exterior brick 

coating caused property damage to the brick itself. This issue turns on whether the 

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brick installation and the application of the brick coating were done by a single 

sub-contractor. If it was done by a single sub-contractor, then the damage to the 

bricks was part of the sub-contractor’s work, and this defective work caused no 

damage apart from the defective work itself. However, if the bricks were installed 

by one sub-contractor, and a different sub-contractor applied the brick coating, 

then the damage to the bricks caused by the negligent application of the brick 

coating was not part of the sub-contractor’s defective work, and constituted 

property damage.

At oral argument, Carithers’s counsel conceded that there was no evidence 

presented on whether the brick coating was applied by the sub-contractor who 

installed the bricks, or a different sub-contractor. Thus, we must decide who had

the burden of proof on this issue. 

The general rule under Florida law is that “once the insured establishes a 

loss apparently within the terms of the policy, the burden is upon the insurer to 

prove that the loss arose from a cause which is excepted.” Phoenix Ins. Co. v. 

Branch, 234 So.2d 396, 398 (Fla. 4th DCA 1970). We conclude that proof that the 

damaged property was the work of a separate sub-contractor is part of the insured’s 

initial burden of bringing the loss within the terms of the policy. As the Supreme 

Court of Florida has noted, “there is a difference between a claim for the costs of 

repairing or removing defective work, which is not a claim for ‘property damage,’ 

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and a claim for the costs of repairing damage caused by the defective work, which 

is a claim for ‘property damage’ . . . .” J.S.U.B., 979 So.2d at 889 (citations 

omitted). We hold that distinguishing defective work from the damage caused by 

defective work is necessary to establish “a loss apparently within the terms of the 

policy.”

As discussed, Carithers’s counsel admitted that the Carithers had presented 

no evidence establishing that the brick installation and the application of the brick 

coating were performed by different sub-contractors. The Carithers failed to meet 

their burden of proof on this issue. As noted previously, if it was done by a single 

sub-contractor, then the damage to the bricks was part of the sub-contractor’s 

work, and this defective work caused no damage apart from the defective work 

itself. For this reason, we reverse the district court’s award of damages for 

property damage to the bricks.

ii. The Tile and the Mud Base

The district court determined that the use of inadequate adhesive and an 

inadequate base in the installation of tile caused property damage to the tile. The 

damage award included the cost of replacing both the tile and the mud base itself. 

The district court found as a fact that this tile was purchased by the Carithers. 

(Mem. and Order, DE 126 at 7). Mid-Continent does not contend that this factual 

finding was clearly erroneous. Instead, Mid-Continent contends that the tile itself 

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was part of the defective work of the sub-contractor. The Carithers respond that, 

since they separately purchased the tile, the Supreme Court of Florida’s decision in 

Pozzi Window justifies the award.

While a broad reading of Pozzi Window may support this award, such a 

reading is foreclosed by our decision in Auchter. As discussed above, the court in 

Auchter held that there is no coverage for a defective installation where there is no 

damage beyond the defective work of a single sub-contractor. Auchter, 673 F.3d at 

1308. And, unlike the windows in Pozzi Window, it is immaterial whether the 

homeowner separately purchased the tile. Id. at 1308 n.20. Thus, as with the brick, 

this issue turns on whether the installation of the mud base and the installation of 

the tile were performed by the same sub-contractor.

We have reviewed the evidence cited by the parties and find that there is no 

evidence from which a reasonable fact-finder could conclude that the tile and the 

mud base were installed by different sub-contractors. As with the brick, we 

conclude that the Carithers failed to meet their burden of proof on this issue. As 

noted previously, if the mud base and the tile were done by a single sub-contractor, 

then the damage to the tile was part of the sub-contractor’s work, and this defective 

work caused no damage apart from the defective work itself. For this reason, we 

reverse the district court’s award of damages for the tile and the mud base.

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iii. The Balcony

The district court found that the balcony was defectively constructed, which 

caused damage to the garage. The district court also recognized that, under Florida 

law, the defectively constructed balcony was not covered by the policy. However, 

the district court found as a fact that, in order to repair the garage (which the 

parties agree constituted property damage), the balcony had to be rebuilt. MidContinent does not contend that this factual finding was clearly erroneous. Rather, 

Mid-Continent contends that the Carithers cannot recover for any defective work, 

even where repairing that work is a necessary cost of repairing work for which 

there is coverage.

We hold that the district court did not err in awarding damages for the cost 

of repairing the balcony. Under Florida law, the Carithers had a right to “the costs 

of repairing damage caused by the defective work . . . .” J.S.U.B, 979 So.2d at 889. 

Since the district court determined that repairing the balcony was part of the cost of 

repairing the garage, which was defective work, the Carithers were entitled to these 

damages.

V. Conclusion

For the foregoing reasons, we reverse the district court’s award of damages 

for the brick, the tiles, and the mud base, affirm the judgment of the district court 

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in all other respects, and remand for a new determination of damages to be 

awarded.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

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