[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13628

Non-Argument Calendar

____________________

THE CINCINNATI SPECIALTY UNDERWRITERS 

INSURANCE COMPANY, 

Plaintiff-Counter Defendant-Appellee

Cross- Appellant, 

versus

KNS GROUP, LLC,

Defendant-Counter Defendant-Cross- Appellee,

GM&P CONSULTING AND GLAZING 

CONTRACTORS, INC., 

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2 Opinion of the Court 21-13628

Defendant-Counter Claimant-Appellant

Cross-Appellee,

GEMINI INSURANCE COMPANY,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:20-cv-61349-WPD

____________________

Before JORDAN, NEWSOM, and MARCUS, Circuit Judges.

PER CURIAM:

A casino owner unhappy with the quality of construction on 

its new casino sued its general contractor and others in Maryland 

state court. The general contractor filed a third-party complaint 

against a subcontractor, and that subcontractor’s insurer filed suit 

in the United States District Court for the Southern District of Florida, seeking a declaratory judgment that it need not defend the general contractor and subcontractor. This appeal addresses which 

parties the insurer must defend, based on the coverage provisions 

and exclusions in KNS Group, LLC (“KNS”)’s insurance policy with 

Cincinnati Specialty Underwriters Insurance Company

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21-13628 Opinion of the Court 3

(“Cincinnati”). After careful review, we affirm the district court’s 

(1) grant of summary judgment in favor of Cincinnati on the basis 

that it has no duty to defend or indemnify GM&P Consulting and 

Glazing Contractors, Inc. (“GM&P”) in the underlying lawsuit; (2) 

grant of summary judgment in favor of KNS on the basis that Cincinnati has a duty to defend KNS; and (3) conclusion that it is premature to ascertain whether Cincinnati has a duty to indemnify KNS.

I. 

The parties in this case came together to build the Maryland 

Live! Casino and Hotel in Anne Arundel County, Maryland. Tutor 

Perini Building Corporation (“Tutor Perini”), the general contractor leading the construction project, hired GM&P to provide exterior glazing for the building. GM&P, in turn, enlisted subcontractor KNS to assist it by glazing glass and installing window walls. 

The parties signed a contract on June 5, 2017, in which KNS agreed 

to “take out, maintain, and pay all premiums for” commercial general liability and other types of insurance, and to indemnify GM&P 

for liability for damages “to person or property caused in whole or 

in part by any act, omission, or default by the sub-contractor[.]” 

KNS acquired commercial liability insurance (“the Policy”) 

from Cincinnati for the relevant period. The Policy covered losses 

due to “property damage,” which it defined as “[p]hysical injury to 

tangible property” or “[l]oss of use of tangible property that is not 

physically injured.” The Policy “include[d] as an additional insured” any party that KNS, the named insured, provided in writing 

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4 Opinion of the Court 21-13628

that it would insure under its policy. However, the Policy warned

that it would cover those additional insured parties: 

only with respect to “bodily injury,” “property damage” or “personal and advertising injury” caused, in 

whole or in part, by: 

1. [The named insured’s] acts or omissions in the performance of [its] ongoing operations for the additional insured;

2. The acts or omissions of those acting on [the 

named insured’s] behalf in the performance of [its] 

ongoing operations for the additional insured[.]

The present case stems from a June 25, 2020 lawsuit (“the 

Underlying Action”) brought by PPE Casino Resorts Maryland, 

LLC (“PPE”), the casino’s owner, against its general contractor and 

subcontractors in the Circuit Court for Anne Arundel County. The 

state-court complaint alleged, inter alia, that GM&P installed a defective “Glass Façade” that has “loose gaskets between window 

panels, damaged sealants and panel frames, and misaligned window wall panels creating the risk of property damage.” PPE asserted that GM&P’s negligent furnishing of materials and negligent 

installation of the Glass Façade was a breach of GM&P’s duty to 

PPE to complete the façade “in a safe manner and without causing 

property damage to PPE or creating the risk of property damage.” 

GM&P responded with a third-party complaint in the Underlying Action against KNS and two other third-party defendants 

that played roles in the construction process. In it, GM&P brought 

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claims against KNS for breach of contract and negligence due to 

KNS’s alleged defective construction of the casino. GM&P also 

raised a common-law indemnification claim, as well as a contractual-indemnification claim, alleging that KNS “expressly or impliedly agreed to indemnify and/or defend GM&P for any and all 

damages assessed against GM&P due to their acts or omissions.” 

On July 7, 2020, Cincinnati filed the instant lawsuit in federal 

district court, seeking a declaratory judgment that it has no duty to 

defend and no duty to indemnify KNS or GM&P in the Underlying 

Action. According to Cincinnati, the policy “provides in part that 

no coverage is afforded to an additional insured where there is no 

coverage for the named insured (i.e., KNS).” Gemini Insurance 

Company, which provides GM&P with commercial general liability insurance, intervened in the suit on the side of GM&P and KNS. 

The parties then filed cross-motions for summary judgment, 

and the district court ruled that Cincinnati has a duty to defend 

KNS in the Underlying Action, and that Cincinnati’s narrower duty 

to indemnify KNS is not yet ripe for adjudication, but that Cincinnati has no duty to defend and no duty to indemnify GM&P in the 

Underlying Action. GM&P timely appealed this ruling, and Cincinnati filed a cross-appeal of the district court’s ruling that it has a 

duty to defend KNS in the Underlying Action.

II. 

We review a district court’s summary judgment ruling de 

novo, viewing the facts in the light most favorable to the nonUSCA11 Case: 21-13628 Date Filed: 10/06/2022 Page: 5 of 15
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movant. Hallums v. Infinity Ins. Co., 945 F.3d 1144, 1148 (11th Cir. 

2019). Summary judgment is proper when “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). We also review de 

novo the interpretation of insurance contracts, see Hallums, 945 

F.3d at 1148, which, in this diversity case, we construe in accordance with Florida law, see State Farm Fire and Cas. Co. v. Steinberg, 393 F.3d 1226, 1230 (11th Cir. 2004).

Under Florida law, we read insurance contracts “according 

to their plain meaning,” considering the provisions in tandem to 

find the most reasonable and probable interpretation. Garcia v. 

Fed. Ins. Co., 969 So. 2d 288, 291 (Fla. 2007) (quotations omitted); 

see also Gilmore v. St. Paul Fire & Marine Ins., 708 So. 2d 679, 680 

(1st Fla. DCA 1998). Policy language is deemed ambiguous only if

“the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and another limiting coverage.” Garcia, 969 So. 2d at 291 (quotations omitted).

An insurer’s duty to defend an insured in a legal action based 

on Florida law “arises when the complaint alleges facts that fairly 

and potentially bring the suit within policy coverage,” and does not 

require delving into the merits of a case. Jones v. Fla. Ins. Guar. 

Ass’n, 908 So. 2d 435, 442–43 (Fla. 2005). We analyze the duty to 

defend by comparing the allegations in the complaint with the language of the policy. Id. We resolve any doubts about whether an 

insurer has a duty to defend in favor of the insured. Id. at 443. 

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However, an insurer need not defend an insured party if a 

policy exclusion applies. Keen v. Fla. Sheriffs’ Self-Ins. Fund, 962 

So. 2d 1021, 1024 (4th Fla. DCA 2007). If an insured satisfies its

initial burden of showing that policy coverage applies, “the burden 

shifts to the insurer to prove that the loss arose from a cause which 

is excepted.” Hudson v. Prudential Prop. and Cas. Ins. Co., 450 So. 

2d 565, 568 (2d Fla. DCA 1984).

III. 

Turning first to GM&P’s appeal, we conclude that Cincinnati’s additional insured endorsement does not provide coverage 

to GM&P. The Policy limits GM&P’s coverage to “bodily injury,”

“property damage” or “personal and advertising injury” caused, in 

whole or in part, by KNS or KNS’s agents. Relying on the “plain 

meaning” of the Policy, see Garcia, 969 So. 2d at 291, we read it to 

cover GM&P only for damages that KNS or KNS’s agents completely or partially caused. The complaint in the Underlying Action 

alleges that GM&P was negligent in its furnishing of materials and 

installation of the Glass Façade. It alleges no negligence by KNS 

nor any of its agents. Without more, Cincinnati has no duty to 

defend GM&P in the Underlying Action. Nor, moreover, does

Cincinnati have a duty to indemnify GM&P. See U.S. Fire Ins. Co. 

v. Hayden Bonded Storage Co., 930 So. 2d 686, 691 (4th Fla. DCA 

2006) (explaining that “the duty to indemnify is narrower” than the 

duty to defend and is based on the actual merits of the claims 

against the insured, instead of the allegations in the complaint).

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Our interpretation of the Policy aligns with the Florida Supreme Court’s decision in Garcia. There, the state court answered 

“yes” to our certified question, which asked: “Does an insurance 

policy providing coverage for an additional insured ‘with respect to 

liability because of acts or omissions’ of the named insured limit 

coverage to instances in which the additional insured is vicariously 

liable for acts of the named insured?” 969 So. 2d at 289. The court 

explained that the policy’s causal language “clearly indicate[s] that 

an additional insured is only entitled to coverage concerning liability that is caused by or occurs by reason of acts or omissions of the 

named insured.” Id. at 292 (emphases omitted). The court thus

concluded that the insurance company did not owe coverage to an 

additional insured in Garcia because the plaintiff in the underlying 

lawsuit had sued the additional insured “for her own negligence,” 

and “did not allege that [the additional insured] was liable for [the 

named insured’s] acts or omissions.” Id. Applying Garcia’s logic to 

this case, the allegations in the complaint make clear that Cincinnati does not owe GM&P a duty to defend in the Underlying Action because GM&P is being sued for its own negligence, not vicariously for any negligent acts or omissions on the part of KNS.

GM&P argues that, because the language “caused by” or 

“because of” would require an allegation of vicarious negligence in 

the complaint, per the reasoning in Garcia, reading “caused, in 

whole or in part, by” to similarly require vicarious negligence 

would render the term “in part by” mere surplusage. We disagree. 

There is a clear difference between “caused” and “caused in part 

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by”: the latter term means that even if the complaint alleged KNS 

was only 1% responsible for causing the faulty workmanship, then 

Cincinnati would have a duty to defend GM&P.1 

Accordingly, we affirm the district court’s conclusion that 

the Policy does not require Cincinnati to defend GM&P.

IV. 

We also affirm the district court’s declaration that Cincinnati 

must defend KNS in the Underlying Action. As we’ve explained,

“[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,” so an insurer is “required to offer a defense in the underlying action unless it [is] certain that there [is] no coverage for the 

damages sought by the [insured party] in the action.” Carithers v. 

Mid-Continent Cas. Co., 782 F.3d 1240, 1246 (11th Cir. 2015); see 

also Klaesen Bros. v. Harbor Ins. Co., 410 So. 2d 611, 613 (4th Fla. 

DCA 1982) (holding that an insurer has a duty to defend if a “complaint alleges (at least marginally and by reasonable implication)” 

facts that would lead to coverage). Since the exclusions to property 

damage coverage do not clearly apply, this standard is met here.

First, “property damage” -- defined as “[p]hysical injury to 

tangible property, including all resulting use of that property” -- is 

1 To the extent the parties dispute the meaning of the phrase “caused, in whole 

or in part by,” this simple, straightforward language is unambiguous. See, e.g.,

Amerisure Ins. Co. v. Seneca Specialty Ins. Co., No. 10-20442-Civ, 2020 WL 

3317035, at *4 (S.D. Fla. June 18, 2020).

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properly alleged to have occurred under the Policy. The complaint 

in the Underlying Action alleges that the “Glass Façade supplied 

and installed by” GM&P and other entities, including Tutor Perini 

and C.I. Energia Solar S.A.S. E.S. Windows (“CI Energia”) “is 

fraught with systemic defects, including loose gaskets between 

window panels, damaged sealants and panel frames, and misaligned window wall panels creating the risk of property damage.” 

In turn, GM&P’s third-party complaint, says that, if proven, the alleged property damage was the fault of KNS and/or its agents. 

Cincinnati relies on Florida law to argue that the Policy’s 

“property damage” coverage does not cover damage caused only 

by faulty workmanship. Indeed, Florida courts have held that the 

term “property damage” in standard commercial liability insurance 

policies does not cover an insured’s use of defective components 

or defective installation of components. Auto-Owners Ins. Co. v. 

Pozzi Window Co., 984 So. 2d 1241, 1248 (Fla. 2008). Instead, for

actionable property damage, an insured must have damaged another independent component of the property. Id. So, the Florida 

Supreme Court has explained that an allegation that a subcontractor “installed the windows defectively” would not suffice as property damage, but “[b]ecause the alleged defective installation resulted in water penetration causing further damage,” sufficient 

property damage was alleged. U.S. Fire Ins. Co. v. J.S.U.B., Inc., 

979 So. 2d 871, 890 (Fla. 2007).

Our decision in Carithers -- which held that an insurer owed 

coverage stemming from “the negligent application of exterior 

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brick coating” that had “caused property damage to the brick” of a 

house -- controls here. 782 F.3d at 1249–50. Applying J.S.U.B., our 

Court reasoned that no property damage would have occurred if 

the brick coating was negligently applied by the same subcontractor who installed the bricks, but “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.” Id. at 1250. 

Just as in Carithers, the complaint in the Underlying Action

alleges that one defendant (CI Energia) “supplied the glass panels” 

installed by another defendant (GM&P), which suggests that 

GM&P’s faulty installation could have damaged a separate component of the property -- CI Energia’s panels. Thus, when the pleadings are read favorably to the insured, they reasonably could lead 

to coverage.

We are not persuaded by Cincinnati’s argument that certain 

exclusions apply. For starters, Cincinnati waived its arguments 

about exclusion l, which concerns property damage to the named 

insured’s work “arising out of it or any part of it and included in the 

‘products-completed operations hazard.’” See Walker v. Jones, 10 

F.3d 1569, 1572 (11th Cir. 1994) (quotations omitted) (“[A]n issue 

not raised in the district court and raised for the first time in an 

appeal will not be considered by this [C]ourt.”). 

Considering the next proposed exclusions, we stress that 

Cincinnati bears the heavy burden of showing “that the allegations 

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12 Opinion of the Court 21-13628

of the complaint are cast solely and entirely within the policy exclusion and are subject to no other reasonable interpretation.” Castillo v. State Farm Fla. Ins. Co., 971 So. 2d 820, 824 (Fla. 3d DCA 

2007) (emphasis added and quotations omitted). As for exclusions 

j(5) and j(6), they exclude coverage for “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 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.

Exclusions j(5) and j(6), which Florida courts regularly evaluate together, cover the pieces of real property “the contractor’s 

operations were intended to include.” Wilshire Ins. Co. v. Birch 

Crest Apartments, Inc., 69 So. 3d 975, 976 (4th Fla. DCA 2011). So, 

for example, when a contractor damaged part of a customer’s pool 

while draining the entire pool, a Florida appeals court held that the 

damage to the pool was excluded from coverage. Am. Equity Ins. 

Co. v. Van Ginhoven, 788 So. 2d 388, 391 (5th Fla. DCA 2001). 

“Conversely,” the court explained, “damage to any property that 

[the contractor] was not performing operations on, or incorrectly 

performing work on,” such as “the plumbing, electrical, deck work, 

patio, screen enclosure or the residence,” would not fit within the 

exclusion. Id. By the same token, another Florida appeals court

held that exclusions j(5) and j(6) did not apply when a contractor 

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cutting trees trimmed some trees on a neighboring property, because those were not in the contractor’s intended scope of work. 

Nova Cas. Co. v. Willis, 39 So. 3d 434, 436–437 (3d Fla. DCA 2010).

At this stage of the proceedings, it is not clear whether the 

damage allegedly attributable to KNS in the Underlying Action 

would have been within the “natural and intended scope” of its operations on the property. See Wilshire, 69 So. 3d at 976. More 

specifically, it is unclear whether KNS allegedly damaged only the 

exterior of the glass façade or whether it caused other damage, or 

whether a different contractor or subcontractor’s work was involved. Therefore, Cincinnati did not meet its burden of showing 

that exclusions j(5) and j(6) remove its duty to defend KNS in the 

Underlying Action. 

As for the Policy’s breach-of-contract exclusion, Cincinnati 

argues that it precludes coverage for GM&P’s claims because they 

all arise from the allegedly defective work KNS performed pursuant to its contract. But the Policy does not exclude any and all tort 

claims related to KNS’s breach of contract. The breach-of-contract

exclusion reads: 

This insurance does not apply to any claim for “bodily 

injury” or “property damage” arising directly from or 

indirectly from breach of express or implied contract, 

including breach of an implied in law or implied in 

fact contract. This exclusion does not apply to liability 

for damages that an insured would have in the absence of the contract.

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14 Opinion of the Court 21-13628

Cincinnati says that GM&P’s claims against KNS -- for negligence, 

common law indemnification, and contribution -- all fall within this 

exclusion because they “stem from the fact that KNS contracted to 

perform the scope of work set forth in its contract with GM&P.” 

To begin with, Cincinnati has a duty to defend this whole 

suit if any claims fall within its scope of coverage. Irvine v. Prudential Prop. & Cas. Ins. Co., 630 So. 2d 579, 580 (Fla. 3d DCA. 1993)

(“Where some allegations set out in the complaint require the insurer to defend the insured and some allegations do not, the insurer must provide a defense on the entire suit.”); see also Stevens 

v. Horne, 325 So. 2d 459, 461 (Fla. 4th DCA 1975). Further, if any 

of GM&P’s claims against KNS could have been brought in the absence of a contract between the parties, that claim would not fall 

within the breach-of-contract exclusion. The exclusion expressly

“does not apply to liability for damages that an insured would have 

in the absence of the contract,” and, under Florida law, when a 

“claim sounds in tort,” the claim is “based on a duty independent 

of any contractual obligation or duty, . . . [thus,] the breach of contract exclusion cannot apply.” Carolina Cas. Ins. Co. v. Spicer, 323 

So. 3d 350, 352, 354 (1st Fla. DCA 2021).

GM&P’s third-party complaint alleged that KNS had:

a duty of care to ensure that the design and construction of Maryland Live were free from defective conditions, code violations, in conformance with the applicable plans and/or specifications, in conformance 

with industry and sound engineering and 

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21-13628 Opinion of the Court 15

construction standards, constructed with appropriate 

and non-faulty materials, and constructed in a workmanlike manner.

And it alleges KNS breached that duty. At least one of GM&P’s 

claims -- its claim that KNS was negligent -- sounds in tort, so this 

exclusion does not apply. 

In short, because PPE’s complaint in the Underlying Action 

includes allegations that plausibly fit within the Policy’s definition 

of “property damage,” and plausibly are not captured by the Policy’s exclusions, Cincinnati has a duty to defend KNS in the Underlying Action. However, since the duty to indemnify is a narrower 

inquiry that involves delving into the merits of PPE’s claims -- rather than just the allegations in PPE’s complaint -- we agree with 

the district court’s assessment that it is still premature to rule on 

Cincinnati’s duty to indemnify KNS for any damages that it might 

be liable for in the Underlying Action. 

AFFIRMED.

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