FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 26, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-15556

Non-Argument Calendar

________________________

D.C. Docket No. 06-00044-CV-WLS-4

TRANSCONTINENTAL INSURANCE COMPANY,

CONTINENTAL CASUALTY COMPANY,

TRANSPORTATION INSURANCE COMPANY,

 Plaintiffs-Counter-

 Defendant-Appellee,

versus

R. LARRY PHILLIPS CONSTRUCTION COMPANY, INC.,

 Defendant-Counter-

 Claimant-Appellant,

KMAR INVESTMENTS, LLLP,

RIVERTOWN FORD, INC., et al.,

Defendant-Counter-Claimant.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

________________________

 (April 26, 2010)
Before BLACK, PRYOR, and COX, Circuit Judges.

PER CURIAM:

Transcontinental Insurance Company, Continental Casualty Company, and

Transportation Insurance Company (the “Insurers”) sought a declaratory judgment

that they had no obligation to indemnify or provide a defense to R. Larry Phillips

Construction Company, Inc. in connection with two lawsuits filed by George C.

Woodruff, Jr. against Phillips: one in 2004 and one in 2005. The Insurers and

Phillips filed cross-motions for summary judgment. The district court granted the

Insurers’ motion and denied Phillips’ motion. Phillips appeals. 

Phillips contracted with Woodruff to act as the general contractor in

constructing the Lakes III Apartments for Woodruff, which consisted of five

apartment buildings. After the completion of one of the buildings, Phillips learned

of a crack in the slab. Because of the crack and other problems associated with the

construction of Lakes III, Woodruff sued Phillips in 2004 in the state court of

Muscogee County, Georgia, alleging “that the footings, walls, floors and other

structures at the Lakes III complex have failed.” (R.12-126 at 13.) In 2005,

Woodruff filed a second lawsuit in the state court of Muscogee County, alleging that

Phillips “breached its contract and negligently constructed screened porches at Lakes

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III without proper flashing or other water protection, which caused water to leak into

buildings, resulting in rot and other damage.” (Id. at 16-17.)

In the district court declaratory action brought by the Insurers, Phillips asserted

that the Insurers had a duty to provide it with a defense and/or to indemnify it in the

Woodruff lawsuits. The Insurers responded with four reasons why coverage was

excluded by the insurance contracts. The district court agreed with the Insurers first

reason in support ofsummary judgment: that “no ‘property damage’ had been caused

by an ‘occurrence.’” (R.12-126 at 26.) 

In addition, Phillips argued that the Insurers waived their right to seek the

declaratory action, because the Insurers’ Reservation of Rights letters regarding the

two lawsuits were ineffective. In response, the Insurers argued that their Reservation

of Rights letters were indeed adequate to preserve their rights. The district court

agreed with the Insurers. Regarding the 2004 lawsuit, the court found that “the

November 7, 2001 Reservation of Rightsletter [was] applicable to the 2004 Lawsuit,

and further finds that the Plaintiffs are not estopped from seeking a declaratory

judgment regarding coverage of the 2004 Lawsuit.” (R.12-126 at 24.) With respect

to the 2005 lawsuit, the district court found that the Insurers “sufficiently reserved

their rights . . . [and] are not estopped from seeking a declaratory judgment regarding

coverage of the 2005 lawsuit.” (R.12-126 at 26.)

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On appeal, Phillips argues that the district court erred by holding that the

damage at issue was not covered by the policy. Phillips also contends that the

Insurers’ Reservation of Rights letters regarding the two lawsuits were ineffective,

and therefore estop the Insurers from denying coverage or seeking declaratory

judgment.

We conclude that the district court properly granted the Insurers summary

judgment and properly denied Phillips summary judgment for the reasons stated in

the court’s well-reasoned opinion. (R.12-126.)

AFFIRMED. 

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