LIBERTY SURPLUS INSURANCE CORPORATION v. KAUFMAN LYNN CONSTRUCTION INC UNITED GLASS SYSTEMS CORPORATION (2023)

OMNIBUS ORDER ON MOTIONS FOR SUMMARY JUDGMENT

THIS CAUSE comes before the Court upon Plaintiff/Counter-Defendant Liberty Surplus Insurance Corporation (“Liberty”) and Defendant/Counter-Plaintiff Kaufman Lynn Construction, Inc.’s (“Kaufman”) Motions for Summary Judgment. (DE 144; DE 161; DE 162). For the following reasons, Liberty's Motion for Summary Judgment on its Claims for Declaratory Relief (DE 161) is granted. As a result, Liberty's Motion for Summary Judgment on Kaufman's Counterclaim for Breach of Contract (DE 162) is denied as moot. Kaufman's Motion for Summary Judgment on its Counterclaim (DE 144) is denied as moot as to its counterclaim for breach of contract and a ruling is deferred as to its counterclaim for reformation.

I. BACKGROUND 1

This is an insurance dispute arising out of damage to JM Family Enterprises, Inc.’s (“Owners”) headquarters in Deerfield Beach, Florida, following Tropical Storm Eta in November 2020.² In July 2018, Owners hired Kaufman to serve as the general contractor for the construction of their new headquarters (“Project”). (DE 146 ¶ 1). The Project included the construction of, inter alia, two four-story office buildings (“Buildings A and B”) and a two-story dining hall (“Building D”) (collectively, “Buildings”).

On September 17, 2018, Kaufman obtained a commercial general liability policy (“Policy”) from Liberty to insure Kaufman and its subsequent subcontractors from third-party claims arising from the Project. (Id.) The Policy period ran from September 10, 2018 to December 31, 2021, and was later extended through March 31, 2022. (Id. ¶ 5). United Glass Systems Corporation (“United”), a Defendant in this case, was Kaufman's subcontractor. (Id. ¶ 17). United was, put simply, responsible for installing the glass exterior (“curtain wall”) of the Buildings. (DE 146 ¶ 17).

On November 8, 2020, Tropical Storm Eta struck the area of Owners’ headquarters and badly damaged the Buildings. (Id. ¶ 31). Specifically, water leaked into the Buildings through over fifty different locations, allegedly as a result of United's defective work. (Id.). On November 11, 2020, Owners held a meeting with Kaufman to inform it that Kaufman was responsible for mitigating the damage.³ (DE 148 ¶ 35). Kaufman would later file a lawsuit in Florida state court (“Underlying Action”) against several of its subcontractors—including United—alleging that their work contributed to the property damage.⁴

On November 20, 2020, as a result of the Owners’ claim (again, the Parties dispute whether this constitutes a claim) against Kaufman, Kaufman initiated the claims process with Liberty. (Id. ¶ 42). That same day, Liberty assigned a claim number (“Claim”) and soon after began investigating the Claim. (Id. ¶¶ 43-44). Throughout the claims process, Liberty issued three Reservation of Rights letters asserting that Endorsement 15, Course of Construction Exclusion (“COCE”), barred coverage. (See, e.g., DE 148-30 at 6). The COCE states, in part, that the Policy does not apply to “[a]ny ‘property damage’ at or to any project insured under this policy during the course of construction until the project is completed.” (DE 96-1 at 45). On November 16, 2021, after much back-and-forth between Kaufman and Liberty, Liberty closed the Claim. (DE 148 ¶ 57).

On February 8, 2022, Liberty filed suit in this Court against Kaufman and United seeking a “declaration that the [COCE] extinguishes Liberty's duty to defend or indemnify United, or any party, from claims asserted in the Underlying Action.” (DE 1 at ¶ 69). On November 4, 2022, Kaufman filed its Amended Counterclaims for breach of contract and reformation. (DE 110). Kaufman seeks to recover the $3,337,372.39 (Liberty disputes this amount) it incurred in mitigating the damages to the Buildings. Liberty and Kaufman move for summary judgment on all issues.

II. LEGAL STANDARD

“The court shall grant summary judgment 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). “A fact is material for the purposes of summary judgment only if it ‘might affect the outcome of the suit under the governing law.’ ” Kerr v. McDonald's Corp., 427 F.3d 947, 951 (11th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “Genuine disputes are those in which the evidence is such that a reasonable jury could return a verdict for the non-movant. For factual issues to be considered genuine, they must have a real basis in the record.” Ellis v. England, 432 F.3d 1321, 1325–26 (11th Cir. 2005) (citation omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge at summary judgment. Thus, [the Court] do[es] not determine the truth of the matter, but instead decide[s] only whether there is a genuine issue for trial.” Barnett v. PA Consulting Group, Inc., 715 F.3d 354, 358 (D.C. Cir. 2013) (citation omitted).

Under the summary judgment standard, the moving party “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324. If the non-moving party fails to “establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial[,]” summary judgment is warranted. Id. at 322. The party moving for summary judgment bears the burden of establishing that there is insufficient evidence to support the non-moving party's case. Id. at 325. Moreover, “[t]he court must view all evidence in the light most favorable to the non-movant and must resolve all reasonable doubts about the facts in favor of the non-movant.” United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1557–58 (11th Cir. 1990) (citation omitted).

III. DISCUSSION

This case centers on two endorsements in the Policy: Endorsement No. 15, Course of Construction (“COCE”), and Endorsement No. 26, Limitation of Coverage to Designated Premises or Project (“Project Description”). As to the COCE, the issue is whether it bars coverage in this case. I find that is does. As to the Project Description, there are two issues. First, whether Kaufman can obtain reformation of the Project Description to include a “phased” description and missing buildings. I defer ruling on this. Second, whether such reformation would affect the applicability of the COCE. I find that it would not, and thus do not find the need to defer ruling on the COCE issue. I will first address Kaufman's counterclaim for reformation then Liberty's claim for declaratory relief on the COCE.

A. KAUFMAN'S COUNTERCLAIM FOR REFORMATION

In its application for insurance (“Application”), Kaufman submitted the following Project description:

Project Description:

Phase 1: 2×2 × 4-story steel and concrete office buildings (57k sq ft), a 2-story dining hall (27k sq ft), central energy plant (power, chillers, cooling tower, fire pump, emergency generator) (6k sq ft), 6-story precast parking garage (5 levels of parking, roof lid with solar panels) (306k sq ft)

Phase 2: Demolish 5 existing buildings, 4-story steel and concrete office building (28k sq ft), 2-story training and conference center (35k sq ft), snorts and recreation building (gym, basketball court, locker rooms, showers) (25k sq ft), amphitheater structure, hardscaping, landscaping, water features (fountains, reflecting pools).

(DE 148 ¶ 6; DE 148-11 at 2) (bold in original and underlining added). Liberty, in turn, described the Project in the Endorsement No. 26 of the Policy (“Project Description”) as follows:

Project:

Demolition of (5) five existing buildings and New, Ground-Up Construction of (2) two (4) four-story steel & concrete office buildings, (1) one (2) two-story dining hall, a 6k square foot, central energy plant, and a (6) six-story precast parking garage, as well as any operations within 1,000 feet of the designated project that are necessary and incidental thereto.

(DE 96-1 at 62) (emphasis in original). Notably, the Project Description does not mention the non-bolded, underlined portions of the Application: phases, amphitheater structure, hardscaping, landscaping, water features (foundations, reflecting pools), 2-story training conference center, and a sports and recreation building.⁵ However, the conference center and recreation facility were subsequently removed from the scope of work. (DE 146 ¶ 4). Kaufman seeks reformation, based on mutual mistake, of the Project Description to reconcile this discrepancy.⁶

Even assuming that Kaufman can establish mutual mistake, I question whether its counterclaim raises an actual case or controversy under Article III such that it has standing or that its claim is ripe.⁷ The Parties have not briefed this issue. However, given that issues of justiciability implicate this Court's subject matter jurisdiction, it is the Court's obligation to raise it sua sponte. “Article III of the United States Constitution limits the jurisdiction of the federal courts to cases and controversies of sufficient concreteness to evidence a ripeness for review.” Digital Properties, Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997). The “case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis v. Contl. Bank Corp., 494 U.S. 472, 477 (1990).

To have standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 38–39 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. (internal citations and quotation marks omitted). Even if there is standing, the case must still be ripe. This requires a determination of “(1) the fitness of the issues for judicial decision, and (2) the hardship to the parties of withholding court consideration.” Digital Properties, 121 F.3d at 589. The party invoking the jurisdiction of the federal courts bears the burden of alleging and ultimately establishing standing. Lujan, 504 U.S. at 561.

Of particular concern in this case is whether Kaufman can demonstrate, in the words of standing, an injury in fact that is actual or imminent, not conjectural or hypothetical. Similarly, under the lens of ripeness, the primary concern is whether there is any hardship in withholding court consideration.

Kaufman articulates three reasons why it seeks reformation of the Policy that bear on this issue. First, that if the Project Description includes “phases” then it would follow that the COCE does not apply in this case. (DE 144 at 20). Second, still regarding the use of “phases,” to “ensure the Policy responds with coverage for future claims” pursuant to the Repair Work Endorsement. (Id.). Third, as it relates to the Omitted Structures, because “Liberty could argue that those buildings were not covered, potentially inviting more litigation.” (Id. at 21). I will briefly address each in turn.

On the first, as I will explain in Section B, I do not find that the omission of “phases” has any impact on the application of the COCE. As a result, I do not see how there can be an injury, at least as articulated by Kaufman thus far, for this omission. As to the second and third, neither the Repair Work Endorsement nor the Omitted Structures are at issue in this case. Kaufman is not seeking to recover damages for repair work under the Repair Work Endorsement. Nor is Kaufman seeking to recover damages arising out of the Omitted Structures. Instead, Kaufman argues that were the court not to reform the Policy, it would be uncertain how Liberty might respond to future (i.e., currently non-existent) claims. Kaufman is concerned that “Liberty could argue that [the Omitted Structures] were not covered, potentially inviting more litigation” or that Liberty would bar coverage under the Repair Work Endorsement because the Project Description lacks phases. (DE 144 at 20).

At least as articulated thus far, Kaufman is in effect requesting an advisory opinion to quell its concern over how Liberty might respond in the future. While the Court appreciates that Kaufman is placed in a position of uncertainty given these omissions, it is not clear that there is a cognizable injury. See Progressive Mt. Ins. Co. v. Middlebrooks, 805 Fed. Appx. 731 (11th Cir. 2020) (remanding on ripeness grounds where “[insurer] did not allege that anyone had filed an insurance claim or made a demand for payment, coverage, or defense, or that anyone had sued or threatened to sue ․”); see also Hartford Ins. Co. of Midwest v. Dana Transport Inc., CV169091KMJBC, 2017 WL 3641745, at *4 (D.N.J. Aug. 23, 2017) (finding no standing or ripeness to bring claim for reformation of insurance policy because relevant insurance provision was not imminently at issue). However, given that the Parties have not briefed this issue, I will allow Kaufman an opportunity to more clearly argue why it has standing to bring its counterclaim for reformation as well as why such counterclaim is now ripe. The briefing schedule is set in Part IV. Accordingly, the Court defers ruling on Kaufman's Motion for Summary Judgment on its Counterclaim for Reformation (DE 144).

B. COURSE OF CONSTRUCTION EXCLUSION

To reiterate, Liberty seeks a “declaration that the [COCE] extinguishes Liberty's duty to defend or indemnify United, or any party, from claims asserted in the Underlying Action.” (DE 1 at ¶ 69). Relatedly, Liberty raises the COCE as a defense against Kaufman's breach of contract counterclaim. (DE 164 at 9). In response, Kaufman argues that because phase one of the Project was complete ⁸ (i.e., no longer in the course of construction) the COCE does not apply.

Under the Policy, Liberty agrees to “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.”⁹ (DE 96-1 at 9). However, the COCE limits that coverage by stating:

This insurance does not apply to:

1. Any “property damage” at or to any project insured under this policy during the course of construction until the project is completed.

2. Any obligation to investigate, settle or defend or indemnify any person any claim or “suit” arising out of, or related in any way, either directly or indirectly to any “property damage” at or to the project during the course of construction until the project is completed.

Solely for the purpose of this endorsement:

Construction includes, but is not limited to, construction, renovation, repair, remodel, rehabilitation, demolition, excavation or landscaping.

Project includes, but is not limited to, buildings or structures and any supplies, materials or equipment used in connection with the project.

All other terms and conditions of the policy remain unchanged.

(Id. at 45) (emphasis added). The Policy specifies that terms/phrases in quotation marks have special meaning and refers the reader to the Definitions section (Section V) of the Policy. (Id. at 9). The central issue here is that the Policy does not define the bolded terms/phrases above: project and completed. This leaves open the question of how to apply the COCE given that Kaufman had completed phase one, but not phase two, of the Project.

“Florida law provides that insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties.” Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). “It is well settled that the construction of an insurance policy is a question of law for the court.” Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985). Where the policy language is ambiguous—i.e., susceptible to more than one reasonable interpretation, one providing coverage and the other not—it should be construed in favor of the insured. Id. As it applies to exclusionary provisions, like the COCE, the Florida Supreme Court provided the following guidance:

[E]xclusionary provisions which are ambiguous or otherwise susceptible to more than one meaning must be construed in favor of the insured, since it is the insurer who usually drafts the policy. See Excelsior Insurance Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 942 (Fla.1979). However, “only when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction is the rule apposite. It does not allow courts to rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.”

State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245, 1248 (Fla. 1986) (citation omitted). Moreover, “[W]hen analyzing an insurance contract, it is necessary to examine the contract in its context and as a whole, and to avoid simply concentrating on certain limited provisions to the exclusion of the totality of others.” Swire P. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003). Part of that context is understanding what sort of risk is assumed by the insurer. Id.

Here, it is helpful to begin by understanding what sort of policy is at issue. Liberty issued Kaufman a commercial general liability (“CGL”) policy. Generally, the purpose of a CGL policy is to provide the insured with coverage after construction is complete. See LaMarche v. Shelby Mut. Ins. Co., 390 So. 2d 325, 326 (Fla. 1980). This is in contrast to a builder's risk policy, which “provide[s] protection for fortuitous loss sustained during the construction of the building.” Swire P. Holdings, 845 So. 2d at 165. Viewed in this context, the COCE is meant to prevent the Policy from transforming into a builder's risk policy. With that in mind, I now move on to interpreting the text of the Policy.

The key sentence in the COCE says: “Any ‘property damage’¹⁰ at or to any project insured under this policy during the course of construction until the project is completed.” This raises two questions. What is the “project”? And when is the “project” “completed”? I will take each in turn.

What is the “project”? The most natural reading of “project” is the definition found in Endorsement 26, Project Description, in conjunction with the COCE expansion. (DE 96-1 at 62).¹¹ The Project Description lists a series of buildings/structures under the title “Project.” Moreover, it says that “[t]his insurance applies only to ․ ‘property damage’ ․ arising out of ․ [t]he project shown in the Schedule.” Id. (emphasis added). Thus, even though the term “project” is not a defined term in the definition section of the Policy, the Project Description makes obvious that the Policy only covers one project—the series of buildings/structures in Endorsement 26. As further evidence of this, the Project Description does not place project in its plural form. Neither does the COCE, which expands the definition of project to include, without limitation, “buildings or structures and any supplies, materials or equipment used in connection with the project.”¹² (emphasis added). This only serves to confirm that there is a single project of which there may be several components.

Kaufman places great significance on the use of the term “phases” (which it is seeking reformation for) in its Application. However, even if Kaufman's Application ¹³ were the new project description, it would not change the interpretation of project as it applies in the COCE. Kaufman's Application still refers to a single project by using the title: Project Description. That Kaufman describes the project as occurring in phases does not change the fact that the Policy and Kaufman's own Application characterize the entire thing as a single project. Accordingly, I find that the term project as used in the COCE means the series of buildings/structures in the Project Description and to whatever extent the COCE itself expands on that by including things used in connection thereof.

When is the “project” “completed”? The Policy does not define the term “complete.” Kaufman, however, urges the Court to import part of the definition from a different part of the Policy into the COCE, specifically the provisions pertaining to “Products-completed operations hazard” (“PCOH”). (DE 168 at 5). The Policy defines the PCOH as:

Includ[ing] all “bodily injury” and “property damage” occurring away from premises you own or rent and arising out of “your product” or “your work” except ․

(2) Work that has not yet been completed or abandoned. However, “your work” will be deemed completed at the earliest of the following times:

(a) When all of the work called for in your contract has been completed.

(b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site.

(c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project.

Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed.

(DE 96-1 at 26-27) (emphasis added). Kaufman reasons that because the Policy does not define “complete,” then the Court should read the COCE in its “context” by pulling from the PCOH. (DE 168 at 5-6). This is consistent, says Kaufman, with the rule that ambiguous terms must be read in favor of the insured.

Kaufman's line of reasoning skips a crucial step: the court must first determine if the term (here, “complete”) is ambiguous. It is not. The COCE adopts the plain and ordinary meaning of complete. That is, “having all necessary parts, elements, or steps” (Merriam-Webster)¹⁴ or “having all necessary parts[,] not lacking anything” (Britannica).¹⁵ This, read in conjunction with the definition of “project,” means that the COCE does apply in this case.

Had the Parties intended to include a more capacious interpretation of “complete” in the COCE—as used in the PCOH—they could have done so. In fact, that is exactly what they did in the Repair Work Endorsement by stating, “[e]xtension begins when the Designated Project or any part thereof has been put to its intended use or is occupied in whole or in part by any person or organization other than another contractor or subcontractor working on the same project ․” (96-1 at 64). Kaufman turns this on its head by arguing that a plain and ordinary reading of complete would render the Repair Work Endorsement useless. I do not find this to be a convincing argument. First, the COCE only applies to “property damage”; the Repair Work Endorsement also applies to “bodily injury.” Second, the only loss is the gap between parts of the Project being put to use and the entire Project being complete.¹⁶ This can hardly be said to render the Repair Work Endorsement useless.

Kaufman's entire defense and counterclaim hinges on its ability to import the PCOH definition of complete into the COCE. Without that, Kaufman cannot argue that the project was complete (i.e., having all necessary parts) because phase two was still in its infancy.¹⁷ (See DE 168 at 21). The Court cannot find ambiguity where there is none. To do so would only rewrite the contract contrary to the best representation of the Parties’ intent: the language of the Policy. See State Farm Mut. Auto. Ins. Co., 498 So. 2d at 1248.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that:

(1) Liberty's Motion for Summary Judgment on its Claims for Declaratory Relief (DE 161) is GRANTED.

(2) Liberty's Motion for Summary Judgment on Kaufman's Counterclaim for Breach of Contract (DE 162) is DENIED as MOOT.

(3) Kaufman's Motion for Summary Judgment on its Counterclaim (DE 144) is DENIED as MOOT as to its counterclaim for breach of contract and a ruling is DEFERRED as to its counterclaim for reformation.

(4) Kaufman may file a brief on or by March 17, 2023, addressing the Court's standing/ripeness questions as it relates to its counterclaim for reformation. Liberty may file a response within 14 days of Kaufman's brief. Kaufman may file a reply within 7 days of a response. Opening briefs may not exceed 12 pages and the reply 6 pages.

a. Kaufman is advised that failure to timely brief this issue may result in dismissal without prejudice of its counterclaim for reformation.

(5) Final Judgment is withheld pending resolution of Kaufman's counterclaim for reformation.

SIGNED in Chambers at West Palm Beach, Florida, this 27 day of February, 2023.

FOOTNOTES

2.   This background leaves out a great deal of facts given that I find no breach of contract because of the Course of Construction Exclusion, a relatively straight-forward legal analysis that turns on text of the Policy.

3.   The Parties dispute whether this meeting and subsequent correspondence constitute a “claim” such that it triggered the Policy. I do not decide this issue because I find that the Course of Construction Exclusion bars coverage. In this Court's Order on Liberty's first Motion to Dismiss (DE 110), I explained that “[w]hile Liberty may wish to interpret a ‘claim’ as being limited to written demands, the text of the Policy does not make that inevitable.” (DE 110 at 7). Kaufman has, on several instances in the briefing, taken this to mean that the Court decided that there indeed was a proper claim that triggered the Policy. (See, e.g., DE 170 at 1). Not so. On a Rule 12(b)(6) motion to dismiss, the court determines whether, taking plaintiff's facts as true, it plausibly states a claim. As such, I found that given the facts as plead and the text of the Policy, Kaufman plausibly stated a claim for breach of contract and thus should survive a motion to dismiss.

4.   The Underlying Action is in the Circuit Court of the Fifteenth Judicial Circuit for Palm Beach County and is styled Kaufman Lynn Construction, Inc., v. United Glass Systems Corp., Stanton Engineering, Inc., Christopher Stanton, P.E., SG&P Constructioneering, Inc., AR Glazing, Inc., CTC Installations, Inc., and Seneca Insurance Company, Inc., 2021-CA-3035.

5.   Hereinafter, these omissions are referred to as “Omitted Structures.”

6.   “In Florida, ‘a court of equity has the power to reform a written instrument where, due to a mutual mistake, the instrument as drawn does not accurately express the true intention or agreement of the parties.’ ” Essex Ins. Co. v. Tina Marie Ent., LLC, 602 Fed. Appx. 471, 473 (11th Cir. 2015) (quoting Providence Square Ass'n, Inc. v. Biancardi, 507 So. 2d 1366, 1369 (Fla. 1987)). “A mistake is mutual when the parties agree to one thing and then, due to either a scrivener's error or inadvertence, express something different in the written instrument.” Providence Square Ass'n, 507 So. 2d at 1372.

7.   The line between ripeness and standing here is thin. “[S]tanding focuses [on] whether the type of injury alleged is qualitatively sufficient to fulfill the requirements of Article III and whether the plaintiff has personally suffered that harm, whereas ripeness centers on whether that injury has occurred yet.” Progressive Mt. Ins. Co. v. Middlebrooks, 805 Fed. Appx. 731, 734 (11th Cir. 2020) (emphasis in original). In any event, “ripeness frequently ‘boils down to the same question’ as questions of Article III standing.” Id.

8.   Liberty disputes that phase one was complete. This dispute does not matter given my finding that the phased nature of the Project does not change the outcome of this case.

9.   For purposes of analyzing the applicability of the COCE, I assume that the Policy applies to the property damage at issue in this case.

10.   As is relevant here, “Property damage,” is defined as “[p]hysical injury to tangible property, including all resulting loss of use of that property.” (DE 96-1 at 27). As far as I can tell, the Parties do not dispute that the Buildings sustained “property damage” within the meaning of the Policy.

11.   (reproduced supra, Page 6).

12.   (reproduced supra, Page 10)

13.   (reproduced supra, Pages 5-6).

14.   https://www.merriam-webster.com/dictionary/complete (last visited 2/23/2023).

15.   https://www.britannica.com/dictionary/complete (last visited 2/23/2023).

16.   Practically, this does not even appear to be an issue because Kaufman has completed the entire Project by this point.

17.   Kaufman also raises an “unclean hands” affirmative defense that turns on its interpretation of the Policy for purposes of establishing injury. (See DE 168 at 10). This defense fails given the Court's interpretation of the COCE.

Donald M. Middlebrooks United States District Judge