Hermitage Insurance Company v. Diaz Roofing LLC, 2:10-cv-02225

Hermitage seeks declaratory judgment that it has no duty to defend or indemnify Diaz Roofing and the Shirley Defendants in Blanchards’ state court action; case involves a potentially overlapping duty to defend under a commercial general liability policy.
Policy period May 20, 2008–May 20, 2009; Hermitage canceled the policy effective October 20, 2008.
Leaks on the Blanchards’ new roof were first noted in October 2007 (pre-policy); Diaz Roofing installed the roof in 2007.
No written contract adding the Shirley Defendants as additional insureds; Hermitage contends no duty to defend Shirley.
Blanchards’ state-court complaint alleges numerous construction defects, including roof leaks; Hermitage contends the alleged occurrence and damages are not covered because they commenced before the policy period.
Hermitage moves for summary judgment; Diaz Roofing moves for default judgment (the latter denied).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether any occurrence falls within the Hermitage policy period	Hermitage contends first occurrence pre-dates policy; no coverage	Diaz/Shirley argue ongoing/ongoing damages could be covered	No occurrence during policy period; no duty to defend/indemnify Diaz
Whether Diaz Roofing is an added insured under the policy	Policy requires a written contract adding insured; none here	Shirley Defendants seek defense/indemnity as additional insured	No duty to defend or indemnify Shirley Defendants
Whether late notice or misrepresentation affects coverage	Policy conditions may bar coverage for late notice	Not applicable due to absence of covered occurrence	Resolution unnecessary; no coverage for the prior occurrence

United States Fidelity & Guar. Co. v. Armstrong, 479 So. 2d 1164 (Ala. 1985) (insurer’s duty to defend determined primarily by allegations; may investigate)
Ladner & Co. v. Southern Guar. Ins. Co., 347 So. 2d 100 (Ala. 1977) (insurer may rely on facts beyond bare complaint to determine duty to defend)
Pacific Indemnity Co. v. Run-A-Ford Co., 161 So. 2d 789 (Ala. 1964) (court may look to admissible evidence to determine if an occurrence is alleged)
Blackburn v. Fidelity & Deposit Co. of Maryland, 667 So. 2d 661 (Ala. 1995) (uncertainty about covered occurrence requires investigation of facts)
Acceptance Ins. Co. v. Brown, 832 So. 2d 1 (Ala. 2001) (unambiguous interplay of occurrence and policy terms; duty to defend hinges on facts)
United States Fire Ins. Co. v. Safeco Ins. Co., 444 So. 2d 844 (Ala. 1983) (single occurrence principle where injuries stem from one proximate cause)
Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56 (3d Cir. 1982) (one occurrence may have multiple impacts if caused by one proximate cause)
St. Paul Fire & Marine Ins. Co. v. Christiansen Marine, Inc., 893 So.2d 1124 (Ala. 2004) (details on occurrence analysis and timing of damage)
Utica Mut. Ins. Co. v. Tuscaloosa Motor Co., 329 So.2d 82 (Ala. 1976) (coverage requires loss during policy period)