Federal judge rules in favor of Great Divide Insurance in suit over convenience store injury claim

By Erianne Leatherman | Jun 4, 2018

FORT PIERCE – A federal judge recently ruled in favor of an insurance company in a lawsuit related to an accident at a convenience store in Sebastian.   

According to the May 18 ruling in U.S. District Court for the Southern Division of Florida, Fort Pierce Division, Aventura Construction Corp. was contracted to build a Cumberland Farms convenience store in Sebastian. Great Divide Insurance Co. insured Aventura, which subcontracted with Drawdy Concrete Construction to complete the concrete and masonry work at the convenience store. 

The contract stated, “Subcontractor assumes all risk that contractor assumes toward owners within the parameters of the scope of work associated with the contract," according to the filing. An indemnification clause said that Drawdy Construction “expressly agrees to indemnify and save harmless Aventura Corp. and owner for all claims, demand, suits, costs or expenses because of bodily injury, sickness or diseases sustained by any person(s) including his employees or damage to property arising out of his operations, work or materials under this subcontract agreement.” Drawdy Construction was insured by Amerisure Insurance Co.

In November 2014, Bruce Henkle, a Cumberland Farms customer, claimed he tripped and fell over a flared curb of an Americans with Disabilities Act (ADA) ramp outside of the store and was seriously injured. He then sued Cumberland, Aventura, and others alleging Aventura was negligent in constructing the ADA ramp.

Henkle said he incurred in excess of $300,000 in past medical expenses, with future medical expenses of about $400,000, along with significant pain and suffering damages. The court filing contained no further details regarding the injuries.

The personal injury lawsuit was settled by Aventura on June 29, 2017, for $150,000 and was paid out by Great Divide.

Great Divide filed a complaint for itself and Aventura accusing Amerisure and Drawdy of breach of contract, court documents state. 

Amerisure then counterclaimed, asking for a declaration that the subcontract does not state that Drawdy is required to name Aventura as an additional insurer for completed work, court documents said. Drawdy then counterclaimed, asking for a declaration that it fulfilled its insurance obligations under the subcontract, and both parties asked for summary judgment. That portion of the case was settled in March in the same court, which entered an order granting in part plaintiff’s motion for summary judgment and granting in part defendants’ motion for summary judgment, according to the court filing.  

According to the court filing, the issue before the court was “to what extent Drawdy’s allegedly improper work, as claimed by Mr. Henkle, created the potential for liability to be placed on Aventura, not whether Drawdy was actually negligent or if the subject concrete ADA curb flare did, in fact, violate ADA standards or the Florida Building Code.”  

The court also said that since the “underlying personal injury claim was resolved via settlement, Great Divide need only establish that the settlement, or portions thereof, fall within the ambit of the indemnity clause. Further, in terms of burden of proof, Great Divide need only prove that Drawdy’s allegedly improper work, as claimed by Mr. Henkle, created the ‘potential for liability’ to be placed on Aventura.”

The court ruled that Great Divide is entitled to reimbursement of its defense costs and expenses.

“The court will determine the monetary amount of this judgment upon separate motion by plaintiff as plaintiff has not clearly provided record support for the total amount sought," the ruling said. "Plaintiff shall file a motion on damages within seven days of the date of rendition of this order which contains detailed calculations, together with citations to the record. The clerk of the court shall close this case.” 

 

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