Court stays case for coverage fight between Fort Myers construction management company, insurer

By Marian Johns | May 8, 2019

FORT MYERS – A federal court has stayed a case involving a Fort Myers construction management company that had been ordered to pay more than $600,000 in a construction defect lawsuit and who is being sued by its insurer over coverage in the matter. 

According to an April 18 U.S. District Court for the Middle District of Florida Fort Myers Division filing, one of the defendants, Dana M. DiCarlo a trustee of the Dana M. DiCarlo revocable trust, petitioned the court for a motion to dismiss and abstain claims by plaintiff Southern-Owners Insurance Company. 

The case stems from Southern-Owners disputing its duty to compensate its insured and co-defendant, G.R. Construction Management, which must pay a judgment of $672,853.48 as a result of the construction defect lawsuit filed by defendant Dana M. DiCarlo.  

Although Southern-Owners defended G.R. Construction Management in the suit, it argues it is not required to pay G.R. Construction Management because of "no allocated verdict form at trial" and that damages can not "be allocated between covered and non-covered damages." Southern-Owners seeks "a declaration that certain property exclusions apply." Southern-Owners states G.R. Construction Management needs to obtain the allocated verdict to show which damages are covered and not covered, however the trial court did not allow a verdict form with allocated damages and used an "undifferentiated verdict form" instead. 

DiCarlo seeks to dismiss Southern-Owners' action due to the involvement of the same parties in a court action she filed which is pending in the state court and for which she is seeking post-judgment collection efforts. 

U.S. District Judge John Steele ruled that the court could not "yet determine whether the suits present the same issues between the same parties" and that those are "necessary components" needed for the court to decide. 

The court granted DiCarlo's alternative relief and granted her stay request pending the state court's determination of DiCarlo's other action while denying her dismissal without prejudice.

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