Erie Insurance Exchange v. Colony Development Corp.12/31/2003
.In this consolidated action, plaintiff-appellant, The Ravines at Parkwick Drive Condominium Association ("Association"), appeals from judgments of the Franklin County Court of Common Pleas, which found Colony Development Corporation ("Colony") and the Association did not qualify for indemnification under policies issued to Colony by Erie Insurance Exchange ("Erie"), and any potential liability on Erie's part should be limited to $125,000.
.According to stipulated facts, The Ravines at Parkwick Drive ("Ravines"), which is located in Columbus, Ohio, is a 64-unit condominium development, consisting of 16 buildings, each divided into four residential units. Colony was the developer and general contractor of the Ravines and originally owned the property upon which the condominium complex is located.
.In approximately August 1994, site preparation and excavation commenced at the site of the condominium complex. As residential units were finished and sales transactions completed, the condominium units were transferred to residential owners. Construction of units continued through 1995 and 1996. In March 1997, Colony conveyed title to the last residential unit. During the early stages of construction, problems arose in several areas: foundation walls, roof trusses, sidewalks, decks, firewalls, landscaping, and drainage.
.Throughout the construction of the Ravines, Colony subcontracted various tasks, including architectural design, civil engineering, soils engineering, surveying, site preparation, excavation, masonry, framing, and installation of footings. Colony's employees did not perform any of the construction of the condominium development; however, Colony employees did perform certain punch-list type repairs as units were completed and occupied. As the general contractor, Colony was responsible for overall coordination, supervision, inspection, and approval of subcontractors and subcontractors' work.
.On May 30, 1997, in common pleas case No. 97CVH-05-5759 (appellate case No. 02AP-1088), the Association sued Colony, alleging negligence, breach of express warranty, breach of contract, strict liability, fraudulent concealment, violations of R.C. 5311.26, and violations of Ohio Consumer Sales Practices Act, R.C. 1345.01, et seq.
.Colony, an insured under comprehensive commercial general liability ("CGL") policies issued by Erie, notified Erie of the Association's suit and requested defense and indemnification.
.On September 27, 1997, in common pleas case No. 97CVH-09-8739 (appellate case No. 02AP-1087), Erie brought a declaratory judgment action, seeking a determination about its duty to defend or indemnify Colony. Colony counterclaimed, claiming Erie had a duty to defend and indemnify Colony. On October 29, 1997, the Association moved to consolidate Erie's declaratory judgment action and the Association's action; the trial court granted the Association's motion to consolidate.
.On January 16, 1998, pursuant to Civ.R. 15, the Association moved to amend its complaint by joining individual condominium owners as additional plaintiffs along with their claims. The trial court granted the Association's motion to amend its complaint; on March 17, 1998, in an agreed entry, individual condominium owners were joined as additional defendants in Erie's declaratory judgment action. On October 9, 1998, the trial court granted leave for a second amended complaint to be filed by the Association.
.On March 2, 1998, Colony filed a third-party complaint against its subcontractors, generally alleging claims of negligence and, in the alternative, breach of contract. Colony later dismissed without prejudice three th
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