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Weitz Co., LLC v. Lexington Ins. Co.

United States Court of Appeals, Eighth Circuit

May 12, 2015

The Weitz Company, LLC, Plaintiff - Appellant
v.
Lexington Insurance Company; Allied World Assurance Company (U.S.), Inc.; Westchester Surplus Lines Insurance, Company; Essex Insurance Company; Lloyds London, also known as Underwriters at Lloyds; John Doe, Various unknown insurers hereby named John Doe Insurers, Defendants - Appellees

Submitted: October 7, 2014.

Page 642

Appeal from United States District Court for the Southern District of Iowa - Des Moines.

For The Weitz Company, LLC, Plaintiff - Appellant: David Titus Dekker, Laura A. Freid-Studio, Melissa Callahan Lesmes, Laura R. Thomson, Pillsbury & Winthrop, Washington, DC; Richard J. Kirschman, Stephen D. Marso, Whitfield & Eddy, Des Moines, IA; Jonathan Sternberg, Jonathan Sternberg, P.C., Kansas City, MO; John Alfred Templer Jr., Whitfield & Eddy, West Des Moines, IA.

For Lexington Insurance Company, Allied World Assurance Company (U.S.), Inc., Defendants - Appellees: Steven J. Brodie, John A. Camp, Bruce C. King, David Lanier Luck, Gary Michael Pappas, Carlton & Fields, Miami, FL; Daniel C. Brown, Carlton & Fields, Tallahassee, FL; Charles Glaston Cole, Mary Woodson Poag, Jessica Urban, Roger Warin, Steptoe & Johnson, Washington, DC; Ryan Gene Koopmans, John F. Lorentzen, Richard J. Sapp, Nyemaster & Goode, Des Moines, IA.

For Westchester Surplus Lines Insurance, Company, Defendant - Appellee: Terry J. Abernathy, Pickens & Barnes, Cedar Rapids, IA; Joan M. Fletcher, Dickinson & Mackaman, Des Moines, IA; William R. Lewis, Carol M. Rooney, Butler & Pappas, Tampa, FL.

For Essex Insurance Company, Lloyds London, also known as: Underwriters at Lloyds, Defendants - Appellees: Joan M. Fletcher, Dickinson & Mackaman, Des Moines, IA; James M. Hoey, Kelly A. Jorgensen, Don R. Sampen, James Robert Swinehart, Clausen & Miller, Chicago, IL.

Before LOKEN, BEAM, and COLLOTON, Circuit Judges.

OPINION

Page 643

BEAM, Circuit Judge.

The Weitz Company appeals the district court's[1] adverse grant of summary judgment in favor of several insurance companies (collectively, the defendant insurers) on Weitz's claims for equitable subrogation and unjust enrichment. Unfortunately, this litigation, at best, has involved a confusing array of asserted and withdrawn causes of action and periodic infusions of new or changed facts and arguments. As best understood, Weitz, a party to a completed construction contract with a Hyatt Corporation affiliate (Hyatt), seeks to become subrogated through Hyatt, to insurance monies that were not, according to Weitz, properly paid to Hyatt by the defendant insurers for claims made to them by Hyatt, their insured. We find that Weitz's claims are both unsupported and unsupportable. Accordingly, we affirm.

I. BACKGROUND

In January 2001, Weitz contracted with Hyatt to build an assisted-living facility in Aventura, Florida. While the contract between Hyatt and Weitz required acquisition of mutually protective insurance coverages by both parties, this dispute involves both insurance coverages mandated by the construction agreement and, curiously, post-construction property damage policies issued only to Hyatt for Hyatt's benefit.

The project was completed in July 2003. In November 2003, Hyatt obtained the currently at issue post-construction insurance policies from defendants Allied and Lexington. They are part of a comprehensive series of policies between Hyatt, Lexington and Allied designed to cover numerous Hyatt properties in sundry locations throughout the country. As indicated, these policies did not come into being until after completion of the construction work performed by Weitz. As also indicated, Weitz was neither a party to these insurance contracts nor a third-party beneficiary. The policies exclude from coverage damages due to faulty workmanship and mold, except to the extent that another covered loss results from the faulty workmanship--for ...


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