Florida exclusions j.(5) and j.(6), and covered versus uncovered allocation

In Nova Casualty Co. v. Willis, No. 3D09-1130 (Fla. 3^rd DCA June 3, 2010), the insured was hired by a property owner to trim trees on the owner’s property.   The insured improperly trimmed the trees on the owner’s property and also accidentally trimmed trees on adjacent property.   The owner sued the insured seeking damages for the damage caused by the improper and accidental tree trimming.  The insured’s CGL insurer filed suit seeking a declaratory judgment.  On cross motions for summary judgment, the trial court first held that exclusions j.(5) and j.(6) applied to the damages caused by the improper trimming of the trees on the owner’s property but did not apply to the damages caused by the trimming of the trees on the adjacent property.   The trial court then held that, because it was impossible to apportion the damages between covered and excluded, the insurer was responsible for all of the damages.  On appeal, the intermediate appellate court affirmed that part of the decision regarding application of the exclusions but reversed that part of the decision regarding apportionment.    With regard to exclusions j.(5) and j.(6), the court stated that “work” and “operations” referred to the insured’s scope of work with the owner.  Because the trees on the adjacent property were not within the scope of the insured’s work, the exclusions did not apply to those damages.  With regard to apportionment, the appellate court held that the insured had the burden of proving the specific dollar amounts incurred because of the trimming of the trees on the adjacent property and remanded for that determination.