According to Port Consolidated, as a result of this faulty construction, users were able to steal diesel fuel over a period of time. Port Consolidated alleged that the defendants' actions constituted negligence and breach of contract, and it sought monetary damages for the lost fuel.

Westfield Insurance Company asked the Florida district court to declare that it had no duty to defend or indemnify Eagle Electric. The insurer moved for summary judgment, arguing that its insurance policy did not cover the damages claimed by Port Consolidated because stolen property did not constitute property damage.

The Westfield Policy

The Westfield policy defined:

property damage

to include:

[p]hysical injury to tangible property, including all resulting loss of use of that property 

and

[l]oss of use of tangible property that is not physically injured. 

The district court denied the motion.

In its decision, the district court explained that Westfield had to defend Eagle Electric if the damages related to the lost fuel constituted property damage, assuming no policy exclusions barred coverage.

It then rejected Westfield's argument that stolen property did not constitute property damage under Florida law.

The district court reasoned that because the theft of property diminished its market value to the person who lawfully possessed it, theft “must be considered property damage” unless the insurance policy “clearly” expressed a contrary intent. In the district court's view, Eagle Electric's policy did not clearly express a contrary intent – it did “not expressly exclude coverage for theft,” nor did it define “property damage” narrowly enough to exclude this coverage.

Consequently, the district court concluded, the lost fuel constituted property damage, and it could not rule that Westfield had no duty to defend Eagle Electric.

The case is Westfield Ins. Co. v. Eagle Electric, Inc., No: 8:16-cv-1639-T-30AEP (M.D. Fla. July 28, 2017). Attorneys involved include: For Westfield Insurance Company, Plaintiff: Wayne J. Tosko, LEAD ATTORNEY, Vasquez & Tosko, LLP, Orlando, FL. For Eagle Electric, Inc., Defendant: Raymond T. Elligett, Jr., LEAD ATTORNEY, Amy Stuart Farrior, Buell & Elligett, PA, Tampa, FL. For Port Consolidated, Inc., Defendant: Steven Jeffrey Chackman, LEAD ATTORNEY, Bernstein, Chackman, Liss & Rose. PA, Hollywood, FL. For Eagle Electric, Inc., Counter Claimant: Raymond T. Elligett, Jr., LEAD ATTORNEY, Amy Stuart Farrior, Buell & Elligett, PA, Tampa, FL. For Westfield Insurance Company, Counter Defendant: Wayne J. Tosko, LEAD ATTORNEY, Vasquez & Tosko, LLP, Orlando, FL.