By, Amanda Ok. Anderson, Esq.
Lately, in December 2019, the Center District of Florida solidified an insurer’s protection obligations to a further insured in two opinions arising from the identical case – KB Residence Jacksonville LLC v. Liberty Mut. Fireplace Ins. Co., No. 3:18-CV-371-J-34MCR, 2019 WL 4247269, at *1 (M.D. Fla. Sept. 5, 2019) and 2019 WL 4228602, at *1 (M.D. Fla. Sept. 5, 2019). KB Residence Jacksonville, LLC (“KB Residence”) filed swimsuit towards Liberty Mutual Fireplace Insurance coverage Firm (“Liberty) and Ironshore Specialty Insurance coverage Firm (“Ironshore”) searching for declarations that each insurers had an obligation to defend KB Residence as a further insured in varied Florida state-court actions involving tasks whereby the insurers’ named insured, Florida State Plastering, carried out work as a stucco subcontractor on KB Residence’s behalf.
Whereas Liberty agreed that its protection obligation was triggered by the allegations of the underlying complaints it likewise asserted that its responsibility to defend KB Residence ended on June 2, 2017, when Liberty supplied its coverage limits to settle an unrelated class motion in South Carolina state court docket towards different insureds beneath the insurance policies (South Carolina Litigation). KB Residence Jacksonville LLC v. Liberty Mut. Fireplace Ins. Co., 2019 WL 4247269, at *2 (M.D. Fla. Sept. 5, 2019).
Importantly, for the primary time in Florida in a further insured context, the Court docket, in denying Libety’s Movement for Abstract Judgment squashed Liberty’s argument that “[t]o the extent an obligation to defend KB Residence ever existed, the plain language of the Insurance policies and case legislation restrict that responsibility to defend to claims for legal responsibility brought on by [FSP]. Liberty Mutual doesn’t have and by no means had an obligation to defend KB Residence for its personal legal responsibility, or for the legal responsibility of different subcontractors.” Id. The Court docket discovered Liberty’s argument to be unavailing. In its reasoning the Court docket said:
Florida legislation is evident that “[i]f the criticism alleges information partially inside and partially exterior the protection of the coverage, the insurer is obligated to defend the whole swimsuit.” Class 5, 76 So. 3d at 23 (emphasis added); see additionally Lime Tree Village Group Membership Ass’n, Inc. v. State Farm Basic Ins. Co., 980 F.2nd 1402, 1405 (eleventh Cir. 1993) (“An insurer’s ‘responsibility to defend is distinct from and broader than the responsibility to indemnify…and if the [underlying] criticism alleges information displaying two or extra grounds for legal responsibility, one being throughout the insurance coverage protection and the opposite not, the insurer is obligated to defend the whole swimsuit.’ ” (quoting Baron Oil Co. v. Nationwide Mut. Fireplace Ins. Co., 470 So. 2nd 810, 813-14 (Fla. 1st Dist. Ct. App. 1985))).
The Court docket expressly decided “that’s exactly the situation introduced right here, and Liberty Mutual should defend the whole swimsuit.” Id. at *9 (M.D. Fla. Sept. 5, 2019).
Ironshore likewise tried to shirk its protection obligations arguing there have been materials information in dispute and that it had no responsibility to defend KB Residence as a result of Liberty Mutual had already agreed to take action, and since the Coverage’s Steady or Progressive Harm or Harm Exclusion barred protection. KB Residence Jacksonville LLC v. Liberty Mut. Fireplace Ins. Co., 2019 WL 4228602, at *3.
Ironshore argued that it not have an obligation to defend KB Residence as a result of “Liberty Mutual has already agreed to defend KB Residence and there’s no proper to contribution in Florida.” Id. at *6. Ironshore maintained that primarily based on caselaw concerning the proper to contribution between insurers “and Liberty Mutual’s express acceptance of the total responsibility to defend KB Residence, it might be inappropriate and never doable for Ironshore to tackle the responsibility to defend Ironshore on this matter….” Id. The Court docket discovered Ironshore’s reliance on Florida legislation concerning the proper to contribution between insurance coverage firms to be unavailing. First, whereas noting the identical was inapplicable to the problems introduced by Ironshore, the Court docket examined the just lately enacted Legislature that created a proper of contribution amongst legal responsibility insurers for protection prices. See Fla. Stat. § 624.1055 (2019). Most significantly, the Court docket said “although Florida legislation has not all the time allowed contribution ‘between insurers for bills incurred in protection of a mutual insured,’ Argonaut Ins. Co. v. Maryland Cas. Co., 372 So. 2nd 960, 963 (Fla. 3d Dist. Ct. App. 1979), that doesn’t imply that Florida legislation permitted an insurer to shirk its contractual protection obligations just because one other insurer had already acknowledged its responsibility to defend.” Id. Certainly, the Court docket famous that the very case on which Ironshore relied, Argonaut, emphaszied the non-public nature of an insurer’s responsibility to defend:
The settlement to defend contemplates the rendering of companies. The insurer should examine, and conduct protection, and will if it deems it expedient, negotiate and make a settlement of the swimsuit. These issues every insurer is required to do no matter what the opposite insurer is doing. Whereas each might be part of collectively within the companies and share bills, there isn’t any requirement that they accomplish that. Conceivably, one may disagree with the opposite as to the technique of the investigation and protection. It may act independently of the opposite. Thus the connection is extra that of co-insurer than cosurety. As to the assured, neither one is excused to any extent from its full responsibility to defend, it doesn’t matter what the opposite does. The responsibility to defend is private to the actual insurer. It’s not entitled to divide that responsibility with or require contribution from the opposite.
Id. at *7. Thus, the presence of a number of insurers has by no means excused any single insurer from totally defending the insured. See id. (citing U.S. Fireplace Ins. Co. v. Transp. Cas. Ins. Co., 747 So. 2nd 404, 405 (Fla. 4th Dist. Ct. App. 1999); Cont’l Cas. Co. v. United Pac. Ins. Co., 637 So. 2nd 270, 273 (Fla. fifth Dist. Ct. App. 1994)). Accordingly, the Court docket concluded that Liberty Mutual’s recognition of its protection obligations didn’t relieve Ironshore of its personal. Id.
Whereas these guidelines have been the foundations of Florida for the higher a part of thirty years, these choices are the primary to solidify that insurer’s obligation to defend a further insured isn’t any completely different than their obligation to defend their named insured.
