SM BRICKELL LTD. PTNRSHP. v. St. Paul Fire & Marine Ins. Co.
| Decision Date | 30 May 2001 |
| Docket Number | No. 3D00-1465.,3D00-1465. |
| Parties | SM BRICKELL LIMITED PARTNERSHIP, Appellant, v. ST. PAUL Fire & MARINE INS. CO., Appellee. |
| Court | Florida District Court of Appeals |
de la O & Marko and Miguel M. de la O and Thomas J. Rebull, Miami, for appellant.
Sax, Sachs & Klein and James T. Ferrara, Boca Raton; Morse & Bolduc and Jeffrey A. Siderius, Chicago, IL, for appellee.
Before COPE, FLETCHER and SORONDO, JJ.
Appellant, SM Brickell Limited Partnership ("SM Brickell"), appeals from a final summary judgment declaring that Appellee, St. Paul Fire & Marine Insurance Co. ("St. Paul"), had no duty to defend or indemnify SM Brickell in two defamation actions based upon a policy exclusion. We affirm in part and reverse in part.
SM Brickell, a real estate developer, purchased a commercial general liability policy from St. Paul entitling it to a defense and indemnity in actions for personal injury, including libel or slander. The policy contained the following exclusion:
Susana Hansen and Dora Puig, real estate brokers hired to sell condominiums being developed by SM Brickell, filed lawsuits against SM Brickell and others. The amended complaint in the Hansen action sought recovery against SM Brickell for sales commissions due and owing and for defamation. The third amended complaint in the Puig action sought recovery against SM Brickell for breach of contract, defamation and intentional infliction of emotional distress. SM Brickell notified St. Paul when served with these claims. St. Paul denied coverage with respect to both lawsuits, relying in pertinent part upon the "false material" exclusion.
SM Brickell filed a declaratory judgment action, contending that St. Paul had a duty to defend and indemnify in both actions. St. Paul moved for summary judgment on the basis that both the Hansen and Puig complaints alleged that the defamatory statements were false and known to be false when made. The trial court granted final summary judgment, finding that St. Paul had no duty to defend SM Brickell against the amended Hansen complaint or the third amended Puig complaint. We find no error in the entry of summary judgment in favor of St. Paul as to these complaints and affirm the order under review with respect to the Hansen action.
However, shortly after the trial court entered its initial judgment, a fourth amended complaint was filed in the Puig lawsuit. This complaint alternatively alleged intentional wrongdoing or negligent defamation.1 SM Brickell moved for rehearing on the basis of the amended complaint. The trial court granted rehearing but then entered another judgment in St. Paul's favor, finding that the changes in the fourth amended complaint were insufficient as a matter of law to create a duty to defend by St. Paul. We disagree.
A liability insurer's duty to defend is controlled by the allegations in the complaint against the insured, even if they may be...
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