ACCEPT. INS. CO. v. BATES, DUNNING & ASSOC., INC.
Decision Date | 13 August 2003 |
Docket Number | No. 3D03-606.,3D03-606. |
Parties | ACCEPTANCE INSURANCE COMPANY, Appellant, v. BATES, DUNNING & ASSOCIATES, INC., Appellee. |
Court | Florida District Court of Appeals |
Cooney, Mattson, Lance, Blackburn, Richards & O'Conner and Bruce M. Trybus and Warren B. Kwavnick, for appellant.
Jeffrey B. Crockett and Julianna M. Thomas, for appellee.
Before COPE, SHEVIN and WELLS, JJ.
Rehearing and Rehearing En Banc Denied November 14, 2003.
Acceptance Insurance Company appeals a summary judgment in a declaratory judgment action directing it to defend Bates, Dunning & Associates, Inc., [Bates], its insured, in the underlying action, Rubino v. O'Donnell, No. 01-20983-CA-11 (Fla. 11th Cir. Ct. filed Sept. 6, 2001). We reverse.
The Rubino plaintiffs, security guards employed by Rosie O'Donnell, claim that Bates intercepted their oral communications at O'Donnell's residence without their consent. Acceptance sought a declaratory judgment as to its duty to defend Bates. Both sides filed summary judgment motions. The court granted a summary judgment in Bates' favor.
review granted, 844 So.2d 645 (Fla.2003).
We agree with Acceptance's contention that it had no duty to defend Bates based on the policy exclusion that states:
This policy does not apply ... to any claim for injury arising out of a willful violation of a penal statute or ordinance committed by or with the knowledge of the insured.
The Rubino complaint asserted claims for violation of section 934.03, Florida Statutes,1 and common law invasion of privacy alleging that (1) Bates violated section 934.03, Florida Statutes, by intercepting or causing others to intercept plaintiffs' oral communications without their consent; and, (2) Bates intentionally intruded upon plaintiffs' seclusion by intercepting their oral communications; and, such actions were "outrageous, willful, hostile, intentional, wanton, malicious, and done in bad faith." These claims assert facts that fall within the policy exclusion.
Section 934.03, a penal statute, provides, in pertinent part, that unless all parties to the communication have consented, any person who "[i]ntentionally intercepts ... or procures any other person to intercept any ... oral ... communication ... is guilty of a felony of the third degree." Bates' argument that the exclusion does not apply because the complaint does not allege a "willful" violation of penal law is without merit. The complaint allegations assert the violation of section 934.03 which requires the intentional interception of oral communications without the party's consent.2 There is no difference between a willful and an intentional violation as the terms "willful" and "intentional" are synonymous in this case. Reliance Ins. Co. v. Lazzara Oil Co., 601 So.2d 1241 (Fla. 2d DCA 1992).3 Therefore, the policy exclusion is applicable to this count.
Bates' reliance on Morgan Int'l Realty Inc. v. Dade Underwriters Ins. Agency, Inc., 617 So.2d 455 (Fla. 3d DCA 1993), is misplaced. Contrary to Bates' assertion, Morgan International does not mandate a duty to defend in this case. Morgan International merely holds that an exclusion for the insured's willful violation of a criminal statute did not vitiate an insurer's coverage of the malicious prosecution claim. The verdict against the insured for the tort of malicious prosecution did not necessarily imply that insured violated the criminal statute as to false statements. Morgan Int'l Realty Inc., 617 So.2d at 458-59. Here, however, the complaint allegations only encompass the intentional interception of oral communications without plaintiffs' consent.
The common law invasion of privacy count...
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