Caduceus Self Ins. Fund, Inc. v. South Florida Emergency Physicians, 82-2263

• Decision Date: 16 August 1983
• Docket Number: No. 82-2263,82-2263
• Citation: 436 So.2d 1034
• Court: Florida District Court of Appeals
• Parties: CADUCEUS SELF INSURANCE FUND, INC., Appellant, v. SOUTH FLORIDA EMERGENCY PHYSICIANS and Ralph Madio and Madio & Company, Appellees.

Page 1034

436 So.2d 1034

CADUCEUS SELF INSURANCE FUND, INC., Appellant, v. SOUTH FLORIDA EMERGENCY PHYSICIANS and Ralph Madio and Madio

& Company, Appellees.

No. 82-2263.

District Court of Appeal of Florida,

Third District.

Aug. 16, 1983.

Rehearing Denied Sept. 21, 1983.

Blackwell, Walker, Gray, Flick & Hoehl and James C. Blecke, Miami, for appellant.

Horton, Perse & Ginsberg and Edward Perse, Brumer, Cohen, Logan & Kandell, Miami, for appellees.

Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.

SCHWARTZ, Chief Judge.

Caduceus Self Insurance Fund, Inc. appeals from what we view as a final declaratory judgment holding, inter alia, that it was required to provide a defense to South Florida Emergency Physicians, P.A. under the allegations of an amended malpractice complaint brought against South Florida and several other defendants below. ¹ We reverse.

It is established that an insurer's duty to defend is determined by whether the allegations of the complaint in question fall within the coverage provided by the policy. Peters v. Trousclair, 431 So.2d 296 (Fla. 1st DCA 1983); Federal Ins. Co. v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979), cert. denied, 389 So.2d 1107 (Fla.1980). The sole liability coverage provided by the instant policy to South Florida, which was contained in an endorsement to an already existing policy, stated:

It is agreed that such insurance as is afforded by this Coverage Agreement shall apply to:

SOUTH FLORIDA EMERGENCY PHYSICIANS, P.A.

as an additional named insured (including any Executive officer, Director, Stockholder or Shareholder thereof while acting within the scope of his duties as such) but only as respects professional services rendered or which should have been rendered by any physician or surgeon named in Item 1 of the Declarations of this Coverage Agreement. [emphasis added]

This restriction of coverage to services allegedly performed by the physicians thus specified--Drs. Leitman and Rae--is neither ambiguous, unclear, nor otherwise non-enforceable. K-C Manufacturing Co., Inc. v. Shelby Mutual Ins. Co., 434 So.2d 1004 (Fla. 1st DCA 1983); Coleman v. Valley Forge Ins. Co., 432 So.2d 1368 (Fla. 2d DCA 1983); Denman Rubber Manufacturing Co. v. World Tire Corp., 396 So.2d 728 (Fla. 5th DCA 1981); Cochrane v. American Surety Co. of New York, 108 So.2d 315 (Fla. 2d DCA 1959). A careful examination of the amended complaint reveals no claim whatever that South Florida is or may be liable for the actions or inactions of either of the named doctors. ² It therefore follows that Caduceus had no duty to defend South...