CONTINENTAL CAS. COMPANY v. City of South Daytona

• Decision Date: 11 January 2002
• Docket Number: No. 5D00-2106.,5D00-2106.
• Citation: 807 So.2d 91
• Parties: CONTINENTAL CASUALTY COMPANY, Appellant, v. CITY OF SOUTH DAYTONA, Florida, etc., Appellee.
• Court: Florida District Court of Appeals

807 So.2d 91

CONTINENTAL CASUALTY COMPANY, Appellant, v. CITY OF SOUTH DAYTONA, Florida, etc., Appellee.

No. 5D00-2106.

District Court of Appeal of Florida, Fifth District.

January 11, 2002.

Rehearing Denied February 18, 2002.

Geoffrey D. Ringer and Rick L. Martintale of Ringer, Henry & Buckley, P.A., Orlando, for Appellant.

Richard A. Sherman and Rosemary B. Wilder of Richard A. Sherman, P.A., Fort

Lauderdale and J.D. Fuller of Pine & Berger, Maitland, for Appellee.

PETERSON, J.

Continental Casualty Company (Continental) appeals a final summary judgment in favor of the City of South Daytona (City). Continental contends that the trial court erred by awarding attorney's fees and costs to the City and the City's insurance company, Nutmeg Insurance Company (Nutmeg).

The South Daytona / Halifax Little League Association (Little League) contracted to use the City's facilities for Little League events. The Little League promised to assume responsibility for any and all claims which arose from the use of the City's facilities, to protect, defend, indemnify, and hold harmless the City from any and all claims including personal injury, and to secure an insurance policy naming the City as a co-insured.

During one of the Little League games a baseball coach was hit in the face by a baseball and sued the City and the Little League. The City notified Nutmeg, its general liability insurer, of the action and it in turn requested Continental, the insurer that the Little League procured, to satisfy its promise to the City. Continental says it offered to contribute to the cost of the defense of the City subject to its right to review the propriety of the legal fees and to have input into the defense of the case. The City contends, however, that Continental chose not to participate in the defense of the claim leaving the defense to Nutmeg. The City eventually prevailed in the action as a result of the defense provided by Nutmeg.

The City then filed a petition for declaratory relief against Continental seeking judicial determination of its rights under the policy secured by the Little League and reimbursement for the costs of defense incurred by it and Nutmeg as well as attorney's fees and costs for filing of the declaratory action.

Both the City and Continental moved for summary judgment. The City asserted that its agreement with the Little League shifted liability for injuries to third parties from the City's own liability carrier to the Little League's liability carrier and that the primary obligation to defend and indemnify the City for an action arising out of the Little League's use of the City's facilities was that of Continental. Continental argued that the City was not the real party in interest and that Nutmeg, the real party in interest, had no right of subrogation or contribution against Continental pursuant to the prevailing case law of Argonaut Insurance Co. v. Maryland Casualty Co., 372 So.2d 960 (Fla. 3d DCA 1979), and Continental Casualty Co. v. United Pacific Insurance Co., 637 So.2d 270 (Fla. 5th DCA), rev. denied, 645 So.2d 451 (Fla.1994).

Finding the terms and conditions of the agreement between the City and the Little League to be controlling, the trial court determined that the City and the Little League agreed that any claims which arose from the use of the City's facilities were to be primarily and exclusively covered by the insurance provided by the Little League. The court then awarded the City and Nutmeg attorney's fees and costs incurred in the defense of the initial claim by the injured coach as well as fees and costs incurred in bringing the declaratory action.

Continental...