Employers Commercial Union Ins. Co. of America v. Kottmeier
| Citation | 323 So.2d 605 |
| Decision Date | 19 December 1975 |
| Docket Number | No. 75--948,75--948 |
| Parties | EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY OF AMERICA, Appellant, v. Charles A. KOTTMEIER, M.D., Appellee. |
| Court | Court of Appeal of Florida (US) |
William E. Hennen and William Duane Wood, III, of Bradham, Lyle, Skipper & Cramer, St. Petersburg, for appellant.
Joseph W. Gaynor, of Jacobs, Robbins & Gaynor, P.A., St. Petersburg, for appellee.
This appeal involves a question of liability insurance coverage in a suit for slander.
Dr. J. Martin Klein brought suit against Dr. Charles A. Kottmeier and his liability insurance carrier, Employers Commercial Union Insurance Company of America (Employers Commercial), alleging that Dr. Kottmeier had made numerous slanderous remarks impugning Dr. Klien's professional reputation as a physician and anesthesiologist. Count I of the second amended complaint contained a prayer for compensatory damages, Count II sought punitive damages and Count III was a claim for compensatory and punitive damages based upon a theory that the alleged statements constituted a malicious and intentional interference with Dr. Klein's professional relationships with surgeons and other personnel at Morton Plant Hospital. A motion to dismiss filed by Employers Commercial was granted as to Counts II and III but denied as to Count I.
Employers Commercial then filed its answer denying that Dr. Kottmeier was insured for the claims contained in Count I. Thereupon, Dr. Kottmeier filed a cross-claim against Employers Commercial seeking specific performance and a declaratory judgment to the effect that he was covered under the policy and that Employers Commercial had a duty to provide him a defense to Dr. Klein's suit. Ultimately the court entered an order on the cross-claim which specified that Employers Commercial had a duty to provide coverage and a defense to Dr. Kottmeier with respect to Count I of Dr. Klein's complaint. Employers Commercial has filed an interlocutory appeal from that order which we construe to be a partial summary judgment on liability.
The pertinent portions of the Employers Commercial policy read as follows:
'1. COVERAGE
(a) PERSONAL LIABILITY
The company agrees to pay on behalf of the Insured the ultimate net loss in excess of the retained limit which the Insured shall become legally obligated to pay as damages because of personal injury or property damage caused by an occurrence.
C. DEFINITIONS
9. 'Personal Injury' means:
(c) the publication or utterance of a libel or slander or other defamatory or disparaging material, or a publication or utterance in violation of an individual's right of privacy, except that maliciously published or uttered by, at the direction of, or with the consent of the Insured, . . .'
It has been said that 'malice, either actual or imputed, (is) the gist of every actionable libel.' Layne v. Tribune Co., 1933, 108 Fla. 177, 146 So. 234. Therefore, Employers Commercial contends that the provisions of C.9. (c) preclude coverage even though Count I of Dr. Klein's complaint does not contain allegations of malice. If this be true, paragraph C.9. (c) would be meaningless with respect to defamatory statements by the insured because it would provide coverage for libel and slander and yet take it away in the same breath. We think a more logical interpretation of this provision is that there is coverage for all libel or slander by the insured, except that which is published or uttered with Actual malice. In other words, even though the defamatory words may carry with them a presumption of legal malice, coverage is still provided unless it be shown that the statements were made with actual malice.
Employers Commercial's reliance upon paragraph B.6. of the policy which excludes coverage for 'any act committed by or at the direction of the Insured with intent to cause personal injury' is misplaced. The Florida courts follow the rule that even though the act which...
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