Hartford Ins. Co. of the Southeast v. City of Sanibel, 86-343

• Court: Florida District Court of Appeals
• Writing for the Court: FRANK; CAMPBELL, A.C.J., and SCHOONOVER
• Citation: Hartford Ins. Co. of the Southeast v. City of Sanibel, 500 So.2d 581, 11 Fla. L. Weekly 2647 (Fla. App. 1986)
• Decision Date: 10 December 1986
• Docket Number: No. 86-343,86-343
• Parties: 11 Fla. L. Weekly 2647 HARTFORD INSURANCE COMPANY OF THE SOUTHEAST, Appellant, v. CITY OF SANIBEL, a municipal corporation, Appellee.

Page 581

500 So.2d 581

11 Fla. L. Weekly 2647

HARTFORD INSURANCE COMPANY OF THE SOUTHEAST, Appellant, v. CITY OF SANIBEL, a municipal corporation, Appellee.

No. 86-343.

District Court of Appeal of Florida Second District.

Dec. 10, 1986.

Rehearing Denied Jan. 14, 1987.

Robert L. Donald and G. Gordon Harrison of Pavese, Shields, Garner, Haverfield, Dalton & Harrison, Fort Myers, for appellant.

Mark R. Boyd of Walsh, Theissen and Boyd, Fort Lauderdale, for appellee.

FRANK, Judge.

Hartford Insurance Company of the Southeast, the appellant in this matter, has sought review of a declaratory judgment in which the trial court found that it had an obligation to defend the City of Sanibel in a pending federal proceeding.

The factual setting pertinent to our disposition is not complex. Couch, Inc., entered into a contract with the City to construct a public street. Ultimately Couch sued the City in a federal district court. It is alleged in the amended complaint filed in the federal action that the project was delayed by the City causing Couch to incur extra costs and that work was performed beyond the contract's terms pursuant to the City's direction. The City requested Hartford, which had provided it with a comprehensive business policy, to defend the federal action. Hartford declined and the City initiated the declaratory judgment action. In a pretrial stipulation, it was agreed, inter alia, that the City would be able to depose a Couch representative, but Hartford expressly reserved the right to contest the admissibility of the deposition; the stipulation further provided that that question would be dealt with in memoranda filed with the trial court. Thus, pursuant to the stipulation, the City deposed Roger Sollie who testified that because of the City's actions or inactions, Couch experienced losses stemming from idle equipment, a dormant asphalt plant it had established in Fort Myers and the non-productivity of employees, all of which resulted in a loss of profits. The stipulation also embodied a provision that if the trial court determined that Hartford had no duty to defend, it would not be responsible for any judgment rendered in the federal court. Thus, the critical issue before the trial court was the scope of the coverage the City had purchased from Hartford.

Hartford contends as its initial point on appeal that the trial court erred in utilizing the Sollie deposition for the reason that its inquiry had to be confined to the allegations set forth in the amended complaint filed in the federal court. We agree. See National Union Fire Insurance Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla.1977) (error to rely upon a stipulation to determine coverage). See also Pioneer National Title Insurance Co. v. Fourth Commerce Properties Corp., 487 So.2d 1051 (Fla.1986). We cannot discern from the trial court's judgment, however, whether it placed reliance upon Sollie's testimony. The City does contend in its brief that Sollie's deposition was needed to overcome ambiguity with respect to the claim pleaded in the federal litigation. The most we can extract from Hartford, on the other hand, is the naked statement in its brief that "it is plain that in the proceedings below the trial court did consider the deposition...." Surmise, which in part arises from the intensity of the City's belief expressed in its brief that Sollie's deposition is necessary in passing upon this matter, could lead us to believe that the trial court did avail itself of his testimony in reaching the final judgment; but surmise alone will not sustain a conclusion that the trial...