Humana Worker's Comp. Services v. Home Emergency Services, Inc.

• Decision Date: 13 March 2003
• Docket Number: No. SC02-1206.,SC02-1206.
• Citation: 842 So.2d 778
• Parties: HUMANA WORKER'S COMPENSATION SERVICES, et al., Petitioners, v. HOME EMERGENCY SERVICES, INC., Respondent.
• Court: Florida Supreme Court

842 So.2d 778

HUMANA WORKER'S COMPENSATION SERVICES, et al., Petitioners, v. HOME EMERGENCY SERVICES, INC., Respondent.

No. SC02-1206.

Supreme Court of Florida.

March 13, 2003.

Debra Potter Klauber of Haliczer Pettis, P.A., Fort Lauderdale, FL, for Petitioners.

Evan J. Langbein of Langbein & Langbein, P.A., Aventura, FL; Richard A. Friend, Miami, FL; and Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, FL, for Respondent.

WELLS, J.

We have for review the decision in Home Emergency Services, Inc. v. Humana Worker's Compensation, 815 So.2d 665 (Fla. 3d DCA 2002), which certified conflict with the decision in Norris v. Colony Insurance Co., 760 So.2d 1010 (Fla. 4th DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We quash the decision below and approve the decision in Norris.

Humana Worker's Compensation Services (Humana), is the insurer of Home Emergency Services, Inc. (HES) under a two-part insurance policy. Part One of the policy, entitled "Workers Compensation Insurance," provides that Humana will pay benefits required of HES by the workers' compensation law and will defend any claim against HES for such benefits. Part Two of the policy, entitled "Employers Liability Insurance," states in part:

A. How This Insurance Applies

This employers liability insurance applies to bodily injury by accident or bodily injury by disease. Bodily injury includes resulting death.

While this policy was in effect, an employee of HES, Alberto Milian, was injured when he fell from a ladder during the course of his employment. Milian received workers' compensation benefits, which were paid pursuant to Part One of HES's policy. HES then agreed to maintain the ladder in its possession for Milian, who intended to pursue a claim against the ladder's manufacturer and distributor. The ladder was subsequently misplaced or destroyed. When Milian later filed suit against the manufacturer and distributor for product liability, he also sued HES for negligent spoliation of evidence. Milian's complaint contained two counts against HES, one alleging that HES breached a contractual duty to maintain the evidence and a second alleging breach of a statutory duty. The complaint averred that the contractual duty arose from HES's agreement to maintain the ladder, while the statutory duty arose from section 440.39(7), Florida Statutes (1995), which imposes a duty on an employer to cooperate with an employee in the prosecution of claims and potential claims against third-party tortfeasors. See General Cinema Beverages of Miami, Inc. v. Mortimer, 689 So.2d 276 (Fla. 3d DCA 1995) (holding section 440.39(7) imposes duty to preserve evidence).

Upon receipt of Milian's complaint, HES requested coverage and defense from Humana pursuant to Part Two of its policy, the employers liability insurance portion. Taking the position that the policy did not cover claims for spoliation of evidence, Humana filed a petition for declaratory relief against HES to establish its coverage obligations. Thereafter, Humana and HES each filed motions for summary judgment. The trial court granted summary judgment in favor of Humana, concluding that Milian's spoliation claim against HES was not a "bodily injury" claim covered by the policy.

HES appealed to the Third District, which reversed and held that the spoliation claim was covered by Part Two of the policy. Home Emergency Services, 815 So.2d at 666. In reaching its conclusion that "there is coverage for a spoliation of evidence claim when the policy provides that the insurer will `pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury,'" id., the court referred to its previous analysis in the related case of Lincoln Insurance Co. v. Home Emergency Services, Inc., 812 So.2d 433 (Fla. 3d DCA 2001) (en banc). That case was predicated on the same underlying facts: when sued by Milian, HES also requested coverage from its commercial general liability carrier, Lincoln Insurance Company (Lincoln), under a policy covering "damages because of `bodily injury'" if "caused by an `occurrence,' " which was defined as an "accident." Like Humana, Lincoln filed a declaratory action to determine its coverage obligations. In Lincoln's case, the trial court entered summary judgment in favor of HES. But on appeal, the Third District, sitting en banc, held that the claim for spoliation of evidence fell within the scope of the Lincoln policy,<sup>1</sup> reasoning that Milian's fall from the ladder was an "occurrence" and, "[r]eading the policy favorably to the insured ... Milian's claim for spoliation of evidence [was] properly viewed as being `because of bodily injury.'" Lincoln, 812 So.2d at 438.

In addition to relying upon the Lincoln analysis, the Third District certified conflict between its decision in Home Emergency Services and the Fourth District's decision in Norris v. Colony Insurance Co., 760 So.2d 1010 (Fla. 4th DCA 2000). In Norris, the Fourth District held that negligent spoliation of evidence was not covered by an insurance policy containing language which required that bodily injury be caused by an "occurrence" which was defined as an "accident." See id. at 1011-12. The court emphasized that the "basis of a cause of action for spoliation of evidence [is] `an intangible and beneficial interest in the preservation of the evidence' " and concluded that "this occurrence, the destruction of evidence, did not result in bodily injury." Id. at 1012 (quoting DiGiulio v. Prudential Property & Cas. Ins. Co., 710 So.2d 3 (Fla. 4th DCA 1998)).

Humana sought discretionary review by this Court on the basis of the certified conflict between the Third and Fourth District's decisions. Humana urges this Court to adopt the holding in Norris and conclude that a spoliation claim does not fall within the plain language...