Koala Miami Realty Holding v. Valiant Ins.
| Decision Date | 14 September 2005 |
| Docket Number | No. 3D04-2910.,3D04-2910. |
| Citation | 913 So.2d 25 |
| Parties | KOALA MIAMI REALTY HOLDING CO., INC., Appellant, v. VALIANT INSURANCE CO., Appellee. |
| Court | Florida Supreme Court |
Gaebe, Mullen, Antonelli, Esco & DiMatteo and Michael A. Mullen, Coral Gables, and Maximiliano Zayas and Anne C. Sullivan, for appellant.
Lane, Reese, Aulick, Summers & Ennis and William S. Reese, Miami, and John J. Cavo, for appellee.
Before COPE, C.J., and GERSTEN and SUAREZ, JJ.
Plaintiff, Koala Miami Realty Holding Co., Inc. ("Koala") appeals from the granting of a final summary judgment in favor of the defendant, Valiant Insurance Co. ("Valiant"), and from the denial of Koala's motion for final summary judgment against Valiant. The trial court granted Valiant's summary judgment motion finding that Koala is not an additional insured under the Valiant policy in question and, as such, held that Valiant does not have a duty to indemnify or defend Koala. We reverse and remand.
This action arises out of an alleged slip and fall wherein David Alvarado claims to have fallen in the men's room of a building owned by Koala. At the time of the slip and fall, a contract existed between Valiant's insured, Aetna Maintenance Co., Inc. ("Aetna") and Koala requiring Aetna to perform certain janitorial functions at the building owned by Koala. The contract also required Aetna to have Koala listed as an additional insured on Aetna's general liability insurance policy with Valiant.
David and Maria Alvarado filed an amended complaint for damages for personal injuries allegedly suffered in the slip and fall against J.P. Morgan & Co., Inc., Aetna, and Koala, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. The amended complaint alleges, among other things, that Aetna was responsible for janitorial services for the building and that all the defendants had a duty to inspect and to maintain the restrooms in a condition reasonably safe for their intended use. The amended complaint alleges that Mr. Alvarado's fall was the result of the defendants' negligence for failing to use reasonable care in installing slippery and inadequate floor tile, failing to repair a long-time leaking and overflowing toilet, and failing to provide adequate lighting.
Koala then brought a declaratory action against Valiant requesting the court determine whether Koala was an additional insured under the Valiant insurance policy issued to Aetna and, if so, whether Valiant had a duty to indemnify and defend Koala in the Alvarado action. Koala and Valiant filed cross-motions for summary judgment. The trial court granted Valiant's motion for summary judgment finding that Koala was not an additional insured under the Valiant policy with Aetna and that, therefore, Valiant had no duty to indemnify or defend Koala with respect to the claims asserted against Koala in the Alvarado action. A timely appeal of that order followed.
If it is determined that the Valiant policy does provide coverage to Koala as an additional insured, then the allegations of the Alvarado amended complaint will determine whether Valiant has a duty to defend Koala. Patriot Gen. Ins. Co. v. Auto. Sales, Inc., 372 So.2d 187 (Fla. 3d DCA 1979). The duty to indemnify is determined by the underlying facts of the case and not by the allegations. See Hagen v. Aetna Cas. & Sur. Co., 675 So.2d 963, 965 (Fla. 5th DCA 1996). For this reason, just because a duty to defend may exist does not mean, at the end of the litigation, there will be a duty to indemnify. Before determining whether the Valiant policy provides coverage for these allegations, it must first be determined whether Koala is an additional insured under the Valiant policy.
The pertinent portion of the Valiant policy...
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