Nateman v. Hartford Cas. Ins. Co.

• Decision Date: 21 February 1989
• Docket Number: No. 87-86,87-86
• Citation: 544 So.2d 1026
• Parties: H. Richard NATEMAN, M.D., Appellant, v. HARTFORD CASUALTY INSURANCE CO., Appellee.
• Court: Florida District Court of Appeals

Page 1026

544 So.2d 1026

H. Richard NATEMAN, M.D., Appellant, v. HARTFORD CASUALTY INSURANCE CO., Appellee.

No. 87-86.

District Court of Appeal of Florida,

Third District.

Feb. 21, 1989.

Clarification Granted June 1, 1989.

Rehearing Denied July 5, 1989.

Brumer, Cohen, Logan & Kandell, Cooper, Wolfe & Bolotin and Marc Cooper, Miami, for appellant.

Preddy, Kutner, Hardy, Rubinoff, Brown & Thompson and G. William Bissett, Miami, for appellee.

Before SCHWARTZ, C.J., and NESBITT and BASKIN, ^* JJ.

NESBITT, Judge.

While the Director of Emergency Services at Baptist Hospital, Dr. Nateman allegedly defamed Dr. Valdez and his medical credentials by asserting Valdez's refusal to accept a patient for emergency treatment at another hospital resulted in the patient's death. Nateman, unaided by any insurance carrier, successfully defended the resulting defamation action brought by Valdez. In the meantime, Nateman brought this action for declaratory judgment against Hartford Casualty Insurance Company. That company had agreed in a policy with Baptist Hospital to afford the hospital defense and indemnity for the hospital's responsibility in its care and treatment of patients. When Hartford refused to defend Nateman, he brought this action against Hartford claiming that he was an additional insured under Hartford's policy with Baptist.

The gist of Valdez's complaint alleged that Nateman as Director of Emergency Services at Baptist Hospital was acting in his capacity as a representative, agent or employee of the hospital as well as individually at the time of the libelous statement's publication. Nateman points to that assertion as well as a plethora of Florida cases for the proposition that the allegations of a complaint determine an insurer's duty to defend, see National Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla.1977), and thus Hartford was under a duty to defend Nateman.

We disagree with this conclusion. While, as a general rule, the obligation to defend an insured against an action, whether groundless or not, must be measured and determined by the allegations of the petition rather than the outcome of the litigation, an obvious exception must be made in those instances where, notwithstanding allegations in the petition to the contrary, the insurer successfully urges the alleged insured is not in fact an insured under the policy. Smith v. Insurance Co. of State of Pennsylvania, 161 So.2d 903 (La.App.1964).

The insurer is not obligated to provide a defense for a stranger merely because the plaintiff alleges that the defendant is an insured or alleges facts which, if true, would make the defendant an insured. The mere allegations of the plaintiff's petition may not create an obligation on the part of the insurer to defend where no such obligation previously existed. Id. See Michaels v. United States Fidelity & Guar. Co., 129 So.2d 427 (Fla. 2d DCA 1961) (where liability policy of contractor afforded no coverage to crane operator, contractor's insurance company was under no duty to defend); see also Keithan v. Massachusetts Bonding & Ins. Co., 159 Conn. 128, 267 A.2d 660 (1970) (lessee's liability insurer was under no contract duty to provide a defense for worker who was in fact not an insured under policy, simply because a third party had alleged facts which if true would have given worker the status of an insured); Navajo Freight Lines, Inc. v. Liberty Mut. Ins. Co., 12 Ariz.App. 424, 471 P.2d 309 (1970) (a sine qua non to the existence of any obligation to defend, or pay, whether the suit be groundless or otherwise, is the preexisting relationship of insurer and insured); Ricciardi v. Bernasconi, 105 N.J.Super. 525, 253 A.2d 487 (1969) (liability carrier owes no duty to defend one who cannot qualify as an insured); Butler v. Maryland Cas. Co., 147 F.Supp. 391, 395 (E.D.La.1956) (allegations in the plaintiff's petition cannot create an obligation on the part of the insurer to defend where none previously existed).

At the outset, we observe that in cases where one is alleged to be an additional insured, it is much more feasible to ascertain initially the question of who is covered as opposed to the issue of what the coverage is. While we acknowledge the viability of the general rule that the allegations of the complaint determine an...