Scottsdale Ins. Co. v. Deer Run Property Owner's Ass'n, Inc., 93-0277
| Decision Date | 09 September 1994 |
| Docket Number | No. 93-0277,93-0277 |
| Citation | 642 So.2d 786 |
| Parties | 19 Fla. L. Weekly D1871 SCOTTSDALE INSURANCE COMPANY, Appellant, v. DEER RUN PROPERTY OWNER'S ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. |
| Court | Florida District Court of Appeals |
Appellee's motion for rehearing is denied. However, for the purpose of making a correction, we withdraw our opinion of May 25, 1994 and republish the opinion as follows:
We reverse the trial court's determination that Appellant, Scottsdale Insurance Company, is liable to Deer Run Property Owner's Association, its insured under a general liability insurance policy, for attorney's fees that Deer Run was required to pay to a homeowner. The homeowner had prevailed in litigation against Deer Run, which Scottsdale defended on Deer Run's behalf.
The trial court determined that the policy is ambiguous. We disagree. The relevant portion provides that Scottsdale will pay for "all sums" the insured becomes obligated to pay "as damages because of ... property damage." That language does cover a portion of the damages Scottsdale paid as a result of Deer Run's liability for property damage to the homeowner's lot which resulted from Deer Run's negligent maintenance of the canals which the declaration that created the homeowner's association obligated it to maintain. However, the attorney's fees which the homeowner recovered from Deer Run under the terms of the Deer Run declaration of restrictions pertained solely to the homeowner's securing an injunction to abate the violation of the declaration, not his recovery of damages for the damage to Bottone's property.
Additionally, Scottsdale is not estopped, by reason of its failure to comply with the notice requirements of the claims administration statute, section 627.426(2), Florida Statutes, from asserting that there is no coverage for attorney's fees under the policy. The lack of coverage for an insured's contractual obligation to pay attorney's fees is not a "coverage defense" to coverage which, but for some breach of condition, otherwise would exist. See AIU Ins. Co. v. Block Marina Inv., Inc., 544 So.2d 998, 1000 (Fla.1989); Country Manors Ass'n v. Master Antenna Sys., Inc., 534 So.2d 1187 (Fla. 4th DCA 1988).
We affirm, however, the trial court's award of...
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