Stevens v. Horne
| Decision Date | 12 December 1975 |
| Docket Number | No. 74--1231,74--1231 |
| Parties | George STEVENS et al., Appellants, v. Theodore J. HORNE, Jr., and United States Fidelity and Guaranty Company, a Foreign Corporation, Appellees. |
| Court | Florida District Court of Appeals |
Charnelle H. Summers, Jr., Edw. P. Swan and Charnelle H. Summers, Jr., Miami, for appellants Carl Gunderson, Berry Goodstein, Larry D. Lynch, Robert W. Higgins, Richard C. Sems, and George Stevens.
Patrick M. Scanlon, Adair, Goldthwaite, Standford & Daniel, P.A., Atlanta, Ga., and Ralph J. Ray, Jr., Naze & Ray, Fort Lauderdale, for appellant-Communication Workers of America, Local 3107.
Martin J. Sperry, Carey, Dwyer, Austin, Cole & Selwood, P.A., Fort Lauderdale, for appellee U.S. Fidelity and Guaranty Co.
ALDERMAN, JAMES E., Associate Judge.
Theodore J. Horne, Jr. filed a suit against Communication Workers of America, Local 3107, hereinafter referred to as the union and certain individual union members alleging tortious misconduct in the nature of assault, battery, false imprisonment, libel by effigy and intentional infliction of emotional distress.
The union had a special multi-peril policy of liability insurance with United States Fidelity and Guaranty Company hereinafter referred to as USF & G. The union and the individual defendants notified USF & G of the pending litigation requesting that the insurance company defend the action. USF & G thereafter disclaimed any liability or responsibility for coverage under the policy. Both the union and the individual defendants filed third party actions against USF & G for failure to provide coverage under the contract of insurance issued in the union's name.
Plaintiff Horne's case commenced before a jury which rendered a verdict on behalf of the union and all individual members of to Count I (assault), Count II (battery) and Count III (false imprisonment), and against the union and six individual members on Count IV (libel by effigy) and Count V (intentional infliction of emotional distress). The trial court entered judgments in accordance with the jury's verdicts. No appeals from these judgments were taken.
The remaining issues regarding insurance coverage were heard before the trial judge who entered his order denying coverage. Both the union and the individual members bring this appeal from that order.
The following facts are relevant to an understanding of the issues in this case. An economic strike was commenced by the union and its parent international union against Southern Bell Telephone and Telegraph Company. A picket line was established at Southern Bell's North Dade plant facility in Miami, Florida. Horne, a non-union employee of Southern Bell, did not participate in the strike. A scaffolding was erected by the strikers at or adjacent to the plant and a life-like dummy was hung by a noose. On the scaffolding was placed a sign entitled 'Ted Horne, Super Scab'. The next day, the scaffolding and dummy were placed in the back of a pickup truck and were transported to Horne's home in Broward County. A group of persons, including the individual defendants, accompanied the truck to Horne's residence where they made several passes in front of his home.
USF & G initially refused to defend, alleging first that it had been prejudiced by late notice of the pending action; and second, that the policy provided no coverage because of an exclusionary clause which provided in part, as follows:
'This insurance does not apply: (b) to personal injury arising out of the willful violation of a penal statute or ordinance committed by or with the knowledge or consent of any insured.'
By agreement of the parties, the defense of late notice was tried first, prior to the trial of the main action, resulting in a ruling in favor of the union and the individual members. The remaining defense, based upon the exclusionary clause, was to be heard and determined by the court after the trial of the main action.
Counsel for USF & G then announced that it was going to defend the main action on behalf of the union, but not the individual members. Subsequently, counsel for USF & G tendered to the union a letter advising that while USF & G was affording the union a defense, it was doing so under a reservation of rights. The union then delivered to counsel for USF & G, written notification of its refusal to accede to the carrier's defense with a reservation of rights. Nevertheless, counsel for USF & G continued to participate fully in the case and the trial court specifically found in its order that USF & G, immediately following the adverse ruling on the issue of prejudice by late notice, had undertaken the defense of the union.
The first issue to be determined is whether USF & G had a duty to defend plaintiff's second amended complaint on behalf of the union and the individual members. On this issue, Florida law is clear that an insurer's duty to defend an action against its insured by a third person is determined by the allegations of the complaint. Bennett v. Fidelity & Casualty Company of New York, Fla.App.1961, 132 So.2d 788; Consolidated Mutual Insurance Company v. Ivy Liquors, Fla.App.1966, 185 So.2d 187. Moreover, where only portions of a complaint fall within the coverage of the insurance policy and other portions fall outside the policy, the insurer has a duty to defend the entire suit. C. A. Fielland, Inc. v. Fidelity & Casualty Company of New York, Fla.App.1974, 297 So.2d 122; St. Paul Fire and Marine Insurance Company v. Icard, Merrill, Cullis & Timm, Fla.App.1967, 196 So.2d 219.
Looking to the allegations of the complaint, we see that the complaint alleged alternate theories of liability on the part of the union. It first alleged that the individual defendants were members of the union and were acting as its agents, servants or employees. This theory is one of vicarious liability, requiring no willful misconduct on the part of the union. The alternate theory is one of direct liability in that the acts committed by the individual defendants were allegedly caused, procured or directed by defendant union.
We conclude, under the alternate allegation of vicarious liability, that USF & G did have a duty to defend the union. This duty arose on June 2, 1972, when the union first notified USF & G of the pending litigation. Not until January 16, 1974, did USF & G tender a defense to the union. The union is entitled to reimbursement for all necessary expenses, including attorneys fees, which it reasonably expended in the defense of the main action from June 2, 1972. Upon remand of this case, the trial judge below upon hearing after notice shall determine and award...
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