Univ. of Miami v. Great Am. Assurance Co.
| Decision Date | 03 May 2013 |
| Docket Number | No. 3D09–2010.,3D09–2010. |
| Citation | 112 So.3d 504 |
| Parties | UNIVERSITY OF MIAMI, Appellant, v. GREAT AMERICAN ASSURANCE COMPANY, etc., Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Isicoff Ragatz & Koenigsberg, and Eric Isicoff and Teresa Ragatz, for appellant.
Anania Bandklayder Baumgarten & Torricella, and Francis A. Anania and Maurice J. Baumgarten, for appellee.
Before WELLS, C.J., and SHEPHERD and SUAREZ, JJ.
The University of Miami (“UM”) appeals an order granting final summary judgment in favor of Great American Assurance Company (“Great American”) in a declaratory action for indemnification of attorney's fees and costs based on breach of a policy of insurance and bad faith. We reverse the final summary judgment in favor of Great American and, based on the facts of the UM claim, find that UM is entitled to be indemnified for attorney's fees and costs incurred in this action.
UM was an additional named insured on a Great American commercial general liability policy insuring MagiCamp, which ran a summer swim camp for kids using the pool on the campus of UM. On July 18, 2000, Daniel Segurola, a four-year-old child, was enrolled as a camper at MagiCamp. He was pulled, unresponsive, from the bottom of the pool and was hospitalized with extensive injuries. His parents sued both MagiCamp and UM claiming the injuries were due to lack of supervision of the campers at the UM pool and that both, MagiCamp and UM, were each directly negligent, and UM also vicariously negligent, for the lack of supervision. Great American retained the services of one law firm to represent both MagiCamp and UM. MagiCamp filed an answer and affirmative defenses alleging that there was an intervening or superseding act, not under the control of MagiCamp, which caused the injuries, and that the resulting damages were caused, in whole or in part, by the fault of persons or entities other than MagiCamp. It is important to note that the only other entity being sued was UM. MagiCamp requested apportionment of damages based on the percentage of fault of the respective defendants and claimed it was entitled to indemnification and contribution from UM for the damages.1 The commercial general liability policy included a condition that the rights or duties applicable to the first named insured, MagiCamp, applied as if each named insured were the only named insured and applied separately to each insured against whom a claim was made.2
On February 12, 2001, the same day that MagiCamp filed its answer and affirmative defenses, UM advised Great American, by way of letter, that there was a conflict of interest in the single representation of both MagiCamp and UM, and UM demanded independent counsel of UM's choice. The letter stated that any negligence which occurred was due to the negligence of MagiCamp and not UM. The insurer took the position that there was no conflict of interest in providing single counsel in the representation of both MagiCamp, as a named insured, and UM, as an additional insured. The insurer refused to provide separate independent counsel for UM. UM retained its own counsel to protect its interest and, after the case was settled, brought this indemnification declaratory action requesting declaration by the trial court that Great American had breached its contractual duty to UM by refusing to provide separate and independent counsel. The declaratory action sought indemnification for the costs of UM's defense, including attorney's fees. In its answer and affirmative defenses, Great American asserted that it had no contractual, legal or professional obligation to provide separate and independent counsel to UM. Both sides moved for summary judgment.3 After significant litigation, and following mediation, cross motions for summary judgment were renewed. Great American took the position that, because MagiCamp was contractually bound to indemnify and hold harmless UM for any liability arising out of the use of its facilities by MagiCamp, there could be no conflict of interest in its single representation by counsel. The trial court granted Great American's motion for final summary judgment and denied UM's request for indemnification of attorney's fees and costs.
An appellate court reviews a summary judgment de novo to determine whether, after viewing every inference in favor of the non-moving party, there is any genuine issue of material fact; if not, the appellate court must determine whether the moving party is entitled to judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Building Educ. Corp. v. Ocean Bank, 982 So.2d 37 (Fla. 3d DCA 2008).
UM argued below and contends on appeal that there was a conflict of interest between MagiCamp and UM, as evidenced by the allegations in the pleadings, whereby the plaintiffs claimed both MagiCamp and UM were directly negligent and, whereby each defendant alleged that it was relieved of its separate responsibility for damages due to the negligence of the other defendant.
The precise question presented by this appeal and these facts has not been answered directly in Florida. Simply stated, the question presented is whether in this factual scenario, where both the insured and the additional insured have been sued, and the allegations claim that each is directly negligent for the injuries sustained, a conflict between the insured and the additional named insured exists that would require the insurer to provide separate and independent counsel for each. We answer the question affirmatively.
The duty of an insurance company to participate in an action and defend is determined by the allegations in the complaint. New Amsterdam Cas. Co. v. Knowles, 95 So.2d 413 (Fla.1957); Fed. Ins. Co. v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979). An insurer's conflict of interest in the duty to defend is determined properly on summary judgment. See All–Star Ins. Corp. v. Steel Bar, Inc., 324 F.Supp. 160 (N.D.Ind.1971).
UM relies on the following authorities, contending that Great American breached its duty under the policy to provide independent and separate counsel where there exists a conflict of interest between the insureds: See, e.g., Williams v. Am. Country Ins. Co., 359 Ill.App.3d 128, 295 Ill.Dec. 765, 833 N.E.2d 971, 980 (2005) (); Wolpaw v. Gen. Accident Ins. Co. v. Parker, McCay & Criscuolo, 272 N.J.Super. 41, 639 A.2d 338, 340 (1994) (); Bituminous Ins. Cos. v. Pa. Mfrs.' Ass'n Ins. Co., 427 F.Supp. 539 (E.D.Pa.1976) (). We agree with UM's position.4 Although no question of coverage or excess policy limits, upon which to base a conflict of interest, exists in this case, since coverage has been agreed to by the parties, the pleadings and record evidence on summary judgment create a conflict, not on coverage, but on legal defenses based upon the record facts.
In the case before us, there exists a conflict in the co-defendants' legal defenses, based on the allegations of the complaint, that each defendant is directly liable, and the allegations in the answer and affirmative defenses set forth by MagiCamp and UM. MagiCamp answered and asserted the affirmative defense that, as alleged, through no fault of its own, but through the fault of another entity, UM, the minor camper was injured, for which it was entitled to indemnification and contribution; and conversely, UM presented its position by way of letter, that, through no fault of its own, but through the fault of MagiCamp, the camper was injured. These allegations create diverse legal positions that are inherently adverse. These conflicting legal positions presented in defense to individual active negligence claims against MagiCamp and UM exist separate and apart from issues of coverage or excesspolicy limits.5 In this case, single defense counsel was provided by Great American to defend both MagiCamp and UM and to present adverse legal theories. There exists no factual dispute, as evidenced by the record, that, in defense of both co-defendants, Great American's counsel would have had to argue conflicting legal positions, that each of its clients was not at fault, and the other was, even to the extent of claiming indemnification and contribution for the other's fault. In so doing, legal counsel would have had to necessarily imply blame to one co-defendant to the detriment of the other. On these facts, we believe this legal dilemma clearly created a conflict of interest between the legal defenses of the common insureds sufficient to qualify for indemnification for attorney's fees and costs for independent counsel. Graci v. Denaro, 98 Misc.2d 155, 413 N.Y.S.2d 607 (N.Y.Sup.Ct.1979); 14 Couch on Ins. § 202.24 (3d ed. 2012).
Therefore, summary judgment in favor of Great American on the issue of indemnification of attorney's fees and costs for independent counsel is reversed.
Reversed and remanded.
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