Western World Ins. Co., Inc. v. Cigna Corp.

• Citation: 718 F. Supp. 1518
• Decision Date: 28 August 1989
• Docket Number: No. 87-12008-CIV.,87-12008-CIV.
• Parties: WESTERN WORLD INSURANCE COMPANY, INC., Plaintiff, v. CIGNA CORPORATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

718 F. Supp. 1518

WESTERN WORLD INSURANCE COMPANY, INC., Plaintiff, v. CIGNA CORPORATION, et al., Defendants.

No. 87-12008-CIV.

United States District Court, S.D. Florida.

August 28, 1989.

William L. Petros, Miami, Fla., for plaintiff.

William S. Reese, Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, Miami, Fla., for Aetna and Cigna.

David L. Weinstein, Fischel & Kahn, Ltd., Chicago, Ill., for Collier County.

FINAL SUMMARY JUDGMENT

ARONOVITZ, District Judge.

THIS CAUSE came before the Court upon Defendant Collier County's Motion to Dismiss; Plaintiff's Motion for Summary Judgment; and Defendants Aetna and Cigna's Motion for Summary Judgment.

THE COURT has considered the motions and the pertinent portions of the record. A hearing was held March 6, 1989 at which counsel for all parties were present and heard. At the hearing, the parties were ordered to file a joint statement of undisputed fact consistent with S.D.Fla.Gen.R. 10.J., and to supplement and update their motions. The parties have filed supplemental memoranda which have also been considered by the Court.

Nature of the Action

Plaintiff, Western World Insurance Company, Inc. (hereinafter referred to as "Western World"), is seeking declaratory relief from the Court to determine the rights and liabilities of Plaintiff and Defendants Aetna Fire Underwriters Insurance Company and Cigna Corporation,¹ regarding insurance coverage provided to Collier County with respect to two suits: Cannan et al. v. Avitar Properties, Inc., etc. and Collier County, Case No. 85-2036-CA-01-WCM; and Nickel et al. v. State of Florida Department of Transportation, County of Collier, et al., Case No. 86-1445-CA-01-CTC; both in the 20th Judicial Circuit Court for Collier County, Florida. In the sole claim now before this Court, Western World seeks a determination that the coverage its policy provided to Collier County was excess over the coverage provided to the County by Aetna/Cigna. Western World seeks reimbursement from Aetna/Cigna for the cost of defending Collier County in the Cannan and Nickel actions.² Aetna/Cigna has denied any coverage to Collier County. Western World concedes that the allegations in both the Cannan and Nickel complaints would require it to provide a defense in the absence of other primary insurance.

Stipulated Facts

The following facts were stipulated to and submitted by the parties:

1. By letter dated September 24, 1985, Collier County notified Aetna of the initial complaint in Cannan, and of the possibility that a claim might later be made against the County.

2. By letter dated October 9, 1985, Aetna denied coverage and refused to defend the County in connection with the initial complaint in the Cannan suit.

3. Aetna denied coverage and refused to defend Collier County in the amended Cannan complaint based on its view that the amended complaint did not allege bodily injury, personal injury, property damage or an occurrence.

4. On April 23, 1988, a second amended complaint was filed in the Cannan action.

5. By letter dated July 11, 1989, Collier County notified Aetna and tendered its defense in connection with the initial first amended complaint in the Nickel suit.

6. By letter dated July 30, 1986, Aetna acknowledged the County's notice of the Nickel suit and advised that it would investigate under an unspecified reservation of rights.

7. By letter dated August 25, 1986, Aetna denied coverage and refused to defend Collier County in the Nickel suit.

8. By letter dated September 24, 1986, Collier County notified Aetna of the second amended complaint in Nickel.

9. By letter dated October 6, 1986, Aetna denied coverage and refused to defend the County in the second amended complaint in Nickel.

10. On February 5, 1987, the Nickel plaintiffs voluntarily dismissed their suit against Collier County, without prejudice.

11. On August 17, 1988, six of the Cannan plaintiffs voluntarily dismissed their claims against Collier County pursuant to a settlement agreement. On August 18, 1988, a Final Judgment was entered against the remaining Cannan plaintiff. No appeal followed.

12. The allegations in Cannan and Nickel required Western World to provide a defense to Collier County in those actions.

13. The terms (other than policy limits) of the Aetna policy (No. CPP 44 24 48) and the Cigna policies (GPP DO 96 86 18 6 and GPP DO 76 80 02 8) are the same.

Collier County's Motion to Dismiss

Collier moves to be dismissed from the lawsuit on the ground that the Court no longer has subject matter jurisdiction. Western World initially included the County as a defendant because it was currently defending the County in the subject lawsuits. Those suits have since been concluded, and the only outstanding claim Western World has is against Aetna/Cigna. Because there is no controversy, the Court has no jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201. Emory v. Peeler, 756 F.2d 1547, 1551-1552 (11th Cir.1985).

The Summary Judgment Motions

Aetna/Cigna's policy provides general liability coverage, and primary insurance therefor. Western World's policy is an officers and directors' insurance policy. If another carrier provides primary coverage, Western World's policy provides excess coverage only. Western World argues that Aetna/Cigna's policy provided coverage for the subject suits, and therefore Aetna/Cigna had a duty to defend the County. Aetna/Cigna argues that the events as alleged in the complaints did not fall under its policy coverage. The issue, then, is whether Aetna/Cigna had a duty to defend Collier County in the subject suits.

Law Applicable to Both Cases

Whether Aetna/Cigna should have defended these suits is determined by the "duty to defend" doctrine. A duty to defend is broader than a duty to indemnify; thus, Aetna/Cigna may have a duty to defend even though the subject incident did not actually fall under the terms of its policy. The Eleventh Circuit in Trizec Properties, Inc. v. Biltmore Construction summarized Florida law on the rule:

The duty to defend depends solely on the allegations in the complaint filed against the insured. The complaint must allege facts which fairly bring the case within coverage even though ultimately there may be no liability on the part of the insured. If the complaint alleges facts partially within and partially outside the scope of coverage the insurer is obligated to defend the entire suit. The duty to defend is separate and apart from the duty to indemnify and the insurer may be required to defend a suit even if the later true facts show there is no coverage. All doubts as to whether a duty to defend exists are resolved against the insurer and in favor of the insured, and if the complaint alleges facts which create potential coverage under the policy, the duty to defend is triggered.

767 F.2d 810, 811-812 (11th Cir.1985).

Aetna/Cigna's policies with the County contained this language relevant to their duty to defend/indemnify (italics in original):

If you or another insured has a legal responsibility to pay a claim someone made based on bodily injury, personal injury or property damage resulting from an occurrence, we will pay that claim if it is covered under this policy.

(Aetna Policy, at 22). Occurrence is defined (in the definitions section of the policy) as follows:

... an accident, including continuous or repeated exposure to the same event, that results, during the policy period, in loss or damage to your property, or bodily injury, personal injury, or property damage. Such injury or damage must be neither expected nor intended by the insured.

(Aetna policy at 35.) "Accident" as defined in the definitions section

means a sudden, unforeseen, unintended, event. (Aetna policy at 33.)

Western World argues that the underlying complaints must allege that Collier County specifically intended to injure, or intended to harm, before the limitation applied. It argues that intending to act, with the act resulting in harm, is not enough. It relies on Allstate Insurance Company v. Steinemer, 723 F.2d 873, 875 (11th Cir. 1984):

The exclusion rule applies if the insured intended to do a particular act, and intended to do some harm, even if the harm actually done was radically different from that intended.... On the other hand, an "intentional injury" exclusion will not apply if the insured intentionally does an act, but has no intent to commit harm, even if the act involves the foreseeable consequences of great harm or even amounts to gross or culpable negligence.³

The Cannan lawsuit

The Cannan case was a class action brought by property owners whose land was adjacent to a canal. When the canals were built, "spoil banks" were created along the canal edge. The plaintiffs alleged that Collier County, in conjunction with several businesses, conspired to wrongfully and through deceptive and fraudulent means remove the spoil banks from the plaintiffs' property. The issue thus presented here is whether the Cannan complaint alleges that the County intended to remove the spoil banks from the plaintiffs' property, knowing that the banks were on the plaintiffs' property.

Western World argues that paragraph 17 of the complaint is the relevant section, and that it does not evidence an intent to harm:

17. The acts complained of herein were done willfully, wantonly and maliciously and were either criminal in nature or bordered upon being criminal and/or were calculated and/or intentional all of which resulted in harm to the plaintiff.

Western World places much reliance on the words "which resulted in harm." It argues that this language indicates that the complaint alleges that an act was intended, not the harm which only resulted.

The words "resulted in harm" certainly cannot be argued to import that "intent to harm" could not have been alleged. However, Western World contends that nowhere in the complaint are allegations that the harm was intended.

Aetna/Cigna argues that such an intent is...