13 Fla. L. Weekly Supp. 563b
Insurance — Liability — Joinder of insurer in action against insured — No error in denial of motion to add condominium unit owner’s liability insurer as party defendant prior to entering final judgment on complaint for injunction allowing condominium association access to unit to determine and repair water leak — Policy covered damages for bodily injury or property damage caused by occurrence to which policy coverage applied and defined “occurrence” as an accident which resulted in bodily injury or property damage — Complaint for injunction which sought only access to condominium unit to determine and make necessary repairs caused by water leak did not state claim for property damage — Insurer was not obligated to defend owner in action that was not covered under policy — Insured went beyond scope of complaint in stipulation for settlement by agreeing to accept full liability for property damage and to compensate association for fees incurred in injunction action — Language of statute authorizing joinder of liability insurer is discretionary not mandatory
GARY THOMPSON, HEATHER NICHOLSON, AND SUSAN TOTH, Appellants, v. TRAFALGAR TOWERS ASSOCIATION, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 05-9334 (05). March 2, 2006.
ORDER AND OPINION
(RICHARD D. EADE, J.) THIS CAUSE comes before the Court upon Appellant’s, Gary Thompson, Appeal of the Final Judgment entered by the trial court approving a Stipulation for Settlement with the Appellee and a denial to add Southern Family Insurance Company as a party defendant prior to entering the Final Judgment. Having reviewed the appellate file, considered applicable law and being otherwise advised in the premises, the Court finds and decides as follows:
Appellant owned a condominium unit at Trafalgar Towers, and rented it out to Heather Nicholson and Susan Toth. On June 28, 2004, the tenants notified Appellant about a water leak. Appellant hired several repair companies to determine the source of the water leak over the course of a month. Trafalgar Towers Association served the tenants with a Complaint for Injunctive Relief and a Motion for Emergency Injunctive Relief on July 30, 2004. The Motion for Emergency Injunctive Relief was granted on August 2, 2004, and the Association was granted access to the Appellant’s unit the next day. The matter continued, and Appellant entered into a Stipulation for Settlement with the Association. Appellant also filed a Motion to Add Southern Family Insurance Company [hereinafter referred to as Southern] as Party Defendants and a Motion for Entry of Final Judgment. The trial court denied Appellant’s Motion to Add Southern as Party Defendants.
On appeal, Appellant argues that the trial court erred in denying his Motion to Add Southern as Party Defendants because the insurance company waived any coverage defenses once it admitted Appellant’s property damages claim. Issues pertaining to insurance coverage present questions of law subject to de novo review. Herrera v. C.A. Seguros Catatumbo, 844 So.2d 664 (Fla. 3rd DCA 2003).
Appellant first contends that section 627.4136(4) of the Florida Statutes required the trial court to add the insurance company as a party defendant. Florida Statute §627.4136(4) states that “[a]t the time a judgment is entered or a settlement is reached during the pendency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by the motion of any party.” The language in the statute is discretionary instead of mandatory; therefore, the trial court was not required to join the insurance company as a party defendant.
Second, Appellant contends that the insurance company’s conduct waived any coverage defenses it may have after it admitted Appellant’s property damages claim because it operates as a concession of liability under the policy with Appellant.
Florida Statute §627.4136(1) states that the cause of action must be covered by the policy. The insurance policy with Southern covers claims or suits against the insured party for damages because of “bodily injury” or “property damage” caused by an “occurrence” to which policy coverage applies. Southern defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period in: a. ‘bodily injury’; or b. ‘property damage.’ ”
Here, the complaint that Trafalgar Towers Association filed a complaint against the Appellant was for an injunction, and the relief sought was for access to the condominium unit to determine and make necessary repairs caused by the water leak. The complaint does not state a claim for property damage, and the record shows that such a claim was never added. In Appellant’s Stipulation for Settlement with Trafalgar Towers Association, Appellant agreed to accept full liability to the property damage and to compensate the association for fees incurred in the Injunction action. The Stipulation went beyond the scope of the complaint because the association only sought access to the condominium unit.
Appellant contends that the trial court erred by not including Southern as a liability insurer because the litigation matter with the association was not finished, and the association was claiming that Appellant was responsible for the water damages. Because of this, Appellant states that his interest had to be defended and that Southern was obligated to provide such defense.
A liability insurer’s obligation to defend a claim must be determined solely from the allegations in the complaint. State Farm Casualty Co. v. Higgins, 788 So.2d 992 (Fla. 4th DCA 2001). The allegations listed in the complaint must create potential coverage under the insurance policy. Hunzinger Construction Corporation v. Quarels & Brady General Partnership, 735So.2d 589 (Fla. 4th DCA 1999). As evidenced by the pleadings in this matter, Trafalgar Towers Association only sought injunctive relief. The case ended with a Stipulation for Settlement that included liability for the property damage. Southern was not obligated to defend Appellant in the action because it was not covered under the policy. Therefore, this Court upholds the trial court’s decision in denying Appellant’s Motion to Add Southern as Party Defendants.
The Appellant’s Motion for Attorney’s Fees is also before this Court. This Court denies the Appellant’s request for Appellate Attorney’s Fees because Appellant is not the prevailing party on appeal pursuant to Florida Rule of Appellate Procedure 9.400.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Final Judgment entered by the trial court is AFFIRMED.
ORDERED AND ADJUDGED that the Appellant’s Motion for Appellate Attorney’s Fees is DENIED.
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