25 Fla. L. Weekly Supp. 36a

Online Reference: FLWSUPP 2501MCNEInsurance — Workers’ compensation — Liability — Intentional acts — Duty to defend — Insurer that provided workers’ compensation and employer liability coverage to its insured had duty to defend its insured in suit brought against it by estate of deceased employee where complaint alleged sufficient facts to create potential coverage under policy — Insurer failed to prove that allegations in every iteration of underlying complaints demonstrated that employer intended to cause harm to decedent or that any other policy exclusions relied upon by insurer to bar were a bar to coverage

MCNEILL LABOR MANAGEMENT, INC., a Florida Corporation, Plaintiff, v. FCCI INSURANCE COMPANY, a Florida Corporation, and STAR INSURANCE COMPANY, a Delaware limited liability company, Defendants. Circuit Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2015CA004607NC. March 13, 2017. Frederick P. Mercurio, Judge. Counsel: Mark A. Boyle and Ellen G. Smith, Boyle & Leonard, P.A., Fort Myers; and Jason Hunter Korn and Marshall P. Bender, Cohen & Grigsby, P.C., Naples, for Plaintiff. Chad W. Bickerton and Robert M. Darroch, Goodman McGuffey LLP, Sarasota, for Defendant FCCI Ins. Co.; and Lauren S. Curtis and Bradley T. Guldalian, Traub, Lieberman Straus & Shrewsberry, LLP, St. Petersburg, for Defendant Star Ins. Co.

ORDER GRANTING PLAINTIFF’S CROSS-MOTIONFOR SUMMARY JUDGMENT AND DENYING FCCIINSURANCE COMPANY’S MOTIONFOR SUMMARY JUDGMENT

This matter having come before the Court on March 7, 2017, upon Defendant FCCI Commercial Insurance Company’s (“FCCI”) Motion for Summary Judgment and Plaintiff McNeill Labor Management Inc.’s (“McNeill”) Cross-Motion for Partial Summary Judgment as to the matters regarding FCCI’s duty to defend McNeill as each version of the Complaint filed against McNeill in ATG Trust Company, as Administrator or the Estate of Humberto Sanchez, Deceased, v. McNeill Labor Management, Inc., et al., Case No. 13-L-90, La Salle County, Illinois.

IT IS HEREBY ORDERED AND ADJUDGED as follows:UNDISPUTED MATERIAL FACTS

On or about July 12, 2013, ATG Trust Company, as Administrator of the Estate of Humberto Sanchez (the “Administrator”), filed a civil suit against McNeill Labor Management, Inc. (“McNeill”) and another defendant in La Salle County, Illinois, under Case No. 13-L-90 (“The Underlying Complaint”). The court in the Underlying Action granted McNeill’s motion to dismiss the claims against McNeill on February 25, 2014. The Administrator filed its Amended Complaint on April 28, 2014. McNeill moved to dismiss the Amended Complaint. The Administrator then filed a Second Amended Complaint on September 24, 2014 containing almost identical claims as that of the original Underlying Complaint that the court already dismissed. The case settled before rulings occurred on that iteration of the Underlying Complaint.

FCCI issued McNeill 001-WC11A-63611 proving worker’s compensation and employer’s liability coverage for work performed in Georgia, Illinois, Indiana, and Wisconsin (the “Multi-State policy”) for the time period of January 1, 2011 through January 1, 2012. McNeill is the named insured on the Multi-State Policy. The death of Mr. Sanchez occurred in Illinois during the Multi-State Policy period. Pursuant to FCCI’s affidavit of Frank Zayas filed July 18, 2016, FCCI admits the Multi-State Policy covers McNeill for work performed in Illinois.

McNeill tendered its defense of each iteration of the Underlying Complaints to FCCI. FCCI initially recognized its duty to defend and hired McNeil representation. On September 13, 2013, FCCI withdrew its defense of McNeill and indicated FCCI was not obligated to provide insurance coverage or defense of the claims against McNeill. FCCI again denied a defense to McNeill after the filing of the Amended and Second Amended Underlying Complaint.

RULINGS OF LAW

If the complaint alleges facts which are partially within and partially outside of coverage of the policy, the insurer is obligated to defend the entire lawsuit. Tropical Park, Inc. v. United States Fid. & Guar. Co., 357 So. 2d a253, 256 (Fla. 3d DCA 1978); Grissom v. Comm. Union Ins. Co., 610 So. 2d 1299, 1307 (Fla. 1st DCA 1992). So long as the complaint alleges facts which create potential coverage under the policy, the insurer must defend. See Tropical Park, 357 So. 2d at 256; McCreary v. Florida Residential, 758 So. 2d 692 (Fla. 4th DCA 1999) [25 Fla. L. Weekly D380b]. Exclusionary clauses are typically read strictly and in a manner that affords the insured the broadest possible coverage. Indian Harbor Ins. Co. v. Williams, 998 So. 2d 677, 678 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D186a].

Injury caused by an intentional act can be an “accident” under Florida law as long as the insured did not expect or intend for damages to result from his intentional acts. See State Farm Fire and Cas. Co. v. CTC Dev. Corp., 720 So. 2d 1072 (Fla. 1998) [23 Fla. L. Weekly S527a]. “[T]ort law principles do not control judicial construction of insurance contracts. . . .Thus, intentional act exclusions are limited to the express terms of the policies and do not exclude coverage for injuries more broadly deemed under tort law principles to be consequences flowing from the insured’s intentional acts.” Travelers Indem. Co. v. PCR, Inc., 889 So. 2d 779, 793 (2004) [29 Fla. L. Weekly S774a]; quoting Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So. 2d 467, 470 (1993). Intentional act exclusions are not a bar to insurance coverage for liability arising from claims brought under the objectively, substantially certain to result in injury exception. Travelers, 889 So. 2d at 781. The key distinction is whether the employer intended to cause the harm, not whether the employer intended the action. See id.; Swindal, 622 So. 2d at 472 (intentional acts exclusion did not bar coverage where insured approached another with a loaded handgun, got into an altercation with that individual during which the gun discharged and severely injury the individual; insured testified he did not intend to shoot and cause harm to the person); Phoenix Ins. Co. v. Helton; 298 So. 2d 177 (Fla. 1st DCA 1974)(exclusionary clause did not bar coverage because the insured did not intend to injure others even though insured intentionally drove his car into a crowd of people); See Gorham v. Zachry Industrial Inc., 105 So. 3d 629, 634 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D183a](“[T]he mere knowledge and appreciation of a risk-something short of substantial certainty — is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.”); See Boston v. Publix Super Market, Inc., 112 So. 3d 654, 657 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D959b] (“the statute provides an exceptionally narrow exclusion from immunity, requiring intentional, deceitful conduct on the part of the employer.”); See List Industries, Inc. v. Dalien, 107 So. 3d 470, 471 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D186a] (“The change from ‘substantial certainty’ to ‘virtually certain’ is an extremely different and manifestly more difficult standard to meet. It would mean that a plaintiff must show that a given danger will result in an accident every — or almost every — time.”); See Vallejos v. Lan Cargo, S.A., 116 So. 3d 545 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D1360a] (“the failure to train or warn of obvious dangers does not amount to concealing or misrepresenting the danger so as to prevent [the employee] from exercising informed judgment”). One of the allegations in the Underlying Complaints is that McNeill intentionally caused harm because he did not train his employees to deal with heat management conditions. However, the courts have specifically held that failure to train does not amount to an intentional act to avoid coverage under Florida Statute §440.11(1)(b). See Vallejos, 116 So. 3d at 555.

FCCI has failed to prove that the allegations in every iteration of the Underlying Complaints demonstrate that McNeill intended to cause the harm to Mr. Sanchez or that any of the other policy exclusions relied upon by FCCI are a bar to coverage and thus a basis to deny McNeill a defense against the Underlying Complaints. FCCI owed McNeil a duty to defend and consequently FCCI breached its duty to defend McNeill. “If the allegations of the complaint leave any doubt as to the duty to defend, the question must be resolved in favor of the insured.” Mid-Continent Cas. Co. v. Royal Crane, LLC, 169 So. 3d 174 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1371c]; quoting Lime Tree Vill. Cmty. Club Ass’n v. State Farm Gen. Ins. Co., 980 F. 2d 1402, 1405 (11th Cir. 1993).CONCLUSION

FCCI owed McNeill a duty to defend each version of the Underlying Complaint in ATG Trust Company, as Administrator or the Estate of Humberto Sanchez, Deceased, v. McNeill Labor Management, Inc., et al., Case No. 13-L-90, La Salle County, Illinois under the Multi-State Policy. McNeill’s Cross-Motion for Summary Judgment is hereby GRANTED. FCCI’s Motion for Summary Judgment is DENIED.