2003

28 Fla. L. Weekly D853a

Insurance — Liability — Declaratory judgment — Coverage — Trial court improperly denied airline passengers’ motion for supplemental declaratory relief seeking a declaration that airline’s liability policy covered a jury verdict against the airline arising from a forcible strip/cavity search that took place after the passengers were removed from aircraft during a stopover — No merit to insurer’s contention that policy afforded no coverage to plaintiffs because they were not passengers after they were removed from the aircraft and placed in a terminal bathroom where they were cavity searched, because insurer may still be liable to plaintiffs under coverage provided by policy to third parties — No merit to insurer’s contention that no bodily injury occurred under terms of the policy — Plaintiffs, having suffered from physical intrusions and emotional consequences therefrom, sufficiently demonstrated that they suffered a bodily injury under the policy — No merit to insurer’s contention that there was no coverage under policy because injuries did not occur as the result of an accident — Where term “accident” is not defined in policy, resulting damage which is unintended is accidental even though the original acts were intentional — Even though airline employees intentionally had plaintiffs removed from the aircraft, there is no evidence that employees intended physical harm, so while permitting the searches was negligent, it was also an accident — Malicious acts provision — Claim that plaintiffs cannot recover any damages under policy because policy contains an exclusionary provision disallowing coverage for malicious acts, which insurer argues is inherent in all three of plaintiffs’ theories of recovery in underlying action: intentional infliction of emotional distress, negligence, and false imprisonment — Malice was not implicit in all three theories and there was no allegation of malice on the negligence count, nor was it implicit in the punitive damage awards, which were authorized by the jury instruction where the defendant was grossly negligent — Neither the negligence claim nor the damage stemming from it was excluded from coverage by the policy’s malicious acts provision — Because the entire amount awarded may have been on the negligence claim, the general verdict on the plaintiffs’ three claims does not preclude recovery — Because the insurer made no effort to have the final disposition result in a verdict that would provide a basis for consideration of the exclusionary clause, plaintiffs are entitled to recover the unsegregated damage awards on all three of their claims

28 Fla. L. Weekly D2128a

Insurance — Liability policy issued to airport authority — Duty to defend — Exclusions — Bodily injury arising out of auto owned or operated by or on behalf of insured while off airport — Insurer had no duty to defend airport authority in wrongful death action brought against it by estate of individual who landed at airport, hired a car which was operated by shuttle service which had facility in airport terminal and which was driven by shuttle service employee, and was killed in collision which occurred off airport premises where allegations against authority rested on theory that shuttle service and its employees were apparent agents of authority — Fact that phrase “on behalf of” was not defined did not in itself mean that term was ambiguous — Operating vehicle “on behalf of” authority encompasses alleged agency theory, and exclusion bars coverage

NOT FINAL VERSION OF OPINION
Subsequent Changes at 28 Fla. L. Weekly D2128a

28 Fla. L. Weekly D1487a

Insurance — Liability policy issued to airport authority — Duty to defend — Exclusions — Bodily injury arising out of auto owned or operated by or on behalf of insured while off airport — Insurer had no duty to defend airport authority in wrongful death action brought against it by estate of individual who landed at airport, hired a car which was operated by shuttle service which had facility in airport terminal and which was driven by shuttle service employee, and was killed in collision which occurred off airport premises where allegations against authority rested on theory that shuttle service and its employees were apparent agents of authority — Fact that phrase “on behalf of” was not defined did not in itself mean that term was ambiguous — Operating vehicle “on behalf of” authority encompasses alleged agency theory, and exclusion bars coverage

28 Fla. L. Weekly D1146e

Insurance — Homeowners — Coverage — Declaratory judgment — Exclusions — Intentional or criminal act — Joint obligations — Action arising out of incident in which insureds’ minor son shot plaintiff in underlying personal injury action with firearm which belonged to insureds — Under clear and unambiguous language of joint obligations clause contained in policy, parents and son must be treated as a joint and inseparable legal entity, so that the intentional or criminal act of son, in essence, became the act of the parents for purposes of coverage under policy — Plaintiff cannot bypass intentional or criminal act exclusion clause by suing parents for the negligent supervision or negligent failure to safely store firearm — Concurrent cause doctrine would not support coverage where, based on record, appellate court is unable to say that alleged acts of negligent supervision and failure to properly secure firearm were sufficiently separate and distinct from son’s act of shooting victim with firearm — Trial court properly granted insurer’s motion for judgment on pleadings, finding that insurer had no duty to defend or indemnify insureds or their son in personal injury action

28 Fla. L. Weekly D2221a

Insurance — Homeowners — Exclusions — Trial court properly found that coverage for structural damage to home and personal property loss caused by nearby blasting activities was excluded by earth movement exclusion in policy — Under policy language, damage resulting from explosion would be covered only if the explosion followed a specifically listed natural disaster or peril, and the damage in question was caused by man-made explosions

28 Fla. L. Weekly D2850a

Administrative law — Department of Management Services — Insurance — Public employees — State group health insurance — Exclusions — Intentional self-inflicted injury — Employee alleging that denial of health benefits to her and her daughter for medical services required as result of intentionally self-inflicted injuries violated constitutional rights to substantive due process and equal protection — State’s interest in protecting public funds was rational basis which justified exclusion — Keeping costs at an affordable level is legitimate state interest — Denial of health benefits affirmed

28 Fla. L. Weekly D1319a

Insurance — Employee Dishonesty Policy — Coverage — Where coverage period for plaintiff insured law firm’s Employee Dishonesty Optional Coverage policy had ended in 1999 and defalcating employee’s dishonesty was not discovered until 2001, and the policy provided only for coverage of loss discovered within 90 days of the end of the coverage period, trial court improperly entered summary judgment in favor of insured plaintiff

28 Fla. L. Weekly D1867b

Insurance — Liability — Duty to defend — Exclusions — There is no obligation on an insurer to defend an action against its insured when the complaint shows the applicability of a policy exclusion — Complaint alleging that insured violated section 934.03, Florida Statutes and invaded plaintiffs’ privacy rights by intercepting their oral communications without their consent stated claims that were within the policy exclusion for “any claim for injury arising out of a willful violation of a penal statute or ordinance committed by or with the knowledge of the insured” — Trial court erred in entering declaratory judgment finding that insurer had duty to defend claims

28 Fla. L. Weekly D632c

Insurance — Professional liability — Coverage — Duty to defend — Exclusions — Dispute between former partners in law firm over how to divide fees and costs received from lawsuit was not an “act, error or omission in Professional Services provided” within meaning of policy — Dispute over how law firm was to divvy up fees and expense payments “pertained” to firm’s “charges for services or expenses” within meaning of policy language excluding those matters from the definition of professional services — Because amended complaint did not allege facts that created potential coverage under policy, insurer had no duty to defend

28 Fla. L. Weekly D2653a

Insurance — Liability — Duty to defend and indemnify insureds in civil suit brought alleging negligence and sexual assault and battery — Allegations in sixth amended complaint filed against insureds in underlying tort action determine insurer’s duty to defend where that complaint did not expressly state an intent to preserve portions of previously filed fifth amended complaint — Exclusions — Intentional acts — Bodily injury which is expected or intended, or willful and malicious — Where plaintiff in underlying suit alleged that she was drugged without her knowledge with GHB, that she became incapacitated and was caused to engage without her consent in sexual acts in parking lot of nightclub in early morning hours, and that insureds knew or should have known she was incapacitated by a drug placed in her drink by insureds or a third party, her allegation that insureds may neither have expected nor intended the resultant harm, bodily injury, or damage, was unreasonable and illogical — Policy at issue does not provide insurance coverage for “negligent rape” or sexual assault of an incapacitated adult — Public policy dictates against insuring for losses from intentional or criminal acts, since this would shift financial burden of loss from wrongdoer to insurer — Because no coverage exists, trial court erred in entering final judgment for insureds