2012

37 Fla. L. Weekly D1604b
98 So. 3d 74

Insurance — All risk business owner’s policy — Coverage — Collapse — Ambiguity — Appeal of summary judgment entered in favor of insurer in declaratory judgment action after trial court concluded that damaged clubhouse, in which the ceiling had dropped twelve inches due to rain water and overweight air conditioning units, was not in a state of “collapse” as that term was defined by the insurance policy — Policy defining “collapse” as an abrupt falling down or caving in of a building, or any part of a building, with the result that the building cannot be occupied for its intended purpose, and covering collapse caused by the weight of people or property and rain water — Argument that policy does not cover loss because the roof had not “fallen” and the building was still standing, is rejected — Policy is not written in terms of how far a building must fall down or to what degree a building must cave in, and policy clearly does not require total destruction for “collapse” to occur — When the trusses failed, the roof above the trusses and the drop ceiling below the trusses deflected downward twelve inches meeting not only the definition of “falling down,” but the definition of “caving in” as well — In addition, all building parts fell inward suddenly and record establishes that building is structurally unsafe and cannot be occupied for its intended purpose — Having found that damage to clubhouse meets definition of collapse under certain paragraph of policy, if appellate court were to accept insurer’s argument that other paragraphs under the covered loss section of policy should be interpreted to avoid coverage, then the policy would be ambiguous and any ambiguity in policy must be resolved in favor of coverage — Exclusions — Exclusions which insurer cites as excluding coverage of damage to clubhouse directly contradict and conflict with the collapse coverage provided in the covered loss section, and is another ambiguity in the policy

37 Fla. L. Weekly D2091a
97 So. 3d 918

Insurance — Contracts — Judicial estoppel — Action by school board against insurance company which provided excess medical insurance coverage for school board students and employees and insurance agency which administered plan under which insurance was provided, alleging breach of contract in that claim for medical bills of school board employee was denied — Where insurance company denied claim on the basis that information regarding employee’s pre-existing condition had not been disclosed to company during application process, and record reflects that insurance agency had received the information regarding the pre-existing condition prior to close of the application process, claims against insurance company and insurance agency were mutually exclusive because either agency failed to submit the information to insurance company or, alternatively, company wrongfully denied coverage — School board was not judicially estopped from continuing action against insurance agency after claim against insurance company had been settled for less than the full amount of damages claimed — In order for judicial estoppel to apply, school board must have “successfully maintained” an inconsistent position in action against insurance company, and inconsistent position cannot be viewed as having been successfully asserted against insurance company where claim was resolved by settlement for less than the full amount of damages sought