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Insurance Law Report: March 2016

March 15, 2016

Insurance Law Report focuses on developments in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas and Virginia.

Below are the articles for the March issue. To view, click on the appropriate title and you will be brought to the full version of the article below.


Alabama Supreme Court Holds Mysterious Disappearance Exclusion in All-Risk Boat Policy Unambiguous
The Alabama Supreme Court reversed and remanded a trial court’s grant of summary judgment in favor of a conservator of a sailboat owner’s estate related to a claim for a lost sailboat under an all-risk boat insurance policy. St. Paul Fire & Marine Ins. Co. v. Britt, 2016 WL 360654 (Ala. Jan. 29, 2016).

The conservator filed a claim for a lost sailboat under an all-risk policy after the sailboat and its owner disappeared. The insurer denied coverage on the grounds there was no evidence of an “accidental direct physical loss or damage” that would trigger coverage and because the disappearance fell under the policy’s mysterious disappearance exclusion. The insurer argued the claim fell within the mysterious disappearance exclusion because there was no evidence as to what happened to the sailboat. The conservator sued the insurer. The insurer filed a motion for summary judgment on the breach of contract and bad faith claims, and the conservator filed a motion for partial summary judgment on the breach of contract claim. The trial court granted the conservator’s motion for partial summary judgment, denied the insurer’s motion for summary judgment and found the bad faith claim moot.

On appeal, the Alabama Supreme Court assumed, without deciding, that the conservator carried his burden of showing the loss was, absent an exclusion, covered and considered whether the mysterious disappearance exclusion applied. The Supreme Court found that an ordinary person would interpret the phrase “mysterious disappearance” to mean the circumstances surrounding the disappearance are unknown, puzzling or baffling as to make the disappearance inexplicable and held the mysterious disappearance exclusion unambiguous.

The Court concluded there was no evidence to support a theory as to what happened to the sailboat and that the insurer carried its burden of showing the claim fell within the exclusion. It also considered whether the mysterious disappearance exclusion conflicted with a provision that required the insurer to provide coverage when the boat had been lost for more than 30 days. The Court concluded the provision, when read in conjunction with the mysterious disappearance exclusion, did not render coverage illusory. The Court reversed and remanded for the trial court to enter summary judgment in favor of the insurer.
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Mississippi Supreme Court Holds Water Exclusion Policy Precludes Coverage for Damage Caused by Surge
The Mississippi Supreme Court upheld a trial court’s grant of summary judgment in favor of an insurer on the basis that destruction of an insured’s beachfront home by a barge would not have occurred in the absence of water so that the exclusion under the homeowner’s policy for loss caused by water precludes coverage. Porter v. Grand Casino of Mississippi, Inc., 2016 WL 82468 (Miss. Jan. 7, 2016).

The insured’s home was destroyed when a barge came loose from its moorings and collided with her home. The insured made a claim under her homeowner’s policy, which excluded loss caused by wind or water damage, as well as loss that would not have occurred in the absence of an excluded event. The policy stated:

We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events … Water Damage, meaning: (1) flood, surface water, waves, tidal water, tsunami, seiche, overflow of a body of water, or spray from any of these, all whether driven by wind or not….

The policy additionally excluded “loss resulting directly or indirectly from windstorm or hail.” The insured’s policy did not include an anti-concurrent causation clause, which excludes loss caused directly or indirectly by flood, regardless of any other cause or event contributing concurrently or in any sequence to the loss. The insurer denied coverage, and the insured sued the insurer for bad faith denial of coverage and negligence in issuing the policy.

The Mississippi Supreme Court found that the policy excluded coverage both from wind damage and loss caused by water damage. The insured maintained that her home was destroyed by the barge, but the Court found the barge would not have collided with the insured’s home without the presence of water, finding that the policy wording “we do not insure under any coverage for any loss which would not have occurred in the absence of … [w]ater damage” could not be construed to mean that debris in a storm surge, an uncovered loss, would be covered when water caused the debris to collide with the property.
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Mississippi Supreme Court Holds Policy Void Where Insured Warranted No Other Regular Driver
The Mississippi Supreme Court reversed a partial denial of summary judgment in favor of an insurer, finding the insured’s policy void because her boyfriend was a regular driver of her vehicle, despite her warranty that there were no other regular drivers. Safeway Ins. Co. v. Dukes, 2015 WL 8481604 (Miss. Dec. 10, 2015).

An insurer sought declaratory judgment in an action against its insured and her boyfriend. The boyfriend injured a boy while driving the insured’s vehicle, resulting in litigation. The insured did not name her boyfriend as a regular frequent driver on her insurance application. The insured moved for summary judgment on the basis that the policy was void due to the insured’s failure to name the boyfriend in her application. The insured argued that the named-driver exclusion was void up to the statutory minimum coverage limits. The trial court denied the insurer’s summary judgment.

In reversing and granting summary judgment, the Mississippi Supreme Court held that jurisprudence enforcing the minimum limits was distinguishable because it involved a valid policy. As the insured made a false warranty and a misrepresentation as to frequent drivers, no valid policy existed. The Mississippi Supreme Court clarified that the statutory requirement that there be minimum liability coverage as to vehicles applied to vehicles, not drivers, and was inapplicable based on the policy being void as a result of the insured’s false warranty and misrepresentation. Additionally, the Court clarified that the amendment of Mississippi Code Section 63-15-3 now allows for exclusions and limitations of coverage so long as the language or form has been filed with and approved by the Commissioner of Insurance.
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Oklahoma Supreme Court Holds Exchange Student is a “Ward” of Host Family for Purposes of UM and Medical Payment Coverage Under Automobile Policy
The Oklahoma Supreme Court held that an exchange student was a “ward” of a host family under the host family’s automobile policy for coverage under the medical payments and UM coverage provisions. Serra v. Estate of Broughton, 2015 OK 82, 364 P.3d 637 (2015).

An exchange student injured while a passenger in a friend’s car made a claim under her host family’s automobile policy under the UM and medical payments provisions. The claim was denied, and the student sued. The policy did not define the term “ward,” and the Oklahoma Supreme Court held that, under Oklahoma case law, a ward may be someone who lives with a family under their care and protection, following their rules, and looking to the family for care and protection instead of being under her own care. This holding was despite the fact that the exchange student only lived with the family a few weeks, turned 18 before coming to the United States and her parents were required to obtain health and accident insurance for her while she was in the United States.
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Supreme Court of Texas Holds Loss of Use Damages Due to Total Destruction of Property Recoverable
The Supreme Court of Texas held that property owners can recover damages for loss of use due to the total destruction of their property, joining the majority view of jurisdictions holding loss of use damages are not limited to cases where property is only partially destroyed. J&D Towing, LLC v. American Alternative Ins. Co., 2016 WL 91201 (Tex. Jan. 8, 2016).

After its only truck was in an accident caused by an underinsured driver, the insured sued its insurer for loss of use damages. At trial, the jury awarded the insured loss of use damages and the insurer appealed. The court of appeals held that Texas law does not permit loss of use damages in total destruction cases and reversed and rendered judgment for the insurer.

On appeal, the Supreme Court of Texas held that the owner of personal property that has been totally destroyed may recover loss of use damages in addition to the fair market value of the property immediately before the injury. The Court reasoned that the previous distinction between partially and completely destroyed property for purposes of loss of use damages is nonsensical and then followed the majority trend in other jurisdictions permitting loss of use damages in total destruction cases. The judgment of the court of appeals was reversed and judgment was rendered for the insured.
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Insurer Has No Duty to Procure Adequate Coverage for Benefit of Third-Party Under Mississippi Law
The Mississippi Supreme Court granted summary judgment in favor of an insurer and its agent on a third-party beneficiary’s negligence claim for failure to procure sufficient coverage. Emerald Coast Finest Produce Company, Inc. v. Sunrise Fresh Produce, LLC, 2015 WL 9461494 (S.D. Miss. Dec. 23, 2015).

The owner of a building sued the tenant’s insurer and an insurance agency’s successor in interest, alleging it was a third-party beneficiary to the tenant’s insurance policy. The tenant was required under the lease to “provide and keep in force fire and extended coverage property damage insurance on the Premises equal to 100% of the replacement value of the building.” The insurer and the agency’s successor moved for summary judgment, alleging that the owner of the building did not have standing to sue as a third-party beneficiary.

The Mississippi Supreme Court found that the allegations of negligent failure to procure sufficient coverage hinges on the issue of whether a third-party beneficiary of a policy may assert a negligence claim against the insurer and/or its agent arising from the policy’s procurement, rather than its fulfillment. Under Mississippi law, a third party may maintain an action as a third-party beneficiary to enforce a promise made for its benefit; however, this right must spring from the terms of the contract. The Court held that the insurer and its agent owed no duty under the policy to procure a certain amount of insurance.
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Eleventh Circuit Finds Independent Contractor is Employee Under Policy’s Employee Exclusion
The U.S. Eleventh Circuit Court of Appeals recently held that an independent contractor was an employee and subject to an injury to employee exclusion in a commercial auto policy issued to an interstate trucking company in the absence of a policy definition of the term “employee” because the federal motor carrier regulations define it. Progressive Mountain Ins. Co. v. Madd Transp., LLC, 2015 WL 8105287 (11th Cir. Dec. 8, 2015).

A driver for the insured was injured while loading pipe onto his truck. The insured tendered its defense of the underlying lawsuit arising from the incident to its commercial auto insurer, which filed a declaratory judgment action seeking a declaration that it had no duty to defend or indemnify based on the policy’s injury to employee exclusion. The term “employee” was not defined in the subject policy. The insured argued that the exclusion was inapplicable because the driver was an independent contractor – not an employee. The district court granted summary judgment in favor of the insurer, finding that the policy was drafted in accordance with the federal motor carrier regulations, which included independent contractors in the course of operating a commercial motor vehicle in the definition of “employee.” The insured appealed.

The Eleventh Circuit, applying Georgia law, affirmed. The Eleventh Circuit held that although the policy itself did not define “employee,” it was subject to federal motor carrier regulations, which do define the term as including independent contractors in the course of operating a commercial motor vehicle.
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Fourth Circuit Refuses to Find Commercial Crime Policy Ambiguous
The U.S. Fourth Circuit Court of Appeals held that a policy covering loss from “employee dishonesty” to be unambiguous and declined to construe the policy against the insurer. EMCOR Grp., Inc. v. Great Am. Ins. Co., 2016 WL 304106 (4th Cir. Jan. 26, 2016).

The insured held consecutive commercial crime policies from different insurers for several years and sought recovery under a 2004 policy for a loss from fraudulent acts of its employees beginning in 1999 when a different insurer’s policy was in place. An endorsement in the 2004 policy provided coverage for losses discovered during the policy period but sustained “during the period of any prior insurance.” The insured argued that the phrase “any prior insurance” encompasses all of prior policies, or, alternatively, that the phrase is ambiguous. The insurer denied the claim, citing a condition indicating that “any prior insurance” referred only to the immediately preceding policy, not to any policy ever issued previously.

The Fourth Circuit held that the endorsement unambiguously provided coverage only for losses incurred during the single preceding policy. Since the Fourth Circuit held the policy language unambiguous, it refused to consider arguments regarding the general dictionary definitions of the policy’s terms, instead limiting its interpretation to the four corners of the policy.
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Fifth Circuit Holds Pollution Exclusion Precludes Coverage Where Complaint Alleged Injury from Vapors
The Fifth Circuit held that an insurer had no duty to defend based on the policy’s pollution exclusion where the complaint alleged injury from vapors emitted from insulation installed in a residence. Evanston Insurance Co. v. Lapolla Industries, Inc., 2015 WL 9460301 (5th Cir. Dec. 23, 2015).

The insured manufactured spray polyurethane foam insulation which was installed in a home. Shortly thereafter, the homeowners and their house guest smelled odors and suffered respiratory distress, causing them to leave the residence. The homeowners sued the general contractor and various subcontractors for negligence and breach of contract. The contractors then filed a third-party complaint against the manufacturer who tendered its defense to its insurer. The insurer filed suit seeking a declaration that it had no duty to defend or indemnify pursuant to the policy’s pollution exclusion. The insured counterclaimed, and the parties cross moved for summary judgment. The district court held that the pollution exclusion precluded coverage.

On appeal, the Fifth Circuit affirmed. The homeowners argued that the harm occurred from both physical contact with and mere presence of the insulation. The Fifth Circuit rejected those arguments as the injury and claimed damages suffered by the homeowners were due solely to vapors emitted from the insulation regardless of characterization otherwise.
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Florida Appellate Court Finds Insured May Assign Benefits of Policy Without Insurer’s Consent
A Florida appellate court recently held that benefits under a policy are freely assignable without the consent of the insurer. Bioscience West, Inc. v. Gulfstream Prop. & Cas. Ins. Co., 2016 WL 455723 (Fla. 2d DCA Feb. 5, 2016).

The insured sustained water damage to her residence and retained a water mitigation service to perform emergency water removal and construction services. The insured executed an assignment of insurance benefits in favor of the water mitigation company. The insurer denied the claim, concluding that the policy did not provide coverage for the claimed damages. The water mitigation company, as assignee of the insured, sued the insurer for breach of contract, alleging that the insurer wrongfully denied coverage for the claim. The insurer moved for summary judgment, which the trial court granted, finding that Florida law and the terms of the insurance policy precluded the insured from assigning benefits of her homeowner’s policy to the water mitigation company without the insurer’s consent. The trial court also reasoned that any “assignment improperly purports to transfer the right or privilege to adjust the claim to Plaintiff.” The water mitigation company appealed.

On appeal, the appellate court reversed and remanded for further proceedings. The water mitigation company argued that the policy prohibited the insured from transferring her interest in the entire policy without first receiving the insurer’s consent, but not an assignment of a benefit derived from the policy. The appellate court agreed that there was contract language restricting the post-loss assignment of benefits without the insurer’s consent, but noted that Florida law prohibits an insurer from restricting an insured’s unilateral post-loss assignment of a benefit derived from that policy.

Thus, the appellate court held that because the insured merely assigned her rights to benefits and proceeds under the policy pertaining to services for emergency water removal and construction services performed by the water mitigation company, the insured was not required to obtain the insurer’s consent before assigning her rights under the policy. The appellate court noted competing policy considerations, but stated that those considerations are for the legislature to decide, not the court.
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Louisiana Appellate Court Holds Interpretation of Use License Agreement Necessary to Determine Duty to Defend
A Louisiana appellate court found that interpreting a use license agreement was not necessary to determine whether a licensee’s insurer owed a duty to defend to the owner of a building leased by the licensee. City of Kenner v. Certain Underwriters at Lloyd’s & Krewe of Argus, Inc., 2015 WL 9589810 (La. App. 5 Cir. Dec. 30, 2015).

A third party sued a city, a licensee’s insurer and a management company after allegedly being injured while exiting a building owned by the city at an event held by the licensee. The city filed a declaratory judgment action against the licensee and its insurer for the defense and indemnity. The city alleged that it was entitled to defense and indemnity pursuant to a use license agreement and the licensee’s policy, and the trial court granted a motion for summary judgment in favor of the city.

On appeal, the court of appeal affirmed. Though the licensee and its insurer argued that an interpretation of the use license agreement was necessary to determine the scope of the licensee’s duty to defend the city, the court concluded that it was constrained to consider only the parties’ intent as specified in the policy. The court found that the policy clearly provided for the insurer to defend the city, and there was no need to seek further interpretation on the parties’ intent.
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Fourth Circuit Holds No Coverage for Fraudulent Conveyance Action that Alleged Wrongful Acts that were Interrelated with Prior Contract Dispute
The Fourth Circuit recently upheld a liability insurer’s denial of coverage where its insured sought coverage for a lawsuit alleging wrongful conduct that was related to conduct alleged in a separate lawsuit filed before the subject policy’s policy period. W.C. and A.N. Miller Development Co. v. Continental Cas. Co., 2015 WL 9487938 (4th Cir. Dec. 30, 2015); opinion amended and superseded by, 2016 WL 682974 (4th Cir. Feb. 19, 2016).

The insured was sued for breach of contract, and a judgment was entered against it. It was later sued in a fraudulent conveyance action which sought to recover the judgment, alleging that the insured had taken actions to render itself and related companies judgment proof. The insured sought a defense from its then current insurer. The insurer denied the claim on the grounds that the fraudulent conveyance lawsuit alleged wrongful conduct that was “interrelated” with the conduct alleged in the earlier lawsuit, citing a policy provision that provided, “[m]ore than one claim involving the same Wrongful Act or Interrelated Wrongful Acts shall be considered as one Claim which shall be deemed made on ... the date on which the earliest such Claim was first made ....”

Litigation ensued, with the insured arguing that the two lawsuits alleged merely a common motive and thus their similarities were not substantial enough to establish the interrelatedness of the two lawsuits. The Fourth Circuit found that the two lawsuits shared a common nexus of fact in that they alleged a “scheme involving the same claimant, the same fee commission, the same contract, and the same real estate transaction” and therefore held that the lawsuits involved Interrelated Wrongful Acts and were thus a single claim first made in the earlier lawsuit prior to the subject policy’s period.
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Federal Court in Texas Holds Water Exclusion Endorsement Bars Coverage for Damage Resulting from Failed Pipe Under Property
A federal court in Texas held that a water exclusion endorsement precluded coverage for damages resulting from a failed pipe under the insured property. Praetorian Insurance Company v. Arabia Shrine Center Houston, 2016 WL 687564 (S.D. Tex. Feb. 19, 2016).

The insurer issued a CGL policy to an event venue. During the policy period, a pipe beneath the floor in the ballroom lobby failed, causing more than a million gallons of water to be released into the facility. The facility’s insurer denied the claim in part, accepting only the limited additional coverage for water damage and personal property coverage. The facility disputed the denial, and the insurer filed a declaratory action asserting that the policy did not cover damages beyond the amounts already paid. The facility counterclaimed alleging breach of contract, breach of the duty of good faith and fair dealing, and violations of the Texas Insurance Code. The parties filed cross-motions for summary judgment.

The court granted the insurer’s motion for summary judgment affirming its coverage position and denied the facility’s motion. The court held that the damage sought resulted from an excluded cause of loss. The policy provided that the insurer would not pay for loss or damage resulting directly or indirectly from “water under the ground surface pressing on, or flowing or seeping through” the facility’s “foundation, walls, floor or paved surfaces.” The court also found that the facility’s counterclaims failed because the insurer had no obligation to provide additional coverage and the facility presented insufficient evidence that the insurer unreasonably delayed making a coverage decision.

The insurer was represented by Phelps Dunbar attorneys. Please contact Peri Alkas or Laura Englert in our Houston office for further details about this opinion.
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Federal Court in North Carolina Holds Breach of Contract Claim Does Not Trigger CGL Coverage in Absence of Causal Connection Between Breach and Related Property Damage
A federal court in North Carolina recently held that there was no duty to defend an additional insured in an underlying litigation alleging breach of contract because there was no causal connection between the breach of contract at issue and any property damage and thus the underlying claim did not trigger coverage. Westfield Insurance Company v. Nautilus Insurance Company, 2016 WL 81485 (M.D. N.C. Jan. 7, 2016).

A general contractor contracted with the State of North Carolina to construct a school building. After the school suffered damage from water intrusion, the general contractor contracted with a remediation contractor, which sued the general contractor for its fees. The general contractor tendered the suit to a subcontractor’s insurer under whose policy the general contractor was an additional insured, which rejected the demand contending that there was no coverage for the claim because it did not state an “occurrence” resulting in “property damage” and thus did not trigger coverage.

The general contractor’s insurer filed a declaratory judgment action against the subcontractor’s insurer to recover amounts it paid in defending and settling the remediation contractor’s suit, and argued that although the lawsuit was labeled a “breach of contract” claim, it is the nature of the underlying action and not the label that determines whether there is a duty to defend.

The court agreed with the general principle that the label does not control the duty to defend, but held that the damages sought arose out of the general contractor’s “non-accidental failure to honor its contractual obligations.” The court found no causal connection between the water intrusion event and the alleged breach of contract. Accordingly, the court concluded that the breach was a separate and independent act which severed the causal connection with the rain event that caused the water intrusion at the school and therefore did not trigger coverage.
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Federal Court in Virginia Refuses to Apply Virginia’s Omnibus Statute to First-Party Claims
A federal court in Virginia recently held that the Virginia Omnibus Statute, which requires liability policies covering the use of aircraft to insure the named insured and any person using the aircraft with the consent of the named insured, does not apply to first-party claims for damages. Corradi v. Old United Casualty Company, No. 1:15-cv-488, 2015 WL 8489966 (E.D. Va. Dec. 8, 2015).

The insured’s insurer denied an aircraft owner’s claim for damage to his aircraft sustained when the aircraft crashed. At the time, the aircraft was not being piloted by a named insured but instead was being piloted by a third party with the consent of the owner. The insurer denied coverage because although the pilot had the insured’s consent to operate the aircraft, he did not meet the subject policy’s definition of an “Approved Pilot.”

The owner attempted to bring his claim under the protection of Virginia’s Omnibus Statute, which requires liability policies covering the use of aircraft to insure not just the named insured but also any person using the aircraft with the named insured’s consent. However, the express terms of the Omnibus Statute limit its application only to a policy covering liability arising from the ownership, maintenance, or use of any aircraft. The owner argued that, although his claim was for first-party damage to his aircraft, there was a third party injured by the crash who could make a claim. The court noted that there was no third party actually alleging damages, and that the owner could not assert a third-party claim against himself merely to bring his claim under the Omnibus Statute. The decision is being appealed.
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Federal Court in Oklahoma Holds Coverage for Remodeling and Handyman Work Does Not Provide Coverage for Suit Arising from New Construction
A federal court in Oklahoma granted summary judgment in favor of an insurer, holding that a policy’s use of the terms “contractor,” “remodeler” and “handyman” without definitions does not create an ambiguity where the policy clearly excluded coverage for anything beyond “Remodeling: rated as Handyman.” Great Lakes Reinsurance (UK) PLC v. David’s Construction, Inc., 2015 WL 9273952 (E.D. Okla. Dec. 18, 2015).

The insurer filed suit for declaratory judgment that no coverage existed under a policy issued to a construction company for damages allegedly caused by the insured in the construction of a new home. The insurer argued on summary judgment motion that the policy was limited to remodeling or handyman work but did not cover new construction. The insured maintained that the policy covered all contracting work. The policy included a “Combination Endorsement,” which provided in pertinent part a “Classification Limitation,” stating “[t]his insurance does not apply to … ‘property damage’ … arising out of those operations or premises which are not classified or shown on the Commercial General Liability Coverage Part Declarations, its endorsements or supplements.” The policy unambiguously defined the insured’s work as “Remodeling” as “Handyman,” and the court found that the fact that the policy also referred to the insured as a contractor did not extend coverage for claims based on new home construction.
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Federal Court in Florida Holds Insured Entitled to Fees Incurred Defending Declaratory Judgment by Insurer Even Where Insurer Settles Underlying Lawsuit Against Insured
A federal court in Florida held that an insured was entitled to attorneys’ fees and costs incurred in defending a declaratory judgment action brought by its insurer even when the insurer eventually settled the underlying lawsuit against the insured. Zurich American Insurance Co. v. Sunshine Freight Carriers, Inc. and Raquel Lizaola, 2016 WL 374932 (M.D. Fla. Feb. 1, 2016).

The underlying lawsuit arose out of an automobile accident caused by the insured’s employee or independent contractor. The insurer defended under a reservation of rights and filed a declaratory judgment action to resolve the coverage issues. The insured filed a counterclaim for breach of contract for failing to provide an unqualified defense in the underlying suit and sought attorneys’ fees pursuant to Florida Statutes. Following the settlement of the underlying lawsuit, the insurer moved to dismiss the declaratory judgment action as moot. The insured filed a motion seeking attorneys’ fees and costs.

The insurer argued that the entire case, including the insured’s counterclaim, should be dismissed as moot; the insured argued that the underlying settlement constituted a confession of judgment by the insurer entitling the insured to attorneys’ fees and costs. The district court found, under Florida law, that the settlement of a third-party lawsuit and dismissal of the related declaratory judgment action as moot constitutes a confession of judgment by an insurer entitling the insured to attorneys’ fees under Florida Statutes. The court found that the dismissal of the declaratory judgment suit as moot does not prevent the court from considering collateral matters, such as the insured’s fee claim. The court granted the insurer’s motion to dismiss and granted the insured’s motion for attorneys’ fees and costs.
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