560 F. App'x 861
11th Cir.2014Background
- Marlow was insured by Continental under four polices including two CGL policies (Nov 30, 2003–Nov 30, 2004; Nov 30, 2004–Nov 30, 2005).
- Dent v. Composite Structures, Inc. d/b/a Marlow Marine Sales alleged carbon monoxide exposure on Seabird II with negligence and product liability claims (Feb 12, 2007 filing).
- Continental reserved its right to determine duty to defend/indemnify after reviewing policy terms and notice timing.
- Continental denied coverage on May 16, 2007 under the Pollution Buy Back Endorsement, which requires five conditions to be met for the exception to apply, including timely notice.
- Marlow sought declaratory relief for defense and indemnity; district court granted Continental summary judgment, finding no duty to defend.
- Marlow appeals asserting a duty to defend despite the explicit notice timing issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Pollution Buy Back Endorsement applies to bar coverage. | Marlow argues the endorsement may create coverage if exceptions are met. | Continental contends all five conditions must be met, which were not satisfied. | No; all five conditions must be met for the exception to apply. |
| Whether the date of written notice can be considered to determine the duty to defend. | Marlow asserts the Dent complaint may allow consideration of notices outside the complaint. | Continental may rely on unalleged facts (notice date) to determine coverage. | Yes; the date of written notice can be considered under Higgins and Keen principles. |
| Whether Marlow had a duty to defend given notice was untimely under the policy. | Marlow maintains potential coverage despite late notice. | Notice was untimely beyond 33 days after occurrence under the policy; no duty to defend. | Continental had no duty to defend. |
| Whether declaratory relief was required to determine the duty to defend. | Marlow argues declaratory action is necessary to resolve factual issues. | Declaratory action is not required; not all cases demand it to determine duty to defend. | Not required; permissive, and here no facts required declaratory action. |
Key Cases Cited
- Higgins v. State Farm Fire and Cas. Co., 894 So. 2d 5 (Fla. 2005) (notice can be considered when not ordinarily alleged in complaint)
- Keen v. 658 So. 2d 1101, 658 So. 2d 1101 (Fla. 4th DCA 1995) (uncontroverted facts outside complaint can relieve insurer of defense)
- Acosta, Inc. v. Nat’l Union Fire Ins. Co., 39 So. 3d 565 (Fla. 1st DCA 2010) (prior litigation exclusion; court may consider outside complaint)
- Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So. 2d 810 (Fla. 1st DCA 1985) (declaratory judgment is a preferable, not sole, means to determine duty)
- Amerisure Ins. Co. v. Gold Coast Marine Distribs., Inc., 771 So. 2d 579 (Fla. 4th DCA 2000) (duty to defend determined from complaint unless exceptions)