53 So. 3d 1220
Fla. Dist. Ct. App.2011Background
- O'Fell, a patron of Big Top, alleges negligent arrest, hazardous negligent hiring/supervision, and battery-related injuries from a Big Top security guard.
- Big Top is insured by Essex, and Essex sought a declaratory judgment that it has no duty to defend/indemnify.
- Essex relied on an assault and/or battery exclusion that also covers negligent hiring/supervision, claiming O'Fell's claims fall within the exclusion.
- The trial court denied Essex's summary judgment and later held Essex had a duty to defend and indemnify up to policy limits.
- On appeal, the Florida Second District reverses, holding the exclusion plainly bars coverage for O'Fell's claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to defend based on complaint | Essex argues the complaint falls outside coverage due to the assault/battery exclusion. | Big Top contends ambiguity in the exclusion and that facts may support coverage. | No duty to defend; exclusion applies. |
| Ambiguity and interpretation of the exclusion | Essex asserts the exclusion is clear and unambiguous. | Big Top argues the clause about reasonable force is ambiguous and should be interpreted in Essex's favor. | Exclusion is plain and unambiguous; governs coverage despite complaint allegations. |
Key Cases Cited
- Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5 (Fla.2004) (insurer's duty to defend determined by complaint)
- Auto-Owners Ins. Co. v. Marvin Dev. Corp., 805 So.2d 888 (Fla.2d DCA 2001) (duty to defend depends on allegations in complaint)
- Nat'l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla.1977) (allegations govern duty to defend)
- State Farm Fire & Cas. Co. v. Edgecumbe, 471 So.2d 209 (Fla.1st DCA 1985) (allegations control; no evidence review when determining duty)
- City of Miami v. Sanders, 672 So.2d 46 (Fla.3d DCA 1996) (excessive force can convert police action into battery)
- Perrine Food Retailers, Inc. v. Odyssey Re (London) Ltd., 721 So.2d 402 (Fla.3d DCA 1998) (assault/battery exclusions extend to negligence arising from such acts)
- Swire Pac. Holds., Inc. v. Zurich Ins. Co., 845 So.2d 161 (Fla.2003) (plain language governs contract interpretation)
- WellCare of Fla., Inc. v. Am. Intl Specialty Lines Ins. Co., 16 So.3d 904 (Fla.2d DCA 2009) (duty to indemnify narrower than duty to defend)