Lead Opinion
This case is before the Court for review of two questions of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that are determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. For the reasons that follow, we hold that the insured in this ease can use the payments to it from a third party to satisfy the self-insured retention provision.
FACTUAL AND PROCEDURAL HISTORY
This case involves the terms of a general liability insurance contract entered into by General Fidelity Insurance Company (General Fidelity) with Intervest Construction of Jax, Inc., and ICI Homes, Inc. (ICI). The dispute arose out of a personal injury lawsuit filed against ICI by an injured homeowner.
In 2000, ICI contracted with Custom Cutting, Inc. (Custom Cutting) to provide trim work, including installation of attic stairs in a residence that ICI was in the process of building. The contract between Custom Cutting and ICI contained an in-
At the time of the accident, Custom Cutting maintained a commercial general liability insurance policy with North Pointe Insurance Company (North Pointe). ICI was not an additional insured under Custom Cutting’s policy with North Pointe. ICI held the General Fidelity policy at the time of the accident. Contained in the General Fidelity policy was a Self-Insured Retention endorsement (“SIR”) in the amount of $1 million. The SIR endorsement stated that General Fidelity would provide coverage only after the insured had exhausted the $1 million SIR. The policy also included a transfer of rights clause granting the insurer some subrogation rights, the extent to which the parties dispute.
ICI, Custom Cutting, North Pointe, General Fidelity, and Ferrin participated in a mediation of Ferrin’s claim. At the mediation, the parties agreed to a $1.6 million settlement of Ferrin’s claim. As part of the settlement, North Pointe agreed to pay ICI $1 million to settle ICI’s indemnification claim against Custom Cutting. ICI, in turn, would pay that $1 million to Ferrin. The instant dispute then arose as to whether ICI or General Fidelity was responsible for paying Ferrin the remaining $600,000.
Because of the disagreement between General Fidelity and ICI over coverage, North Pointe paid the $1 million into the trust account of ICI’s counsel and each party reserved all rights and claims against the other. Approximately one month later, both ICI and General Fidelity each paid $300,000 to Ferrin, in addition to the $1 million from North Pointe, in order to settle Ferrin’s claim for the full $1.6 million. However, the parties reserved the right to bring their claims against each other in order to be reimbursed for their contribution to the settlement.
ICI filed suit in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida for breach of contract and a declaratory judgment seeking return of the $300,000 ICI paid above the $1 million indemnification payment and for attorneys’ fees and costs incurred in the Ferrin lawsuit. General Fidelity then removed the case to the United States District Court for the Middle District of Florida based on diversity jurisdiction. General Fidelity filed a counterclaim seeking return of the $300,000 it had paid to Ferrin. The parties filed cross-motions for summary judgment.
In its complaint, ICI alleged that General Fidelity failed to perform its obligation under the policy by refusing to pay $600,000 of the $1.6 million settlement. ICI maintained that Custom Cutting/North Pointe’s contribution of $1 million to settle ICI’s indemnification claim, which was then passed on to Ferrin, satisfied the SIR obligation in the policy and General Fidelity was required to pay the remaining $600,000. General Fidelity argued that North Pointe’s $1 million payment to settle the indemnity claim did not reduce the SIR because the payment originated from Custom Cutting, not ICI. Thus, General Fidelity maintained that the terms of the policy required ICI to pay the additional $600,000 to settle Ferrin’s claim.
ICI appealed the district court’s ruling to the Eleventh Circuit Court of Appeals. The Eleventh Circuit identified two issues that governed the outcome of the case, but concluded there was no controlling Florida law on either issue. Unlike the district court, the Eleventh Circuit did not find the California cases persuasive in interpreting the General Fidelity policy because the California policies were materially different. Thus, the Eleventh Circuit certified two questions to this Court for resolution:
1. DOES THE GENERAL FIDELITY POLICY ALLOW THE INSURED TO APPLY INDEMNIFICATION PAYMENTS RECEIVED FROM A THIRD-PARTY TOWARDS SATISFACTION OF ITS $1 MILLION SELF-INSURED RETENTION?
2. ASSUMING THAT FUNDS RECEIVED THROUGH AN INDEMNIFICATION CLAUSE CAN BE USED TO OFFSET THE SELF-INSURED RETENTION, DOES THE TRANSFER OF RIGHTS PROVISION FOUND IN THE GENERAL FIDELITY POLICY GRANT SUPERIOR RIGHTS TO BE MADE WHOLE TO THE INSURED OR TO THE INSURER?
Intervest Constr. of Jax, Inc. v. Gen. Fid. Ins. Co.,
ANALYSIS
Under Florida law, the interpretation of insurance contracts, such as the commercial general liability policy in this case, is governed by generally accepted rules of construction. U.S. Fire Ins. Co. v. J.S.U.B., Inc.,
The text of the SIR endorsement in the instant case provides, in pertinent part:
THIS ENDORSEMENT CHANGES THE POLICY.
PLEASE READ IT CAREFULLY
SELF-INSURED RETENTION Per Occurrence
Self-Insured Retention: $1,000,000 Per Occurrence
Including Loss Adjustment Expense
In consideration of the premium charged, it is agreed the insurance afforded by the policy to which this endorsement is attached is subject to the following additional terms, conditions and provisions. In the event of a conflict between any of the terms, conditions or provisions of the policy and this endorsement, this endorsement will control the application of insurance to which the policy applies.
Unless otherwise specified, all terms used in this endorsement have the meaning set forth in the policy.
1.The Self-Insured Retention, shown above, applies to each and every “occurrence” or offense made against any insured, to which this insurance applies, irrespective of the number of claims which may be joined in to any one “suit” or claim.
2. Our total liability will not exceed the Limits of Insurance as specified in the policy Declarations, Coverage Parts or endorsements. The Limits of Insurance will apply only in excess of the Self-Insured Retention, hereinafter referred to as the “Retained Limit.”
3. We have no duty to defend or indemnify unless and until the amount of the “Retained Limit” is exhausted by payment of settlements, judgments, or “Claims Expense” by you.
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5. Should any claim arising under this policy result in a settlement or judgment, including “Claims Expense” incurred by the insured or on the insured’s behalf, in excess of the “Retained Limit,” we will pay those amounts in excess of the “Retained Limit” to which this insurance applies subject to the Limits of Insurance as specified in the Declarations.
6. The “Retained Limit” will only be reduced by payments made by the insured.
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11. With respect to any claim payable under this insurance and subject in whole or in part to the “Retained Limit” as provided in this endorsement, we will have the right, but not the obligation to assume the control of said claim and to pay any part of or all of the amount of any such loss including “Claims Expense” within the “Retained Limit” on behalf of and for the account of the insured to affect settlement of said claim. Amounts paid by us pursuant to this paragraph will be*499 reimbursed to us by the insured within ten (10) days from the date of our written request to the insured. We will have the right to make partial recoveries from the insured when partial settlements or “Claims Expense” are incurred by us within the “Retained Limit” as provided by this endorsement.
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14. The insolvency, bankruptcy, receivership of the insured, or any refusal by or inability of the insured to satisfy its obligations pursuant to this endorsement will not reduce the “Retained Limit” as set forth in the endorsement, nor will it require us to pay any amounts within the “Retained Limit.” The payment of the “Retained limits” by the insured is a condition precedent for our obligation to pay any sums either in defense or indemnity and we shall not pay any such sums until and unless the insured has satisfied its “Retained limits.”
The underlined portions of the endorsement were cited by the district court as unambiguously requiring the insured to pay the “Retained Limit” from his or her own funds.
Both parties filed motions for summary judgment on the issue of whether ICI’s self-insured retention obligation was exhausted by an indemnification made by one of its subcontractors. The district court denied ICI’s motion and granted General Fidelity’s motion, entering judgment in its favor for $300,000. Intervest Constr. of Jax, Inc. v. Gen. Fid. Ins. Co., Case No. 3:09-cv-00894-HES-JRK (M.D.Fla. Apr. 22, 2010). The district court recognized that no Florida law addressed this narrow issue and cited three California decisions as persuasive authority. Id. at 6. The cited cases included Vons Cos. v. United States Fire Insurance Co.,
On appeal, the Eleventh Circuit stated that the crux of the dispute between the parties focuses on two provisions of the General Fidelity policy, the SIR endorsement and the transfer of rights clause.
Although each of the California cases cited by the district court and the Eleventh Circuit addressed the satisfaction of a SIR obligation, none involved the same policy language at issue here. What the cases have in common with each other, and with the resolution of the instant case, is that the policy language controlled — because it either clearly addressed or was ambiguous on the issue of how or by whom the SIR could be paid.
Vons involved an issue similar to the one presented here. A person was injured by a pallet jack being operated by a Vons employee in the common area of a shopping center owned by Vons’ landlord, Longs Drug Stores (Longs). Vons,
Vons was also insured under its own CGL policy issued by U.S. Fire. The Vons policy provided $1 million in coverage, but also included a $1 million SIR endorsement. The SIR endorsement in the Vons policy also provided that it was “subject to the limits of liability, exclusions, conditions, and other terms of the policy to which this agreement is attached ...” and that “all other terms and conditions of this Policy remain unchanged.” Id. Longs’ insurer issued a $1 million check to Vons as an additional insured under the Longs policy; Vons contributed $539,905 of its own funds to pay all of the settlement to the injured man. Vons and U.S. Fire disagreed on whether the $1 million SIR in the Vons policy would be deemed exhausted if
Vons sued U.S. Fire for declaratory relief on the issue. The trial court ruled that U.S. Fire had to reimburse Vons the $589,905 contributed to the settlement. The trial court determined that the Vons policy did not limit the source of the $1 million SIR in any way and did not require Vons to pay the SIR exclusively from its own pocket. Id. at 600. U.S. Fire appealed to the California appellate court, which concluded that the “subject to” language in the SIR endorsement made the endorsement subordinate to the other policy terms and conditions, including the “other insurance” provision that made the insurance excess in the event that other insurance was available. Id. at 604-05. The court explained that the SIR standing alone would ordinarily make the Vons policy excess, but this provision was expressly made subject to policy terms which also provided that U.S. Fire’s coverage was excess if any other valid insurance were available for the same coverage. The appellate court concluded that the most reasonable construction of this provision permitted the payment of the SIR amount through other valid and collectible insurance. Id. at 605. At the very least, the court stated, it rendered the SIR ambiguous on this point. Id. As the appellate court explained:
Nowhere does the SIR expressly state that Vons itself, not other insurers, must pay the SIR amount. Because the SIR was subject to the other insurance provisions, which also made the Vons policy excess if there were another policy covering the accident, Vons as a reasonable insured could read the policy as permitting the use of other insurance proceeds to cover the SIR amount.
Id.
Another case which involved the question of whether a policy required the SIR to be paid from the insured’s own account is Arena Group. The underlying action involved personal injuries sustained when a two-ton marquee sign at the San Diego Sports Arena fell on two individuals. Arena Group,
The language of the insurance policy in Forecast Homes was even more explicit, expressly limiting who could satisfy the SIR. The SIR endorsement required that the named insured “make actual payment” of the SIR amount and provided that “[pjayments by others, including but not limited to additional insureds or insurers, do not serve to satisfy the self-insured retention.” Forecast Homes,
Acceptance Insurance involved a number of underlying actions for construction defects and property damage in homes based on work performed by a developer of residential real estate and the developer’s subcontractors.
The court determined that the SIR provision “clearly and unambiguously” required the developer to be responsible for satisfying the SIR with its own funds, regardless of any insurance coverage applicable to the underlying actions. Id. at *7. The SIR contained a provision stating that regardless of other insurance, the insured would continue to be responsible for the full SIR before the limits of insurance under the NACIC policy would apply. Id. The court noted that this provision in the SIR endorsement would be meaningless if not interpreted as requiring the insured to satisfy the SIR with its own funds. Id. Otherwise, the provision “would be reduced to simply reiterating the more general terms” of the policy. Id. Additionally, the endorsement expressly stated that it changed the policy and that it controlled in the event of a conflict with other policy provisions. Id. at *6. The court explained that the SIR endorsement in the NACIC policy “clearly place[d] the insured on notice that the additional provisions of the Endorsement change[d] the general policy terms and conditions and [were] separate requirements.” Id.
We agree with the Eleventh Circuit that the policies at issue in the California cases are materially different from the instant policy. See Intervest Constr.,
The Eleventh Circuit also noted that the language of the instant policy “is arguably less restrictive than the language of the policies at issue in [the California] cases.” Intervest Constr.,
Moreover, as the Eleventh Circuit noted in its opinion, “a strong argument could be made that ICI exhausted its SIR because it paid for the protection afforded in the indemnification clause.” Intervest Constr., 662 F.3d at 13B0. The contract between Custom Cutting and ICI, which included the right to indemnification, was entered into six years before the General Fidelity policy was purchased by ICI. ICI paid for the indemnity protection in the purchase price of the Custom Cutting subcontract and therefore hedged its retained risk in this manner. ICI bargained for and paid for this right to indemnification and, without an express policy provision to the contrary, should be able to use it to satisfy the SIR. The instant case is more akin to the policy in Vons, in which the SIR did not “expressly state that Vons itself, not other insurers, must pay the SIR amount.” Vons,
In light of the language of the policy and the right to indemnification for which ICI paid, we answer the first certified question in the affirmative and find that the General Fidelity policy allows the insured to apply indemnification payments received from a third party toward satisfaction of its $1 million self-insured retention.
The second certified question asks whether the common law rule of the “made whole doctrine” applies here or whether the transfer of rights clause in the policy abrogated the doctrine. The district court did not address this issue. However, the Eleventh Circuit considered the effect of the transfer of rights clause if ICI was permitted to use the Custom Cutting indemnification to satisfy the SIR obligation. See Intervest Constr.,
The text of the transfer of rights provision is found in SECTION IV — -COMMERCIAL GENERAL LIABILITY LIMITS, and provides in full:
8. Transfer Of Rights Of Recovery Against Others To Us
If the insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring ‘suit’ or transfer those rights to us and help us enforce them.
As the Eleventh Circuit stated, the language of this provision is clear — it gives the insurer General Fidelity subrogation rights. However, the provision gives no guidance as to the priority to recover when the indemnity amount is insufficient to “make whole” both parties. See Intervest Constr.,
“Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right.” W. Am. Ins. Co. v. Yellow Cab Co. of Orlando, Inc.,
The “made whole doctrine” provides, absent a controlling contractual provision that states otherwise, that the insured has priority over the insurer to recover its damages when there is a limited amount of indemnification available. See Schonau v. GEICO Gen. Ins. Co.,
ICI cites a Washington case for the proposition that the specific language of the transfer of rights provision found in the General Fidelity policy does not write out the “made whole doctrine,” thereby preserving ICI’s right of priority. See Bordeaux, Inc. v. Am. Safety Ins. Co.,
Bordeaux addressed the nature of SIR provisions in commercial general liability policies that American Safety Insurance Company (American Safety) issued to the condominium developer, Bordeaux, Inc.
Bordeaux cited two Florida cases in support of its conclusion that the SIR did not operate as primary insurance, thereby making American Safety’s policy provide excess insurance. This conclusion was significant because had the self-insurance provisions constituted insurance and American Safety’s policy been deemed “excess” insurance, then American Safety’s rights to subrogation would have been superior to Bordeaux’s, and American Safety would have been entitled to recover third-party settlement funds before its insured.
However, the language of the transfer of rights clause in the instant case is exactly the same as that in Bordeaux. While Bordeaux is not controlling precedent in this case, it is persuasive authority that the “made whole doctrine” is still applicable despite the insurance subrogation provision. As Florida law explains, because subrogation is an offspring of equity, equitable principles (such as the “made whole doctrine”) apply even when the subrogation is based on contract, unless the con
CONCLUSION
Accordingly, we answer the Eleventh Circuit’s first certified question in the affirmative and the second certified question by concluding that the transfer of rights provision in the policy does not abrogate the made whole doctrine. Having answered the certified questions, we return this case to the United States Court of Appeals for the Eleventh Circuit.
It is so ordered.
Notes
. The transfer of rights clause is set forth and addressed in the analysis of the second certified question below.
. The Eleventh Circuit also cited a fourth California case as being materially different from the instant case. The Eleventh Circuit noted in a footnote that the SIR endorsement at issue in Insurance Co. of the State of Pennsylvania v. Acceptance Insurance Co.,
. The court did not use the term "made whole doctrine,” instead referring to the “longstanding rule ... favoring full compensation of insureds over subrogation rights of insurers.” Bordeaux,
. General Fidelity did not make that argument in this case.
Dissenting Opinion
dissenting.
Based on the unambiguous allocation of risk under the provisions of the policy, I would conclude that indemnification payments received from a third party may not be applied to satisfy the self-insured retention. I thus would answer the first certified question in the negative. That negative answer to the first question renders the second certified question moot.
Paragraph 3 of the self-insured retention endorsement plainly states that the insurer has “no duty to defend or indemnify unless and until the amount of the ‘Retained Limit’ is exhausted by payment of settlements, judgments, or ‘Claims Expense’ by you” — that is, by the insured. Paragraph 6 of the endorsement plainly states that “the ‘Retained Limit’ will only be reduced by payments made by the insured.” No other provisions of the policy render these provisions ambiguous.
A payment made by a third party pursuant to an indemnification agreement is not a payment “made by the insured.” The insurance policy should not be rewritten to allow satisfaction of the self-insured retention limit in a manner other than the manner specifically provided for in the policy. I thus would reject the legal fiction adopted by the majority that a payment made by a third party pursuant to a contractual indemnity provision is a payment “made by the insured.” Imposing that legal fiction effectively reads the phrase “by you” out of paragraph 3. And it reads the entirety of paragraph 6 out of the endorsement. The majority’s unjustified interpretation of the endorsement gives the endorsement a meaning that is no different than if those provisions were absent from the policy.
I dissent.
POLSTON, C.J., concurs.