KINGS POINT WEST, INC., APPELLANT,
v.
NORTH RIVER INSURANCE COMPANY, APPELLEE

Fla. 2d DCA | 1982-01-27
No. 81-807
OTT, A. C. J., and DANAHY, J., concur., OTT, A. C. J., and RYDER and DAN-AHY, JJ., concur.
412 So. 2d 379 Florida District Court of Appeal, Second District (1982) Caution
Also reported at: 1982 Fla. App. LEXIS 19077
Cited by 8 cases

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Synopsis

Kings Point West, Inc. purchased insurance from North River Insurance Company covering damage to condominium interior furnishings. When a class action lawsuit was filed against Kings Point alleging roof and water damage, North River refused to defend despite the complaint's allegations appearing to trigger coverage. The court reversed the lower court's judgment, holding that an insurer's duty to defend is determined solely by the allegations in the initial complaint, not by later filings or discovery.


Holding

The court held that an insurer's duty to defend is determined solely by the allegations of the initial complaint filed in the underlying lawsuit. Later filings or stipulations in the action, whether they indicate coverage applies or does not apply, cannot create or defeat the duty to defend. The lower court erred in looking beyond the complaint's allegations to determine no duty to defend arose.


Headnotes

[1] An insurer's duty to defend is determined by the allegations in the complaint.

[2] Later filings in a lawsuit that tend to indicate claims are not covered by an insurance policy do not defeat the insurer's duty to defend that arose from the initial plea…

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Key Quotes

“We hold that the lower court erred in looking beyond the allegations of the complaint to determine that a duty to defend did not arise below. The allegations of the complaint governed the duty of the insurer to defend.”

Establishes the core holding that the initial complaint's allegations solely determine the insurer's duty to defend.

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Facts & Procedural History

Kings Point West developed condominiums and purchased insurance policies from North River covering claims for damage to interior furnishings. In 1978,…

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Opinion of the Court
RYDER, Judge.

RYDER, Judge.

Kings Point West, Inc. appeals from a judgment adverse to its claim that appellee, North River Insurance Company, wrongfully refused to defend a lawsuit. We reverse.

Appellant purchased insurance policies from appellee which provided coverage for claims of damage to interior furnishings in condominiums developed by appellant. In 1978, several condominium associations filed a joint class action against appellant (not the case at issue), alleging faulty roof construction, damage to the roofs, and water damage to the interiors and interior furnishings of the apartments. Appellant employed its own counsel and started to defend the suit. The plaintiffs in the class action suit filed a memorandum of law on December 2, 1978, which stated that all causes of action concern the common elements of the condominiums. The attorney for plaintiffs testified that he told the trial judge at a hearing in January 1975 that he was only prosecuting a claim for damages to the common elements.

On approximately February 2, 1979, counsel representing appellant learned of the existence of the insurance policies, and requested appellee to defend the suits. Other than to acknowledge the demand, appellee took no action. Prosecution of the suit continued with a filing of plaintiff’s inter-rogatqries on February 27, 1979, stating that the damages to each class member were to his proportionate share of the common elements. The depositions of unit owners filed also did not indicate any claim for damage other than to the common elements. But the class plaintiffs repled allegations of damages to interior furnishings in amended complaints filed June 5, 1979 and September 17, 1979. Appellant continued to defend the suit, and eventually settled all claims, including consequential damages by paying the sum of $170,575.00.

Appellant then began this action to recover costs of the defense. Appellee’s defenses included the ground that the policies excluded coverage for damages due to appellant’s own work or incurred in premises alienated by appellant. The court below found appellant had failed to prove that appellee wrongfully refused to defend, basing that ruling on the finding that at the time appellant demanded a defense, the lawsuit did not seek damages which were covered under the policy.

We hold that the lower court erred in looking beyond the allegations of the complaint to determine that a duty to defend did not arise below. The allegations of the complaint governed the duty of the insurer to defend. National Union Fire Insurance Co. v. Lenox Liquors, Inc., 358 So. 2d 533 (Fla.1977); West American Insurance Co. v. Silverman, 378 So. 2d 28 (Fla. 4th DCA 1979), cert. denied, 389 So. 2d 1117 (Fla.1980); Accredited Bond Agencies, Inc. v. Gulf Insurance Co., 352 So. 2d 1252 (Fla. 1st DCA 1977).

The Florida Supreme Court in National Union Fire Insurance Co. v. Lenox Liquors, Inc., supra, held that if coverage was not indicated by the allegations of the complaint, later stipulations filed in the action which indicate that insurance coverage would apply do not create a duty to defend. We hold that the reverse is also true. The later filings below, which tended to indicate that the damage claims pursued against appellant/insured were not covered by the insurance policy issued by appellee, do not defeat the duty to defend. Were this not the case, the indefiniteness as to whether the insurer should begin or should continue to defend a suit would create another major issue in many insurance lawsuits, placing insurer and insured on opposing sides. We think that result would not well serve either. With a duty to defend set by the initial pleading, each party knows his standing and need not examine every new document filed to determine if the claims may be focusing on noncovered damages.

The final judgment is REVERSED, and the case REMANDED for entry of judgment for appellant.

OTT, A. C. J., and DANAHY, J., concur.

Other
PER CURIAM.

PER CURIAM.

Although we deny appellee’s motion for rehearing, certain allegations contained therein point out appellee’s misinterpretation of our opinion previously entered herein. We add the following paragraph to cure that ill:

This decision does not conflict with anything we said in Employers Commercial Union Insurance Company of America v. Kottmeier, 323 So. 2d 605 (Fla. 2d DCA 1975), C. A. Fielland, Inc. v. Fidelity and Casualty Company of New York, 297 So. 2d 122 (Fla. 2d DCA 1974), and The Garden Sanctuary, Inc. v. Insurance Company of North America, 292 So. 2d 75 (Fla. 2d DCA 1974), because at the time appel-lee was requested to defend the suit, the claims for damage which would have been covered by the policy had not been clearly eliminated from the suit.

Motion for rehearing DENIED.

OTT, A. C. J., and RYDER and DAN-AHY, JJ., concur.


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  • Baron OIL Co. v. Nationwide Mut. Fire Ins. Co., 470 So. 2d 810 (Fla. 1st DCA 1985)
    …. 2d 533 (Fla.1978); New Amsterdam Casualty Co. v. Knowles, 95 So. 2d 413 (Fla.1957); State Farm Mutual Automobile Insurance Co. v. Universal Atlas Cement Co., 406 So. 2d 1184 (Fla. 1st DCA 1982); Kings Point West, Inc. v. North River Insurance Co., 412 So. 2d 379 (Fla. 2d DCA 1982); Federal Insurance Co. v. Applestein, 377 So. 2d 229 (Fla. 3d DCA 1979); St. Paul Fire & Marine Insurance Co. v. Thomas, 273 So. 2d 117 (Fla. 4th DCA 1973). The reason for this rule is aptly stated in Kings Point West, Inc.: The…
    1 / 2
  • …made to appear by the pleadings that the claims giving rise to coverage have been eliminated from the suit.” Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So. 2d 810, 815 (Fla. 1st DCA 1985); see also Kings Point W., Inc. v. N. River Ins. Co., 412 So. 2d 379, 380 (Fla. 2d DCA 1982) (holding that the trial court “erred in looking beyond the allegations of the complaint to determine that a duty to defend did not arise below”). ILM has admitted that it had a duty to defend Causeway based on the third-part…
  • Dimaria v. Stickney, 448 So. 2d 553 (Fla. 4th DCA 1984)
    …to the matter raised on cross-appeal, in Circuit Court Case No. 81-5426 CA(L) 01 I, we affirm upon the authority of National Union Fire Insurance Co. v. Lenox Liquors, Inc., 358 So. 2d 533 (Fla.1977); Kings Point West, Inc. v. North River Ins. Co., 412 So. 2d 379 (Fla. 2d DCA 1982); and Klaesen Bros., Inc. v. Harbor Ins. Co., 410 So. 2d 611 (Fla. 4th DCA 1982). AFFIRMED. ANSTEAD, C.J., and GLICKSTEIN and WALDEN, JJ., concur.…

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