KELLER INDUSTRIES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, APPELLEE
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Keller Industries appealed a declaratory judgment denying insurance coverage for a product liability settlement but awarding attorney's fees for the insurer's unjustified refusal to defend. The court affirmed, holding that Keller failed to apportion damages to show the settlement fell within policy coverage, but the insurer's refusal to defend was improper and warranted attorney's fees.
The court held that: (1) Keller, as the party claiming coverage, bore the burden of apportioning damages to show the settlement fell within policy coverage, which it failed to do; (2) the trial court properly found the settlement represented replacement and repair costs excluded from coverage; and (3) while an unjustified refusal to defend does not require payment of a settlement lacking coverage, the insurer's refusal to defend here was improper and warranted attorney's fees.
[1] The party claiming insurance coverage bears the burden to apportion damages and demonstrate that settlement costs fall within the policy's coverage provisions.
[2] Substantial evidence supports a trial court's finding that a settlement was attributable to excluded costs, rather than covered personal injury or property damage.
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Join FLexlaw to unlock all legal intelligence“as the party claiming coverage, Keller had the burden, which it failed to carry, to apportion damages and show that the settlement, or portions thereof, represented costs that fell within the coverage provisions of the policy”
Establishes that the insured bears the burden of proving coverage by apportioning settlement amounts to covered losses.
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Join FLexlaw to unlock all legal intelligenceKeller Industries settled an underlying lawsuit arising from defective products and workmanship. The settlement amount was $18,540.71. Keller sought c…
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HENDRY, Judge.
Appeal is taken from the final judgment in a declaratory judgment action where the trial court, sitting as trier of fact, awarded appellant Keller Industries $18,540.71 in attorney’s fees but denied Keller damages under the contract of insurance. We affirm the final judgment upon a holding that: (1) as the party claiming coverage, Keller had the burden, which it failed to carry, to apportion damages and show that the settlement, or portions thereof, represented costs that fell within the coverage provisions of the policy, Jones v. Holiday Inns, Inc., 407 So. 2d 1032 (Fla. 1st DCA 1981), petition for rev. denied, 417 So. 2d 329 (Fla.1982); Aetna Insurance Co. v. Waco Scaffold & Shoring Co., Inc., 370 So. 2d 1149 (Fla. 4th DCA 1978), cert. denied, 368 So. 2d 1375 (Fla.1979); Universal Underwriters Insurance Corp. v. Reynolds, 129 So. 2d 689 (Fla. 2d DCA 1961), (2) the record on appeal contains substantial, albeit conflicting, evidence to support the trial court’s finding that the sum paid by Keller to settle the underlying lawsuit was attributable to the cost of replacing and repairing defective products and workmanship, items excluded under the policy provisions, rather than expenses for personal injury or property damage resulting from the defective product, Strawgate v. Turner, 339 So. 2d 1112 (Fla.1976); Neimark v. Abramson, 403 So. 2d 1057 (Fla. 3d DCA 1981); Atkins v. Keller, 400 So. 2d 168 (Fla. 3d DCA), petition for rev. denied, 411 So. 2d 380 (Fla.1981); see LaMarche v. Shelby Mutual Insurance Co., 390 So. 2d 325 (Fla.1980), and (3) an unjustified failure to defend does not require the insurer to pay a settlement where no coverage exists, Aetna Insurance Co. v. Waco Scaffold & Shoring Co., Inc., supra; Stevens v. Horne, 325 So. 2d 459 (Fla. 4th DCA 1975).
However, as the duty to defend is more extensive than the duty to indemnify, and some allegations in the complaint arguably fell within coverage of the policy, the trial court properly granted Keller attorney’s fees for the insurer’s unjustified refusal to defend. Florida Farm Bureau Mutual Insurance Co. v. Rice, 393 So. 2d 552 (Fla. 1st DCA 1980), petition for rev. denied, 399 So. 2d 1142 (Fla.1981); Federal Insurance Co. v. Applestein, 377 So. 2d 229 (Fla. 3d DCA 1979), cert. denied, 389 So. 2d 1107 (Fla.1980); C.A. Fielland, Inc. v. Fidelity and Casualty Company of New York, 297 So. 2d 122 (Fla. 2d DCA 1974), cert. denied, 309 So. 2d 6 (Fla.1975).
Affirmed.
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Fran McCREARY and Cain McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 758 So. 2d 692 (Fla. 4th DCA 1998)…So. 2d 355, 358 (Fla. 3d DCA 1996) (citations omitted). Further, “an unjustified failure to defend does not require the insurer to pay a settlement where no coverage exists.” Id. (quoting Keller Indus. Inc. v. Employers Mut. Liab. Ins. Co. of Wis., 429 So. 2d 779, 780 (Fla. 3d DCA 1983)). We, therefore, conclude that summary judgment was improperly granted on both the issue of the duty to defend and the issue of indemnification and remand this matter to the trial court for further proceedings consistent wit…
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Fla. Ins. Guar. Ass'n v. Giordano, 485 So. 2d 453 (Fla. 3d DCA 1986)…of an insurer to defend its insured is broader than, and distinct from, its duty to pay. Baron Oil Co. v. Nationwide Mutual Fire Insurance Co., 470 So. 2d 810 (Fla. 1st DCA 1985); Keller Industries, Inc. v. Employers Mutual Liability Insurance Co., 429 So. 2d 779 (Fla. 3d DCA 1983); Florida Farm Bureau Mutual Insurance Co. v. Rice, 393 So. 2d 552 (Fla. 1st DCA 1980), review denied, 399 So. 2d 1142 (Fla.1981). If the allegations of the complaint leave any doubts regarding the duty to defend, the question must…
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Marr Invs., Inc. v. Greco, 621 So. 2d 447 (Fla. 4th DCA 1993)…1993 to provide that appellant’s motion for attorney’s fees is granted contingent upon appellant ultimately being the prevailing party on the coverage issue or the issue of duty to defend. Keller Indus. v. Employers Mut. Liab. Ins. Co. of Wisconsin, 429 So. 2d 779 (Fla.3d DCA 1983) and Preuss v. United States Fire Ins. Co., 414 So. 2d 249 (Fla.4th DCA 1982). While the motion for rehearing was pending, appellees filed a motion to supplement the record with documentary evidence demonstrating that the claim in…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- LaMARCHE v. The Shelby Mut. Ins. Co. & Clearwater Prestige Homes, Inc., 390 So. 2d 325 (Fla. 1980)
- Strawgate v. Dorothea Chase Turner, 339 So. 2d 1112 (Fla. 1976)
- Fed. Ins. Co. v. Allan H. Applestein & the Allan H. Applestein Found. Tr. & Robert Mackin, 377 So. 2d 229 (Fla. 3d DCA 1979)
- C. A. Fielland, Inc. v. Fid. & Cas. Co. OF NEW York, 297 So. 2d 122 (Fla. 2d DCA 1974)
- Fla. Farm Bureau Mut. Ins. Co. v. Rice, 393 So. 2d 552 (Fla. 1st DCA 1980)
- Stevens v. Horne, 325 So. 2d 459 (Fla. 4th DCA 1975)
- Universal Underwriters Ins. Corp. v. Reynolds, 129 So. 2d 689 (Fla. 2d DCA 1961)
- Neimark v. John H. Abramson & Lani Abramson, 403 So. 2d 1057 (Fla. 3d DCA 1981)
- Atkins v. Keller, 400 So. 2d 168 (Fla. 3d DCA 1981)
- Jones v. Holiday Inns, Inc., 407 So. 2d 1032 (Fla. 1st DCA 1981)