TRANSAMERICA INSURANCE COMPANY, APPELLANT,
v.
GEOFFREY T. SNELL AND ROBERT W. TISON AND ASSOCIATES, INC., A FLORIDA CORPORATION; ROBERT W. TISON, INDIVIDUALLY; CAROLYN C. KRAUS, INDIVIDUALLY; AND THE DEPARTMENT OF INSURANCE, STATE OF FLORIDA, APPELLEES

Fla. 1st DCA | 1993-12-09
No. 92-2524
ERVIN and LAWRENCE, JJ., concur.
627 So. 2d 1275 Florida District Court of Appeal, First District (1993) Positive Treatment
Cited by 9 cases

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Synopsis

Transamerica Insurance Company appeals a summary judgment declaring coverage available under an errors and omissions policy issued to an insurance agency. The court reversed, holding that the policy's insolvency exclusion bars coverage for claims arising out of the insolvency of an organization in which the insured placed client funds or obtained coverage.


Holding

The insolvency exclusion applies and bars coverage because Snell's claim arose out of FHBHBT's insolvency. The exclusion's language "arising out of" is more expansive than mere causation, and the concurrent cause doctrine does not apply when the multiple causes are related and dependent rather than separate and distinct risks.


Headnotes

[1] An insurance policy exclusion for claims "arising out of" insolvency applies to claims that are fundamentally based on the insolvency, not just those where insolvency is…

[2] The concurrent cause doctrine, which allows coverage when an insured risk is one of multiple causes of loss, is inapplicable when the multiple causes are related and depe…

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Key Quotes

“This policy does not apply to: ... Any claim arising out of insolvency, receivership, or bankruptcy of any organization (directly or indirectly) in which the "insured" has placed or obtained coverage or in which an "insured" has placed the funds of a client or account.”

The operative exclusion clause in the Transamerica policy that the court applied to bar coverage

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Facts & Procedural History

Tison and Associates, an insurance agency, obtained group health insurance for its client Geoffrey Snell through the Florida Homebuilders Health Benef…

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Opinion of the Court
ALLEN, Judge.

ALLEN, Judge.

Transameriea Insurance Company appeals a summary final declaratory judgment determining that coverage is available under a policy of insurance which Transameriea issued for the appellee Robert W. Tison and Associates, Inc. (Tison and Associates). We conclude that such coverage is not available in this ease, as the court should have applied the policy’s insolvency exclusion.

Tison and Associates is an insurance agency operated by the appellee Robert Tison, and is insured under an errors and omissions policy with Transameriea. Tison provided the appellee Geoffrey Snell’s employer with a group health policy through the Florida Homebuilders Health Benefits Trust (FHBHBT). When Snell pursued a claim under this group health policy he discovered that FHBHBT had become financially unable to pay its claims. FHBHBT was eventually placed in receivership with directions for liquidation. Snell then sued Tison and Associates, as well as Tison himself and several other defendants, alleging breach of contract and negligence in providing and maintaining the group health insurance through FHBHBT, rather than through a financially sound insurer. Snell also sought a declaratory judgment regarding Transamerica’s liability as Tison’s errors and omissions insurer. The Transameriea policy includes coverage for errors and omissions by Tison and Associates’ agents in the rendering of, or in failing to render, professional services as insurance agents. However, the policy contains an exclusion stating that:

This policy does not apply to: ... Any claim arising out of insolvency, receivership, or bankruptcy of any organization (directly or indirectly) in which the “insured” has placed or obtained coverage or in which an'“insured” has placed the funds of a client or account.

The court declined to apply this exclusion because Snell’s complaint contains allegations of negligence as a cause of the asserted loss. But the insolvency exclusion in the Trans-america policy is addressed to claims “arising out of’ insolvency, which is a much more encompassing standard than mere causation. See Novak v. Government Employees Ins., 424 So. 2d 178, 179 (Fla. 4th DCA 1983), approved, 453 So. 2d 1116 (Fla.1984). Although Novak involved a different kind of insurance policy, the distinction which that ease made between “arising” and causation is equally applicable in the present case, and it is clear that Snell’s claim did arise out of FHBHBT’s insolvency.

The appellees contend that coverage might still be afforded pursuant to the concurrent cause doctrine, which permits coverage when a loss results from multiple causes, as long as one of the causes is an insured risk. See Wallach v. Rosenberg, 527 So. 2d 1386 (Fla. 3d DCA), rev. denied, 536 So. 2d 246 (Fla.1988). However, this doctrine is applicable only when the multiple causes are not related and dependent, and involve a separate and distinct risk. See Citizens Sec. Mut. Ins. v. Levinson, 445 N.W. 2d 585 (Minn.Ct.App.1989); Auto-Owners Ins. v. Selisker, 435 N.W. 2d 866 (Minn.Ct.App.), rev. denied, (Apr. 24, 1989). Since Snell’s asserted loss is ultimately predicated on FHBHBT’s insolvency, any actionable negligence by Tison and Associates’ agents is necessarily related to such insolvency, thus precluding resort to the concurrent cause doctrine. See also Krempl v. Unigard Sec. Ins. Co., 69 Wash.App. 703, 850 P. 2d 533 (1993); Dalrymple v. Ihnen Pool Serv. & Supply, 498 So. 2d 646 (Fla. 4th DCA 1986).

Our conclusion that Snell’s action arises out of FHBHBT’s insolvency, and that Tison and Associates is thus not afforded coverage under the Transamerica policy due to the insolvency exclusion, accords with the ruling of several other courts which have considered very similar situations. See Kleneic v. White Lake Marine, 144 A.D.2d 341, 533 N.Y.S.2d 909 (1988); St. Paul Fire & Marine Ins. v. Cohen-Walker, Inc., 171 Ga.App. 542, 320 S.E. 2d 385 (1984); see also, Barron v. Scaife, 535 So. 2d 830 (La.Ct.App.1988). As in those cases, Snell’s action against Tison and Associates is within the clear and unambiguous insolvency exclusion of the Transamerica policy, and Tison and Associates is thus not covered for this risk under the Transamerica policy.

The appealed order is reversed and the cause remanded.

ERVIN and LAWRENCE, JJ., concur.


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Citator

Cited By

  • Hrynkiw v. Allstate Floridian Ins. Co., 844 So. 2d 739 (Fla. 5th DCA 2003)
    …auses are not related and dependent, but rather involve separate and distinct risks. American Sur. & Cas. Co. v. Lake Jackson Pizza, Inc., 788 So. 2d 1096 (Fla. 1st DCA 2001), review denied, 814 So. 2d 439 (Fla.2002); Transamerica Ins. Co. v. Snell, 627 So. 2d 1275 (Fla. 1st DCA 1993), review denied, 639 So. 2d 981 (Fla.1994). Based on the record in the instant case, we are unable to say that the alleged acts of negligent supervision and failure to properly secure the firearm are sufficiently separate and dist…
  • Am. Sur. & Cas. Co. v. Lake Jackson Pizza, Inc., 788 So. 2d 1096 (Fla. 1st DCA 2001)
    …aining or supervision. Nevertheless, under the policy at issue there was no duty to defend such a claim. We also determine that there is no duty to defend or indemnify under the concurrent cause doctrine. In Transamerica Insurance Company v. Snell, 627 So. 2d 1275 (Fla. 1st DCA 1993), review denied, 639 So. 2d 981 (Fla.1994), an argument was made that insurance coverage might be afforded pursuant to the concurrent cause doctrine, which permits coverage when a loss results from multiple causes, as long as one…
  • Am. Home Assurance Co., Inc. v. Sebo, 141 So. 3d 195 (Fla. 2d DCA 2013)
    …(Fla. 5th DCA 1996) (Goshorn, J., dissenting), cited Wallach’s concurring causation language, but that case involved tort liability under a commercial general liability policy; it was not a first-party case. See also Transamerica Ins. Co. v. Snell, 627 So. 2d 1275 (Fla. 1st DCA 1993) (citing the concurrent causation doctrine in a case involving an errors and omissions policy where Snell sued Transamerica’s insured for negligence, a third-party case).3 [*201] Against this sparse background of precedents, we di…

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