JIM BLACK & ASSOCIATES, INC., APPELLANT,
v.
TRANSCONTINENTAL INSURANCE COMPANY, APPELLEE
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Jim Black & Associates appeals a trial court's determination that Transcontinental Insurance Company is entitled to recover $101,246.71 in defense costs it incurred while defending Jim Black in a patent infringement suit, despite denying coverage under reservation of rights. The court affirms, holding that an insurer who defends under reservation of rights and whose lack of coverage duty is later established is entitled to reimbursement of defense costs.
The court affirms that Transcontinental is entitled to recover its defense costs, fees, and expenses totaling $101,246.71. An insurer who properly reserves rights, provides defense through mutually acceptable counsel that the insured agrees to, and is later determined to have had no duty to defend may recover those defense costs as reimbursement.
[1] An insurer that defends its insured under a reservation of rights is entitled to reimbursement of defense costs if it is later determined that the claims were not covered…
[2] An insured who accepts a defense provided by its insurer under a reservation of rights, and agrees to mutually agreeable counsel, is deemed to have agreed to the terms of…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Sending a reservation of rights letter and appointing mutually agreeable defense counsel is an appropriate action when an insurance company disputes coverage.”
Establishes that an insurer's procedure of reserving rights while defending is proper and accepted practice
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Join FLexlaw to unlock all legal intelligenceTranscontinental insured Jim Black & Associates under a commercial general liability policy. When Jim Black was sued by Pompanette LLC for patent infr…
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VILLANTI, Judge.
Transcontinental Insurance Company defended Jim Black & Associates, Inc., in a lawsuit brought by Pompanette, LLC, for patent infringement and unfair competition. Transcontinental disputed coverage but agreed to defend Jim Black under a reservation of rights. Because we found that Pompanette’s claims were not covered by Jim Black’s policy with Transcontinental, we remanded for the trial court to determine Transcontinental’s right to recover the costs of defense that it incurred while defending Jim Black. Transcon. Ins. Co. v. Jim Black & Assocs., Inc., 888 So. 2d 671 (Fla. 2d DCA 2004). Jim Black now appeals the trial court’s determination that Transcontinental was entitled to its defense costs, fees, and expenses totaling $101,246.71. We affirm the trial court’s determination of entitlement and write only to express our agreement with the First District’s opinion in Colony Insurance Co. v. G & E Tires & Service, Inc., 777 So. 2d 1034 (Fla. 1st DCA 2000). We reject without comment Jim Black’s argument that Transcontinental was not entitled to interest on its defense costs, fees, and expenses.
After Pompanette sued Jim Black in federal court for patent infringement and unfair competition, Transcontinental, through its attorneys, sent Jim Black a five-page letter via certified mail on February 14, 2002, explaining that “there is not coverage for the Pompanette claim under Jim Black’s commercial general liability policy” with Transcontinental. The letter further stated:
Despite the fact [Transcontinental] believes there is no coverage, [it] will for now provide a defense of the Pompan-ette claim to Jim Black under a complete and total reservation of rights. This defense will be afforded through Attorney C. Douglas McDonald of the Carlton, Fields law firm.... We understand they are mutually agreeable counsel. This will also confirm that in consideration for [Transcontinental’s] agreeing to the insured’s choice of counsel as mutually agreeable counsel, we have worked out an arrangement on a sharing of the defense costs....
[Transcontinental’s] total reservation of rights in this matter includes the right to file a declaratory judgment action with respect to the coverage issues present in this claim. Please be advised that if [Transcontinental] files a declaratory judgment action it will seek repayment of defense costs should [it] prevail in its declaratory judgment action.
We trust you understand our position. If you should have any questions or comments on [our] position, please do not hesitate to call.
Apparently, Jim Black did not question or comment on Transcontinental’s reservation of rights letter and, in fact, accepted Transcontinental’s defense using agreed-upon counsel.
Sending a reservation of rights letter and appointing mutually agreeable defense counsel is an appropriate action when an insurance company disputes coverage. Id. at 1037. Jim Black agreed to defense counsel and accepted the defense provided; thus, Jim Black “necessarily agreed to the terms” on which Transcontinental extended its offer to provide a defense. See id. at 1036. Transcontinental provided a defense for claims that were clearly not covered by its policy with Jim Black. Transcontinental did not bargain for these costs and has not been paid premiums to defend uncovered claims. See id. at 1038. Similar to the insured in Colony Insurance Co., Jim Black is “no worse off than if it had itself retained the lawyer” whom Transcontinental and Jim Black agreed should defend Pompanette’s claim. See id. at 1039. Now that it has been determined that Transcontinental never had a duty to defend, Transcontinental is entitled to reimbursement. See id. Therefore, we affirm.
Affirmed.
DAVIS and STRINGER, JJ., Concur.
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Pa. Lumbermens Mut. Ins. Co. v. Ind. Lumbermens Mut. Ins. Co., 43 So. 3d 182 (Fla. 4th DCA 2010)…reaching its contract of insurance by denying it a defense. In support of this argument, ILM relies on Colony Ins. Co. v. G & E Tires & Service, Inc., 777 So. 2d 1034 (Fla. 1st DCA 2000) and Jim Black & Associates, Inc. v. Transcontinental Ins. Co., 932 So. 2d 516 (Fla. 2d DCA 2006). In Colony Insurance, an insurance company repeatedly refused to defend its insured because it alleged that coverage did not apply. 777 So. 2d at 1035-36. Only after reserving its right to be reimbursed for defense costs incurred…
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Miglino v. Universal Prop. & Cas. Ins. Co. & Harvey Ira Stein, 174 So. 3d 479 (Fla. 4th DCA 2015)…oncur. . When an insurance company disputes coverage for one or more claims under an insurance policy, it may choose to provide a defense for an insured under a "reservation of rights.” See generally Jim Black & Assocs., Inc. v. Transcon. Ins. Co., 932 So. 2d 516, 517— 18 (Fla. 2d DCA 2006). Where it is ultimately determined that the insurance company had no duty to defend, under a proper reservation of rights, the insurance company may be entitled to reimbursement for its defense expenditures. See id. at 51…
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Nationwide Mut. Fire Ins. v. Royall, 588 F. Supp. 2d 1306 (M.D. Fla. 2008)…4 which permit insurers to recover costs and fees expended on behalf of an insured where there has been no duty to defend but the policy is nevertheless silent as to reimbursement. See Jim Black & Assocs., Inc. v. Transcontinental Ins. Co., 932 So.2d 516 (Fla. 2d DCA 2006); Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520 (Fla. 1st DCA 2003); Colony Ins. Co. v. G & E Tires & Serv., Inc., 777 So.2d 1034 (Fla. 1st DCA 2000). However, as evidenced by both parties’ reliance on these…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sanchez v. State, 777 So. 2d 1034 (Fla. 2d DCA 2000)
- Transcon. Ins. Co. v. JIM Black & Assocs., Inc., 888 So. 2d 671 (Fla. 2d DCA 2004)