AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLANT,
v.
MIAMI LEASING AND RENTALS, INC., A FLORIDA CORPORATION, APPELLEE
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An insurance company appealed a judgment requiring it to defend an insured against a malicious prosecution claim, including the punitive damages portion. The court held that when a complaint contains allegations both within and outside the policy's coverage, the insurer must defend all portions of the claim.
An insurer has a duty to defend all portions of a complaint against its insured when the complaint contains allegations that are partially within and partially outside the scope of the policy's coverage, even if some claims fall outside the coverage.
[1] An insurer has a duty to defend an insured when the complaint against the insured contains allegations that are partially within and partially outside the scope of the in…
[2] An insurer must defend even those portions of a complaint that are outside the scope of coverage when other portions of the complaint are within the scope of coverage.
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Join FLexlaw to unlock all legal intelligence“We agree with Miami Leasing that American Hardware has misconceived the issue as being one of coverage. The dispositive issue is whether American Hardware was under a duty to defend.”
Establishes that the duty to defend is distinct from coverage; the insurer cannot avoid defending by arguing lack of coverage.
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Join FLexlaw to unlock all legal intelligenceMiami Leasing and Rentals, Inc. was insured by American Hardware Mutual Insurance Company for personal injuries arising from malicious prosecution. Mi…
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PER CURIAM.
Defendant insurer appeals a final judgment on the pleadings awarding plaintiff insured $1,160.90 plus costs and attorney’s fees in an action seeking damages for the defendant’s breach of its duty to defend plaintiff.
Plaintiff, Miami Leasing and Rentals, Inc., was insured against all personal injuries arising from, inter alia, malicious prosecution under an insurance policy issued by the defendant-appellant, American Hardware Mutual Insurance Company. Miami Leasing was sued for malicious prosecution and the complainant sought both compensatory and punitive damages. American Hardware advised Miami Leasing that it would not defend on the punitive damages claim and Miami Leasing had to retain counsel to defend it on this claim. As a result Miami Leasing incurred costs and attorney’s fees in the sum of $1,160.90 and then filed the instant suit for recovery on the ground that American Hardware was obligated to defend its interests as to the punitive damages claim as well as the compensatory damages claim. American Hardware answered alleging that the subject policy did not protect Miami Leasing against a claim for punitive damages as asserted in the malicious prosecution lawsuit. Both parties filed motions for judgment on the pleadings and after hearing argument of counsel and reviewing written memoranda of law in support of the respective motions, the trial court entered final judgment for Miami Leasing. American Hardware appeals. We affirm.
We agree with Miami Leasing that American Hardware has misconceived the issue as being one of coverage. The dispositive issue is whether American Hardware was under a duty to defend. The well established law is that where the complaint against the insured contains allegations which are partially within and partially without the scope of the insured’s coverage, then the insurer must defend even those portions of the complaint which are outside the coverage. See Travelers Indemnity Company v. Thomas, 315 So. 2d 111 (Fla. 1st DCA 1975); Employers Commercial U. Ins. Co. of Am. v. Kottmeier, 323 So. 2d 605 (Fla. 2d DCA 1975); Stevens v. Horne, 325 So. 2d 459 (Fla. 4th DCA 1976).
Affirmed.
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Westmoreland v. Lumbermens Mut. Cas. Co., 704 So. 2d 176 (Fla. 4th DCA 1997)…578 So. 2d 296 (Fla. 3d DCA), rev. denied, 589 So. 2d 290 (Fla.1991); West American Ins. Co. v. Silverman, 378 So. 2d 28 (Fla. 4th DCA 1979), cert. denied, 389 So. 2d 1117 (Fla.1980); American Hardware Mut. Ins. Co. v. Miami Leasing & Rentals, Inc., 362 So. 2d 28 (Fla. 3d DCA 1978). Moreover, when the issue of the insurer’s duty to defend is decided in favor of the insured in a declaratory action, questions regarding the duty to indemnify should be reserved until the issue of the insured’s liability is deter…
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Tire Kingdom, Inc. v. First S. Ins. Co., 573 So. 2d 885 (Fla. 3d DCA 1990)…ions do not, the insurer must provide a defense on the entire suit. Tropical Park, Inc. v. United States Fidelity and Guaranty Company, 357 So. 2d 253 (Fla. 3d DCA 1978); American Hardware Mutual Insurance Company v. Miami Leasing and Rentals, Inc., 362 So. 2d 28 (Fla. 3d DCA 1978). Since there were some allegations in the Norton Tire Co. complaint which were not subject to policy exclusions, Tire Kingdom was entitled to coverage. First Southern, therefore, was obligated to defend Tire Kingdom on all of the…
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Sunshine Birds & Supplies, Inc. v. United States Fid. & Guar. Co. & Fid. & Guar. Ins. Underwriters, Inc., 696 So. 2d 907 (Fla. 3d DCA 1997)…nd entire suit), rev. denied 621 So. 2d 1065 (Fla.1993); Metro Dade County v. Florida Aviation Fueling Co., 578 So. 2d 296, 298 (Fla. 3d DCA), rev. denied 589 So. 2d 290 (Fla.1991); American Hardware Mut. Ins. Co. v. Miami Leasing and Rentals, Inc., 362 So. 2d 28, 28-29 (Fla. 3d DCA 1978). Moreover, any doubt about an insurer’s duty to defend must be resolved in favor of the insured. See Grissom, 610 So. 2d at 1307; Florida Ins. Guar. Ass’n. v. Giordano, 485 So. 2d 453, 456 (Fla. 3d DCA 1986); Baron Oil Co.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stevens v. Horne, 325 So. 2d 459 (Fla. 4th DCA 1975)
- Emp'rs Commercial Union Ins. Co. of Am. v. Charles A. Kottmeier, M.D., 323 So. 2d 605 (Fla. 2d DCA 1975)
- The Travelers Indem. Co. v. Thomas, 315 So. 2d 111 (Fla. 1st DCA 1975)