Call us: 305.350.5300

Florida Construction Law News

15MAY 2017

Insurance Company Not Responsible For Paying Pre-Tender Legal Fees

by Robert H. de Flesco III, Esq.

Insurance carriers can breathe a little easier. The Eleventh Circuit recently ruled, in EmbroidMe.com, Inc. v. Travelers Property & Casualty Co. of America, that an insurer did not have to pay attorneys’ fees incurred by its insured before the insured notified it of the litigation.

31JAN 2017

Holding the Bag for Pre-Tender Defense Costs

by John J. Kozak, Esq.

For a variety of reasons, additional insureds (and even named insureds) under commercial general liability policies will sometimes wait months, and even years, to tender the defense of a claim or lawsuit, incurring significant legal fees in the interim. When the claim finally is tendered, a dispute often arises over who should pay the pre-tender defense costs. Surprisingly, there is very little Florida legal authority specifically dealing with this issue. However, the recent federal 11th Circuit Court of Appeals case of EmbroidMe.com, Inc. v. Travelers Property Casualty Co. of America, No. 14-10616, 2017 U.S. App. LEXIS 368 (11th Cir. Jan. 9, 2017), applying Florida law, addresses the issue head-on and provides CGL carriers with a large hammer in refusing to pay pre-tender fees.

06JAN 2017

The Importance of Notice Requirements in a Claims-Made Policy

by Felipe L. Meija, Esq.

The Southern District of New York recently made the importance of notice requirements in a claims-made policy abundantly clear.[1] Generally, there are two kinds of insurance policies: (1) claims-made; and (2) occurrence. The Florida Supreme Court defines an occurrence policy as “a policy in which coverage is effective if the negligent act or omission occurs within the policy period, regardless of the date of discovery or the date the claim is made or asserted.”[2] Conversely, its definition of a claims-made policy is a “policy wherein the coverage is effective if the negligent or omitted act is discovered and brought to the attention of the insurer within the policy term.”[3] The fundamental difference between the two forms of insurance is that under a claims-made policy, it does not matter when a negligent or omitted act actually took place. The important date is the date on which “a claim”[4] concerning the negligent or omitted act is made. The essence of a claims-made policy “is notice to the carrier within the policy period.”[5]

16SEP 2016

Whether There is a Duty to Defend an Indemnity Claim Against an Employer That Arises Out of an Employee’s Injury

by Daniel R. Duello

Most, if not all, commercial general liability policies contain a workers’ compensation exclusion, which have been widely interpreted to exclude claims made by employees directly against their employers.[i] However, that exclusion can be avoided in certain circumstances where a party that was liable for the employee’s injuries seeks indemnity back against the employer, as outlined in a recent South Florida case.[ii]

17AUG 2016

Eleventh Circuit Considers Whether the Chapter 558 Process Is a “Suit”

by Matan A. Scheier, Esq.

Recently, in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., the United States Court of Appeals for the Eleventh Circuit addressed an issue of first impression.[1] In Altman, the Eleventh Circuit evaluated whether an insurer has a duty to defend and indemnify an insured who receives a Notice of Claim pursuant to Chapter 558, Florida Statutes (“Notice of Claim”). The Southern District of Florida previously ruled that a Notice of Claim did not constitute a suit, and thus, does not trigger a duty to defend and indemnify. The insured then appealed that ruling to the Eleventh Circuit, which ruled that the terms “suit” and “civil proceeding,” as found in the subject Commercial General Liability (CGL) insurance policies, may be ambiguous as used in the policies.[2] Due to important public policy considerations, the Eleventh Circuit certified the following question to the Florida Supreme Court: “Is the notice and repair process set forth in Chapter 558 of the Florida Statutes a ‘suit’ within the meaning of the GCL policies issued by C&F to ACI?”[3]

15APR 2016

Federal Court Recently Finds No Coverage Under “Your Work” Exclusion

by Craig S. Distel, Esq.

The United States District Court for the Middle District of Florida recently rendered a decision in Auto-Owners Insurance Company v. Elite Homes, Inc.[1] addressing the duty to defend when a “your work” exclusion exists in Commercial General Liability (CGL) policy. In Elite Homes, Joseph and Emily Crozier sued Elite Homes, Inc. (“Elite”) in state court Read More…

01APR 2016

Risks to Consider When Entering into a Coblentz Agreement

by Albert Li, Esq.

When entering into a consent judgment that purports to assign rights under an insurance policy, both the assignee and insurer should be cautious of various issues that could preclude coverage. Some of these issues include whether the insured was an additional insured under the policy, whether the judgment is for damage/loss covered under the policy, Read More…

07MAR 2016

Don’t Plead Your Pass-Through CD Claims Out of Coverage

by Lisa Reyes

Failing to plead damage to other property, even in the face of record evidence supporting damage to other property, can result in a ruling that there is no duty to defend. In Florida, a commercial general liability (“CGL”) insurer’s duty to defend its insured is determined by examining whether the allegations in the complaint against Read More…

22JAN 2016

Attorney’s Fees Constitute Covered “Court Costs”

by David S. Harrigan, Esq.

In Mid-Continent Casualty Company v. James T. Treace, 41 Fla. L. Weekly D60c (Fla. 5th DCA Dec. 31, 2015), Florida’s Fifth District Court of Appeal recently held that attorney’s fees awarded to a Plaintiff in a construction defect action against an insured contractor were covered under a supplementary payment provision in a commercial general liability Read More…

19JUN 2015

Chapter 558: What Suits You May Not Suit Your Insurer – Florida Federal Court Determines that a Chapter 558 Notice of Claim Does Not Require Defense or Indemnity

by George Truitt, Jr., Esq.

The United States District Court for the Southern District of Florida recently issued an opinion in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., No. 13-80831-CIV, 2015 WL 3539755 (S.D. Fla. June 4, 2015), addressing an issue of first impression.  In Altman, the Court evaluated whether an insurer has a duty to defend Read More…