5D04-122 FCCI Ins. v. Horne

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-122

Case Date: 12/06/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2004

FCCI INSURANCE COMPANY, Appellant, v. JEANETTE A. HORNE, etc., et al., Appellees. ______________________________/ Opinion filed December 10, 2004 Appeal from the Circuit Court for Seminole County, Donna L. McIntosh, Judge. Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellant. Chris Ballentine of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee One Beacon Insurance Company. Angela C. Flowers of Kubicki Draper, Miami, for Appellee Modern Continental South, Inc. No Appearance for Appellees Jeanette A. Horne, et al. SHARP, W., J. The issue in this case is whether an insurer must honor its contractual obligation to defend or indemnify its insured under a liability policy which applies to bodily injury by "accident" and excludes intentionally caused injury where it is alleged the insured engaged in conduct "substantially certain to result CASE NO. 5D04-122

in serious injury or death." We conclude that, under the facts in this case, the insurer must do so and affirm the judgment below. 1 Appellant FCCI insurance Company provided both workers' compensation and employer's liability insurance to its insured Scarborough Civil Company. On July 25, 2000, two Scarborough workers,

Horne and Creason, died when a trench in which they were working caved in and completely buried them. The families of Horne and Creason received workers' compensation benefits from FCCI. The estates of both workers also filed wrongful death actions against Scarborough and other defendants. To avoid Scarborough's immunity provided by the workers' compensation law, the estates alleged Scarborough engaged in conduct which was "substantially certain to result in serious injury or death."2 FCCI then filed this declaratory judgment action against the estates and others seeking a determination that its liability policy did not require it to defend or indemnify Scarborough.3 FCCI moved for summary judgment, arguing in part that the complaints in the wrongful death actions failed to establish a covered "accident" and in fact, alleged intentional conduct which is excluded from coverage. The trial

The Court of Appeals for the Eleventh Circuit has certified questions on this same issue to the Florida Supreme Court but those questions have not yet been answered. See Travelers Indem. Co. v. PCR Inc., 326 F.3d 1190 (11th Cir. 2003)
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See Appendix. FCCI was defending Scarborough in both actions under a reservation of rights. 2

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court disagreed and entered summary judgment for the defendants. Our review of this issue is de novo.4

We begin our analysis by noting that insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties. Florida law has long followed the general rule that tort law principles do not control judicial construction of insurance contracts. Prudential Property & Cas. Ins. Co. v. Swindal, 622 So. 2d 467 (Fla. 1993). In construing insurance contracts, the courts generally apply a liberal interpretation to coverage provisions. On the other hand, exclusion clauses are considered contrary to the fundamental protective purposes of insurance. Thus courts give a strict interpretation to exclusion clauses. Hrynkiw v. Allstate Floridian Ins. Co., 844 So. 2d 739 (Fla. 5th DCA 2003); Purrelli v. State Farm Fire & Cas. Co., 698 So. 2d 618 (Fla. 2d DCA 1997). In addition, if any ambiguity is found in an insurance policy, it is construed against the insurer. Deni Associates of Florida, Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135 (Fla.1998); Premier Ins. Co. v. Adams, 632 So.2d 1054 (Fla. 5th DCA 1994). Here, the liability policy issued to Scarborough applies to "bodily injuryby accident or bodily injury by disease." The policy further provides that it does not cover "bodily injury intentionally caused or aggravated by [Scarborough]." (emphasis in both added) The policy does not further define what is meant by "accident" or "intentionally."

The standard of review for the interpretation of an insurance contract is de novo. State Farm Mutual Automobile Ins. Co. v. Parrish, 873 So. 2d 547 (Fla. 5th DCA 2004); Paladyne Corp. v. Weindruch, 867 So. 2d 630 (Fla. 5th DCA 2004). The standard of review for summary judgments is also de novo. Kaplan v. Morse, 870 So. 2d 934 (Fla. 5th DCA 2004); Mivan (Florida), Inc. v. Metric Constructors, Inc., 857 So. 2d 901 (Fla. 5th DCA 2003). 3

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The problem arises in this case because the wrongful death actions alleged a type of intentional tort so as to avoid Scarborough's workers' compensation immunity. Workers' compensation generally is the exclusive remedy for the employee's injury or death arising out of work performed in the course or scope of his or her employment. Thus, absent an exception, the workers' compensation law provides employers with immunity from liability for an employee's injury beyond workers' compensation benefits. Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000); Allstates Fireproofing, Inc. v. Garcia, 876 So. 2d 1222 (Fla. 4th DCA 2004). One exception to the workers' compensation immunity is the so-called "intentional tort" exception. In Turner, the Florida Supreme Court reaffirmed prior decisions that the workers' compensation law does not protect an employer from liability for an intentional tort against an employee. See also Folds v. J.A. Jones Constr. Co., 875 So. 2d 700 (Fla. 1st DCA 2004) (one exception to the bar of workers' compensation immunity is that an injured employee may sue the employer for an intentional tort); Glasspoole v. Konover Constr. Corp. South, 787 So. 2d 937 (Fla. 4th DCA 2001)(workers' compensation law does not protect an employer for liability for an intentional tort against an employee). For purposes of this exception, an employee has two alternative ways to prove an intentional tort by the employer: 1) the employer exhibited a deliberate intent to injure or 2) the employer engaged in conduct which is "substantially certain" to result in injury or death. Turner. The first alternative employs a subjective test. The second alternative applies an objective test to determine whether a reasonable employer should have known that its intentional conduct was substantially certain to result in injury or death.

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Turner; Glasspoole. Under the second alternative, the employer's actual intent is not controlling. Turner.
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Here both wrongful death actions alleged that Scarborough engaged in conduct "substantially certain to result in serious injury or death." By alleging that Scarborough's conduct was substantially "certain" to result in injury, FCCI argues the complaints themselves established the incident cannot be an "accident" and would fall within the exclusion for intentional acts by the insured. Apparently few insurance policy terms have provoked more controversy in litigation than the word "accident." CTC Development Corp., Inc. v. State Farm Fire & Cas. Co., 704 So. 2d 579, 581 (Fla. 1st DCA 1997) (Van Nortwick, J., concurring), approved, 720 So.2d 1072 (Fla 1998). When not otherwise expressly defined or clarified by language in the policy itself, the word "accident" has been given various meanings with no uniform agreement on a single accepted definition. Grissom v. Commercial Union Ins. Co., 610 So. 2d 1299 (Fla. 1st DCA 1992), rev. denied, 621 So.2d 1065 (Fla. 1993). In Grissom , the court observed that Florida cases consistently have held that liability policies covering "accidents" apply to injury or damage caused by the insured's intentional acts so long as the insured did not intend to cause any harm . In State Farm Fire & Cas. Co. v. CTC Development Corp., 720 So.2d 1072 (Fla.1998), the Florida Supreme Court explained: We hold that where the term "accident" in a liability policy is not defined, the term, being susceptible to varying interpretations, encompasses not only "accidental events," but also injuries or damage

In 2003, the Legislature amended section 440.11(1) and overruled Turner in part. The amendment codified the intentional tort exception recognized by Turner but, among other things, replaced the "substantial certainty" standard with the higher standard of "virtually certain." Feraci v. Grundy Marine Const. Co., 315 F.Supp.2d 1197, 1205 n. 11 (N.D .Fl. 2004). The amendment is not retroactive and would not apply here since the incident occurred in 2000. Id. 5

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neither expected nor intended from the standpoint of the insured. This definition comports with the language used in standard comprehensive general liability policies and with the definition of the term "accidental" set forth in Dimmitt as "unexpected or unintended." 636 So.2d at 704. In many cases the question of whether the injury or damages were unintended or unexpected will be a question of fact; in some cases, the question will be decided as a matter of law, such as in cases where the insured's actions were so inherently dangerous or harmful that injury was sure to follow. See, e.g., Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla.1989)(harm always results from sexual abuse so that any intent to commit abuse necessarily carries with it an intent to commit harm). As Justice Souter stated while a member of the New Hampshire Supreme Court, "If the insured did not intend to inflict the injury on the victim by his intentional act, and the act was not so inherently injurious that the injury was certain to follow from it, the act as a contributing cause of injury would be regarded as accidental and an 'occurrence.' " Vermont Mutual Ins. Co. v. Malcolm , 128 N.H. 521, 517 A.2d 800, 803 (N.H.1986). 720 So.2d at 1076. Here the estates alleged only that injury or death was substantially certain to result from Scarborough's conduct. Since there were no allegations Scarborough intended to cause any harm to its workers, we conclude the incident falls within the scope of an "accident" under the liability policy. See State Farm Fire & Cas. Co. v. CTC Development Corp (builder's mistaken belief that he had received a variance to construct house outside setback line was an "accident" and thus an "occurrence" within meaning of contractor's liability insurance policy, even though builder intentionally constructed the house knowing that it was outside the line); Grissom (unintentional damage which resulted from intentional filling of water course was an "accident" under policy). We also conclude these allegations do not fall within the"intentional" act exclusion of the policy. In Ziebart Int'l Corp. v. CNA Ins. Co., 78 F.3d 245 (6th Cir. 1996), the court noted that Michigan's

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workers' compensation law recognizes two distinct kinds of intentional torts: 1) the "true" intentional tort in which an employer specifically intended an injury, and 2) a tort in which the employer has actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. With regard to the second type of tort, the term "intentional tort" is something of a misnomer since intent is not required. Id. Florida's workers' compensation law likewise recognizes two distinct kinds of intentional torts - the subjective "deliberate intent" to injure tort and the objective "substantially certain" to result in injury or death tort. Turner. The wrongful death actions alleged the"substantially certain" type of intentional tort and not a "true" intentional tort.6 In a substantially similar case involving a trench cave-in, the court held that allegations the injury was "substantially certain" to occur did not result in the incident falling under the liability policy's exclusion for bodily injury or damage "intentionally" caused by the insured. Royal Indemnity Co. v.

Soneco/Northeastern, Inc., 183 F. Supp. 2d 526 (Dist. Ct. Conn. 2002). In that case, two Soneco workers were injured from a trench cave-in while attempting to rescue a co-worker. They filed suit against Soneco and alleged intentional reckless misconduct so as to circumvent Soneco's workers' compensation

Since the wrongful death actions involve only the "substantially certain" type of intentional torts, public policy would not bar coverage as it does in cases involving "true"intentional torts. Compare Mason v. Florida Sheriffs' Self-Insurance Fund, 699 So.2d 268 (Fla. 5th DCA 1997)(public policy precludes coverage for deputy's demand for sexual intercourse in return for not serving arrest warrant); Lindheimer v. St. Paul Fire and Marine Ins. Co., 643 So.2d 636 (Fla. 3d DCA1994), rev. denied, 651 So.2d 1194 (Fla. 1995)(public policy precludes professional liability insurance coverage for sexual assault of patient).

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immunity. By doing so, Soneco's insurance company (Royal Indemnity) claimed the incident clearly fell within the policy's exclusion for intentional injuries. Since the workers had not alleged a "true" intentional tort, the court found their claims did not fall within the exclusion: The specific allegations in the ... complaints reference intentional acts and omissions by Soneco

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