November 30th, 2015
By Molly A. Chafe, Esquire
In Florida, communications between a lawyer and a client are “confidential” and, barring exception, not subject to disclosure. See Fla. Stat. § 90.502. One exception is the “joint client” exception to attorney-client privilege. See Fla. Stat. § 90.502(4)(e). The exception applies only when an attorney represents two parties “in common” who later are opponents in a civil action.
An attorney may represent clients jointly, so long as the joint representation does not entail a conflict of interest and the clients request or agree to the joint representation. This often comes into play in the insurance context, when a liability insurer hires an attorney to defend a policyholder; this relationship is called a “tripartite relationship” (insurer, insured and insured’s counsel). Despite having three parties to this relationship, parties to this relationship can assert attorney-client privilege and work-product.
However, when an insurer denies coverage, asserts a defense to coverage, or issues a reservation of rights under an insurance policy, the interests of the insurer and insured are in direct conflict. Univ. of Miami v. Great Am. Assur. Co., 112 So. 3d 504, 507 (Fla. 3d DCA 2013). Under such circumstances, both parties need their own counsel and an attorney generally may not represent both the insurer and the insured.Id. Thus, the tripartite relationship is broken.
However, the United States District Court for the Southern District in Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 2011 WL 3918597 *1 (S.D. Fla. Sept. 6, 2011), held that an insurer was entitled to discovery of otherwise protected attorney client communications and attorney work product from the underlying case because of the existence of a common interest between the insurer and the insured and because the insured put defense counsel work product “at issue” by challenging the insurer’s allocation assessment.
The insured initiated coverage litigation against the insurer for breach of a D&O policy, disputing the insurer’s allocation between covered and uncovered amounts with respect to the defense and settlement of four separate lawsuits. Id. at *1. The insurer sought discovery of all communications between the insured and its defense counsel concerning the underlying matters and assessments made by the insured or defense counsel concerning the insured’s liability and the settlement value of the litigation. Id. The insured objected to this discovery, arguing that the information sought was protected by Florida’s attorney client privilege and federal law’s attorney work product doctrine. Id.
The Southern District rejected the insured’s argument after a hearing on a motion to compel, finding that the applicability of the work product doctrine in this case turned on federal law notwithstanding that the documents at issue were prepared in connection with state court litigation. Id. at *2. Thus under federal law, the court determined that the insured waived the protection afforded by the doctrine with respect to defense counsel’s assessment of liability and damages in the underlying litigation by putting that assessment “at issue.” Id. at *5. The court held that because the insured brought suit against the insurer, the insured could not preclude the discovery of information that was vital to the insurer’s defense that its allocation method was appropriate as compared to the allocation method pressed by the insured. Id.
Next, the court held that the insurer was entitled to the discovery of information that otherwise would be protected from disclosure by the privilege afforded attorney-client communications under Florida law. Id. at *5. According to the court, the insured could not claim this privilege as to the insurer because of the existence of a common interest between the insured and insurer with respect to the underlying litigation.Id. Specifically, the court found that the insured and insurer “shared a common interest in defeating liability in the underlying proceedings.”Id. Specifically, the court rejected the insured’s arguments that there was no common interest here because the insurer did not have a duty to defend under the policy and because the insurer had issued a reservation of rights letter. Id. at *6.
November 22nd, 2015
By, Alexander Brockmeyer, Esq.
Preservation of error is a concept litigators know all too well. Generally, to raise an error on appeal a litigant must object at trial when the alleged error occurs. F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) (citing J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998)). “The contemporaneous objection requirement originated in the English legal system as a mechanism for preserving error for appellate review, and the requirement was carried forward and generally adopted in America. Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1016 (Fla. 2000) (citations omitted). The Florida Supreme Court explained the rationale of the objection requirement as being:
“…based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him [or her] an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.” Id. (quoting Castor v. State, 365 So. 2d 701, 703 (Fla. 1978)).
However, how does a litigant preserve an alleged error of defect that appears for the first time in a judgment? File a motion for rehearing. Generally, a litigant need not file a motion for rehearing if he or she is “displeased with a trial court’s decision on a matter because it found the opposing argument more persuasive….” Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321, 324 (Fla. 1st DCA 2011). However, Florida’s appellate courts require a litigant to file a motion for rehearing in order to preserve an error appearing for the first time in the judgment itself, an error that occurred at trial, or a judgment entered after a jury trial. Id.; New Hampshire Indem Co. v. Gray, 2015 WL 5845240, *2 (Fla. 1st DCA 2015); Lake Sarasota, Inc. v. Pan. Am. Sur. Co., 140 So. 2d 139, 142 (Fla. 2d DCA 1962).
Therefore, the next time you receive a final judgment ask yourself, should I file for rehearing? If the final judgment contains something you are seeing for the first time, the answer is most likely yes. Failure to do so may result in the appellate court refusing to consider an otherwise meritorious argument based on preservation issues.
November 19th, 2015
The Eleventh Circuit’s Decision in Carithers v. Mid-Continent Cas. Co., 782 F.3d 1240 (11th Cir. 2015)
By: Amanda K. Anderson, Esquire
Prior to the Eleventh Circuit’s recent decision in Carithers, the law surrounding the removal and replacement of the defective work itself, even if it caused “property damage”, was less than clear. SeeBoran Craig Barber Homes v. Mid-Continent, No. 2:06-cv-89 – Doc. 262 (M.D. Fla. Feb. 19, 2009); Arnett v. Mid-Continent Cas. Co.,2010WL2821981 (S.D. Fla. 2010); Assurance Company of America v. Lucas Waterproofing Co. Inc., 581 F.Supp.2d 1201 (S.D. Fla.2008).
In Carithers, the district court found that a balcony was defectively constructed, which caused damage to a garage. Carithers v. Mid-Continent Cas. Co., 782 F.3d 1240 (11th Cir. 2015). The district court also recognized that, under Florida law, the defectively constructed balcony was not covered by the policy. Id. However, the district court found as a fact that, in order to repair the garage (which the parties agree constituted property damage), the balcony had to be rebuilt. Id.
The insurer, Mid–Continent Casualty Company (“MCC”), did not contend that this factual finding was clearly erroneous. Id.Rather, MCC claimed that the Carithers cannot recover for any defective work, even where repairing that work is a necessary cost of repairing work for which there is coverage. Id.
The Eleventh Circuit held that the district court did not err in awarding damages for the cost of repairing the balcony. Id. Under Florida law, the Carithers had a right to “the costs of repairing damage caused by the defective work….” U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 889 (Fla. 2007). Since the district court determined that repairing the balcony was part of the cost of repairing the garage, which was defective work, the Carithers were entitled to these damages.Carithers, 782 F.3d at 1251. Thus, the Eleventh Circuit has clarified that removal and replacement of the defective work itself is covered a “damages because of ‘property damage’”.
November 12th, 2015
By, Mark A. Boyle, Esq.
Does the Commercial General Liability (“CGL”) cover the cost to mitigate against future property damage? In other words, does the CGL cover “preventative medicine?” The answer in Florida appears to be yes.
An issue that regularly appears in construction defect litigation is the question of whether or not a commercial general liability insurer is required to pay for repairs to areas of the project which have not yet sustained physical damage, but are likely or virtually certain to sustain such damage in the future. Florida had no specific answer to whether such claims were covered in the past, until, the recent decision of Pavarini Construction Co. v. ACE American Insurance Company, case no.: 1:14-cv-20524-JLK (Amended Order dated 10-30-15). In Pavarini, ACE was the commercial general liability insurer for Pavarini Construction Co. Pavarini was seeking coverage for a series of defective construction conditions. ACE was an excess CGL insurer, whose following form policy necessarily imported the standard CGL property damage definition found in the underlying policy issued by AIG. In relevant part, the property damage definition in the CGL policy provides:
Property damage means:
- Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
- Loss of use of tangible property that is not physically injured. All such loss shall be deemed to occur at the time of the occurrence that caused it.
In addressing this issue, the Pavarini court noted the relatively recent Florida Supreme Court decision in J.S.U.B. recognizing that defective construction conditions could constitute both a covered “occurrence” and “property damage” within the meaning of a CGL policy. ACE took the position that the mere existence of defective conditions did not trigger coverage and thus, they had very limited obligations. Citing the recent 11thCircuit Court of Appeals decision in Carithers v. Mid-Continent Casualty Co., 782 F. 3d 1240 (11th Cir. 2015), the Pavarini Court noted:
There, a balcony that had been defectively installed by a subcontractor was causing runoff and resulting water damage to an adjacent garage. See Id.Although the balcony itself did not constitute independent “property damage” under the terms of the policy, its replacement was necessary in order to effectively repair the garage. See Id. At 1251. “In other words, to repair the garage, it was necessary to completely replace the defectively constructed balcony.” Memorandum and Order, Carithers v. Mid-Continent Cas. Co., No. 12-008890 (M.D. Fla. Mar. 11, 2014), DE 126 at 8. Similarly here, in order to adequately repair the non-defective project components, the building had to be stabilized. Even if the predominant objective of the repair effort was to fix the instability caused by the defective subcontractor work, it is undisputed that the same effort was required to put an end to ongoing damage to otherwise non-defective property, e.g. damage to stucco, penthouse enclosure, and critical concrete structural elements. See DE 128 at 2-3; DE 131 at 52-63. Thus, the ACE policy provides for complete indemnification.
In addition to these holdings, the Court noted the following in a footnote.
Citing J.S.U.B, Defendant argues somewhat incidentally that mitigation of damages is not covered. Nowhere in J.S.U.B. is mitigation of damages mentioned. On the contrary, J.S.U.B.stands for the proposition that claims for repairing structural damage caused by the defective work of subcontractors may be covered. As a natural corollary, coverage may exist for costs to repair defective work in order to prevent further structural damage and covered loss. See, e.g. Carithers v. Mid-Continent Cas. Co., 782 F. 3d 1240, 1251 (11th Cir. 2015). [Emphasis Added]
The Court’s holding is consistent with numerous decisions across the country, finding that damage mitigation, once the property damage threshold has been established as an initial matter, are covered. See, e.g., AIU Ins. Co. v. Super. Ct., 799 P.2d 1253, 1272 (Cal. 1990) (coverage for “remedial and mitigative actions”); Globe Indem. Co. v. State, 118 Cal. Rptr. 75, 79 (Ct. App. 1974) (explaining that it would “seem strangely incongruous” to the insured “that his policy would cover him for damages to tangible property destroyed through his negligence in allowing a fire to escape but not for the sums incurred in mitigating such damages by suppressing the fire”); Am. Econ. Ins. Co. v. Commons, 552 P.2d 612, 613-14 (Or. Ct. App. 1976) (adopting rationale of Globe Indem.); Aronson Assocs., Inc. v. Pa. Nat’l Mut. Cas. Ins. Co., 14 Pa. D. & C.3d 1, 7 (C.P. 1977), aff’d 422 A.2d 689 (Pa. Super. 1979) (per curiam) (“preventive measures can be recovered where they are required to protect against a third person being harmed.”).
Indeed, “[t]o find otherwise would require the insured to intentionally allow property damage or bodily harm to occur for the damages to be covered.” Big-D Constr. Corp. v. Take it for Granite Too, 917 F. Supp. 2d 1096, 1109 (D. Nev. 2013). As explained by one court: It is folly to argue that if a policy owner does nothing and thereby permits the piling up of mountainous claims at the eventual expense of the insurance carrier, he will be held harmless of all liability, but if he makes a reasonable expenditure and prevents a catastrophe he must do so at his own cost and expense.
Leebov v. U.S. Fid. & Guar. Co., 165 A. 2d 82, 84 (Pa. 1960).
So, for now, in Florida, mitigation damages are here to stay.
November 6th, 2015
By, Justin M. Thomas, Esq.
Recently, Security First Insurance Company sought administrative review of the Florida Office of Insurance Regulation’s (“OIR”) denial of requested changes to their homeowner’s insurance policies issued in Florida, which operated to prohibit post-lost assignments without the company’s approval. Security First Ins. Co. v. State of Florida Office of Ins. Reg. 2015 WL 36446925 (Fla. 1st DCA June 22, 2015). The Court affirmed the decision of the OIR relying primarily on the storied history of Florida jurisprudence that approved of the exact conduct Security First sought to eliminate.
On rehearing, Security urged the First District Court of Appeal to certify conflict to the Florida Supreme Court. Security First Ins. Co. v. State of Florida Office of Ins. Reg. 2015 WL 36446925 (Fla. 1st DCA October 26, 2015). The court declined this request based on Florida’s existing authority that permits assignment of post-loss rights. In doing so, however, the court acknowledged the existence of a narrow statutorily imposed exception to this general rule with regard to health insurance claims. In the healthcare context, both Florida Courts and Legislature have acknowledged the existence of significant public policy considerations require a prohibition on the assignment of health care claims. The Security First Court, however, recognized the distinction and elected not to extend the exception beyond the health insurance arena.
The Security First holding is consistent with the recent Fifth District Court of Appeal of Accident Cleaners, Inc. v. Universal Ins. Co. 2015 WL 1609973 (Fla. 5th DCA April 10, 2015), which also recognized approved of the assignability of post loss claims. However, the Accident Cleaners Court went further in acknowledging that assignees are not required to have an insurable interest at the time of loss in order to sue the insurer. In doing so, the Accident Cleaners Court pronounced Florida’s long history in approving post loss assignments of insurance rights and the entitlement of the assignee to enforce the same:
[d]ating back to 1917, the Florida Supreme Court recognized that provisions in insurance contracts requiring consent to assignment of the policy do not apply to assignment after loss. W. Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209, 210–11 (1917); see Cont’l Cas. Co. v. Ryan Inc. E., 974 So. 2d 368, 377 n. 7 (Fla. 2008) (reaffirming the principle from W. Fla. Grocery Co. that the law is well-settled that anti-assignment provisions do not apply after loss); Lexington Ins. Co. v. Simkins Indus., Inc., 704 So. 2d 1384, 1386 n. 3 (Fla.1998) (“[A]n insured may assign insurance proceeds to a third party after a loss, even without the consent of the insurer.” (citing Better Constr., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 651 So.2d 141, 142 (Fla. 3d DCA 1995)). Furthermore, the right to sue for a breach of contract to enforce assigned rights was recognized early in Florida history. See Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., Inc., 753 So.2d 55, 57 (Fla.2000) (“The right of an assignee to sue for breach of contract to enforce assigned rights predates the Florida Constitution.” (citing Robinson v. Nix, 22 Fla. 321 (1886)).
Id. at 2. Interestingly, the utility of a policyholder’s post-loss assignment of policy rights hinges on the ability to enforce those acquired rights. This importance is highlighted when an insured suffers a sudden loss from a covered peril, such as damage to an insured home from a severe storm, and in turn is able to use an assignment of rights under the policy to assign those rights to a contractor, that will assist the policyholder in repairing the loss.
In closing, Florida policyholders in accord with the decisions in Security First and Accident Cleaners, may still employ the assignment of post-loss rights under their insurance policies as an effective method to resolve and recover from an insured loss. Further, the foregoing decisions should provide comfort to assignees with respect to the validity and enforceability of assigned post-loss policy rights. Lastly, it should be noted that the Court in Security First, unequivocally stated that the Florida Legislature should consider, and if necessary address, the public policy arguments raised by insurers—not the judiciary. . Only time will tell if Florida’s Lawmakers accept the invitation.