January 26th, 2018

Putting the Cart Before the Horse: Why Insureds Should Avoid Litigating Issues of Indemnity Prior to Determining Liability

By Meagan R. Cyrus, Esq.

Frequently in the context of third-party liability coverage disputes, an insured is battling on two fronts: 1) the underlying liability action and 2) the insurance declaratory judgment action. In some scenarios, the insured has little control over either, as the insurer, in anticipation of an insured seeking to judicially enforce its rights under the policy, will race to its preferred forum in order to seek a declaration as to the coverages afforded under the policy prior to significant factual issues being decided in the underlying liability action.

From the perspective of an insured seeking to have defense obligations determined as soon as possible, as the monetary resources expended in the underlying action can become burdensome without insurer participation, this route can be advantageous. However, insureds should be leery of allowing the carrier to proceed on claims regarding indemnity issues, as doing so could force it to take conflicting positions in the underlying liability action and the insurance declaratory judgment action. For example, many insureds in a construction defect matter take the position that property damage did not occur. However, in order to be afforded coverage under a standard commercial general liability policy for such claims, same is required.

It is well established that the duty to indemnity is separate and distinct from the duty to defend. See Northland Cas. Co. v. HBE Corp., 160 F. Supp. 2d 1348, 1360 (M.D. Fla. 2001). Therefore, courts will generally entertain a motion to stay indemnity claims, pending the outcome of the underlying matter. See e.g., Summit Contractors, Inc. v. Amerisure Mut. Ins. Co., No. 8:13-CV-295-T-17TGW, 2014 WL 936734 (M.D. Fla. Mar. 10, 2014); Great Lakes Reinsurance PLC v. Leon, 480 F. Supp. 2d 1306 (S.D. Fla. 2007); Cincinnati Ins. Co. v. Franck’s Lab, Inc., et al., No. 5:12-cv-406-Oc-10PRL (M.D. Fla. Sept. 17, 2013).




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