December 11th, 2017

“Suit” Up? : Florida’s Chapter 558 Notice Does Not Trigger an Insurer’s Duty to Defend: An Update

By: Molly Chafe Brockmeyer, Esq.

This article is an update to a previous article dated September 9, 2015. To see the previous article, click here.

On August 2, 2016, the Eleventh Circuit Court of Appeals in the Altman Contractors, Inc. v. Crum & Forster Spec. Ins. Co., No. 15-12816, slip op. (11th Cir. Aug. 2, 1016), issued its non-dispositive opinion and certification to the Florida Supreme Court.  On appeal, the Eleventh Circuit considered whether Chapter 558’s statutorily prescribed notice and repair process constitutes a “suit” under a commercial general liability (CGL) insurance policy, so as to trigger the insurer’s duty to defend. However, after reviewing the briefs submitted by the parties and amici curiae, and hearing oral argument, the Court believed that it would greatly benefit from the guidance of the Florida Supreme Court on the meaning of the policy language at issue and its relationship to Chapter 558. As such, 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 CGL policies issued by C&F [Crum & Forster Specialty Insurance Company] to ACI [Altman Construction, Inc.]?

 

In reaching its decision to certify, the Court focused on the language in the insurance policies and found reasonable arguments presented by both sides as to whether the Chapter 558 process constitutes a “suit” or “civil proceeding” within the meaning of the CGL policies issued by Crum & Forster. The Court stated that it was confronted with a question intersecting state insurance law and a state statute for which there is no guidance from the Florida courts. The Court noted that the outcome of this case may have significant practical and policy implications for Florida.

 

The Amici Curiae in this action are Construction Association of South Florida, the South Florida Associated General Contractors, and the Leading Builders of America, represented by Christine A. Gudaitis and Ashley B. Jordan of Ver Ploeg & Lumpkin, and Mark A. Boyle, Molly Chafe Brockmeyer and Alex Brockmeyer of Boyle & Leonard, P.A.

 

 

 

 

 

 

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