40 Fla. L. Weekly D1371c
The Underlying Lawsuit
RESPONSIBILITY FOR USE: Lessee [(Cloutier)] agrees to indemnify, defend and hold harmless Lessor [(Hunter Crane)], its employees, operators and agents from any and all claims for damage to property, damage to the work or bodily injury (including death) resulting from the use, operation, or possession of the crane and operator whether or not it be claimed or found that such damage or injury resulted in whole or in part from Lessor’s negligence, from a defective condition of the crane or operator or from any act, omission or default of Lessor.
4. Defendant/Third Party Plaintiff, HUNTER, has been sued by Plaintiff, ROBERT DAMIANO, for damages arising from injuries [he] allegedly suffered while working at a residential construction site in Port St. Lucie, Florida. . .
5. In the Underlying Lawsuit Plaintiff, ROBERT DAMIANO, alleges that HUNTER’s employee negligently operated a crane at the residential construction site and allegedly injured [him.]
6. At the time of the accident, and all times material, HUNTER leased the crane and its operator to Third Party Defendant, CLOUTIER, pursuant to a written contract. . . .
7. Pursuant to the express terms of that contract, CLOUTIER agreed to indemnify and defend HUNTER from claims for damage or bodily injury resulting from the use of its crane. . . .
. . .
9. Third Party Defendant breached its indemnity agreement by failing to provide HUNTER with an indemnity despite due demand therefore.
We [(the Insurer)] will pay those sums that the insured [(Cloutier)] becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no[ ] duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which the insurance does not apply.
That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for “bodily injury” or “property damage” to a third person or organization, provided the “bodily injury” or “property damage” is caused, in whole or in part, by you or by those acting on your behalf. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.
The Coblentz Agreement
Duty to Defend and Coverage
While similar, the first two required showings — the existence of coverage under the policy and the insurer’s duty to defend — are distinct in that the duty to defend is broader than the issue of coverage. See Farrer v. U.S. Fid. & Guar. Co., 809 So. 2d 85, 88 (Fla. 4th DCA 2002). The insurer’s duty to defend arises solely from “ ‘the facts and legal theories alleged in the pleadings and claims against the insured.’ ” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1323 (11th Cir. 2014) (quoting James River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1275 (11th Cir. 2008)). The merits of the underlying suit are irrelevant. See Trailer Bridge, Inc. v. Ill. Nat’l Ins. Co., 657 F.3d 1135, 1142 (11th Cir. 2011). “If the allegations of the complaint leave any doubt as to the duty to defend, the question must be resolved in favor of the insured.” Lime Tree Vill. Cmty. Club Ass’n v. State Farm Gen. Ins. Co., 980 F.2d 1402, 1405 (11th Cir. 1993) (citations omitted).
holds true even where . . . the insured’s liability was arrived at through a settlement of the action against the insured, because a settlement does not, by itself, obligate the insurer to pay for a non-covered claim. Instead, the insurer’s duty to indemnify a settlement obligation must be measured by the facts “inherent in the settlement” or, in other words, the facts extant at the time the settlement was reached.
There was no duty to defend because the Rental
Agreement was not an “insured contract” within
the meaning of the Policy
That part of any contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for “bodily injury” or “property damage” to a third person or organization, provided the “bodily injury” or “property damage” is caused, in whole or in part, by you or by those acting on your behalf. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.
the Estate’s State Court Complaint alleges claims against United Rentals premised solely on theories of strict liability and negligence arising from United Rental’s own acts or omissions. Thus, even if the Rental Agreement were a valid contract or agreement, the coverage sought by United Rentals is not contemplated by the plain terms of the insurance policies, which limit an “insured contract” or written agreement — by which Mid — Continent would extend coverage of the insurance policies — to agreements concerning vicarious liability.
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