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A Physical Abuse Exclusion Sufficient to Bar Coverage for Shooting * Improper to Compel Post-Accident Photos Based Solely on Relevance * Successful Offeror of a Proposal for Settlement Entitled to Attorney Fees Absent Finding of a Bad Faith Offer * Right to Equitable Subrogation Arises When Judgment Entered Against Tortfeasor or When Payment Has Been Made

October 15, 2015

Dear Ladies and Gentlemen:

This month we would like to share with you some recent opinions from the Florida District Courts of Appeal that may be of interest to you.

In Miglino v. Universal Property & Cas. Ins. Co., the Fourth District Court of Appeals found that a physical abuse exclusion barred coverage for an intentional shooting. This was an issue of first impression in Florida regarding the policy exclusion.

In Seaboard Marine Ltd. v. Clark, the Third District Court of Appeals found that it was improper for a court to compel disclosure if post-accident photos and surveillance where the party seeking the disclosure failed to exercise due diligence in obtaining substantially equivalent material.

In Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., the Third District Court found that even if a successful offeror of a Proposal for Settlement may claim its attorney fees from another co-defendant that is not a basis for denying a request for fees absent a finding of a bad faith offer.

In Allstate Ins. Co. v. Theodotou, the Fifth District Court of Appeals held that a right to equitable subrogation arises when judgment has been entered against a tortfeasor or when payment has been made but does not require both condition.

Miglino v. Universal Property & Cas. Ins. Co., 2015 WL 493056 (Fla. 4th DCA April 19, 2015)


The insured, Harvey Stein, lent a gun to his sister, Cheryl Hepner (“the sister”), and the sister then used the gun to shoot her son-in-law, Salvatore Miglino (“Miglino”), outside of her home. Miglino and the sister’s daughter were in the midst of divorce proceedings at the time. Miglino brought a personal injury action against the insured and the sister, alleging that the sister intentionally shot him and asserting a negligent entrustment claim against the insured. Universal Property & Casualty Insurance Company (“Universal”) initially defended the insured in Miglino’s action under a reservation of rights, but then filed an action for a judgment declaring that it had no duty of defense or indemnity with regard to the personal injury action under “exclusion k” of the insured’s homeowner’s insurance policy. Exclusion “k” of the policy excluded payments to others for damages “[a]rising out of … physical or mental abuse.” The policy did not define physical abuse. Universal moved for summary judgment, arguing that, pursuant to exclusion k., there was no coverage under the policy for the intentional shooting of Miglino. The trial court agreed and granted the motion.


On appeal, Miglino argued that the shooting did not fit within a dictionary or case law definitions of physical abuse. The panel relied on Black’s Law Dictionary to determine whether the physical abuse exclusion applied. The court found that the intentional act of shooting someone clearly constituted a physical injury. While Miglino contested the definition citing cases regarding multiple stabbing and ­­­­fraternity hazing to argue that the element for torture or degradation must be present to constitute physical abuse, the panel did not find that those elements were necessary for the acts in question to rise to the level of physical abuse. The panel affirmed the trial court’s ruling that Universal had no duty to defend or indemnify its insured.

Seaboard Marine Ltd. v. Clark, 2015 WL 5438614 (Fla. 3rd DCA Sept. 16, 2015)


Farconelly Clark (“Clark”), an employee of a stevedoring company, was injured while working at Seaboard’s terminal at the Port of Miami (which leased the terminal from the county). During the loading process of cargo containers onto ships, a top loader operated by another employee of the stevedoring company, ran over Clark and crushed his legs, which were later amputated. Clark sued Seaboard and the County alleging that noise and congestion in the terminal combined with alleged inadequate lighting and disorganized storage of containers created a dangerous work environment.

 Immediately following the accident, Seaboard and its attorneys took ninety-one photographs of the area in which the accident occurred and preserved approximately ninety minutes of surveillance footage of the terminal from the night of the accident. Seaboard declined to provide Clark with the photographs and surveillance tape, asserting privilege. Clark filed a motion to compel the production of the photographs. Seaboard provided the trial court with the photographs for an in camera inspection. The trial court entered an order granting Clark’s motion, finding that the photographs were relevant to the issues in the lawsuit and that Clark had no other means of obtaining the photographs. At the time the motion was heard, no witnesses had been deposed. Clark presented no evidence indicating that he had attempted to obtain any post-accident photographs taken by either the County or Clark’s employer.


The panel explained that rule 1.280(b)(4) of the Florida Rules of Civil Procedure set forth requirements that must be met by a party seeking the disclosure of materials protected by Florida’s work product doctrine and that the party requesting such privileged materials had a considerable burden to show a significant need and an undue hardship in obtaining the substantial equivalent. The panel explained that the record was devoid of any efforts by Clark to obtain substantially equivalent materials. No depositions of witnesses were taken; no attempts to obtain other, and non-privileged photographs were undertaken. Because of Clark’s failure to exhaust other means to obtain equivalent discovery material the panel quashed the trial court’s order.

Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 2015 WL 5132383 (Fla. 3rd DCA Sept. 2, 2015)


Certified Lower Keys Plumbing, Inc., (“Certified”) was the subcontractor on a condominium project owned by Seaside. Certified sued five defendants: (1) Seaside; (2) Current Builders of Fla., Inc., the general contractor; (3) Travelers Casualty and Surety Company of America, Inc., the surety; (4) CB Development; and (5) Michael Taylor, the president of Current Builders of Fla., Inc. One law firm represented all the defendants. During the course of the litigation, each of the five defendants served an offer of judgment on Certified, none of which were accepted. Following trial, the trial court entered judgment against the general contractor. A judgment of no liability, however, was entered against Seaside. Seaside subsequently moved for attorney’s fees and costs under the offer of judgment statute and rule. The trial court denied the motion, basing its ruling in part on the testimony of Seaside’s attorney, Vincent Vaccarella, that the attorney’s fees “were billed to and paid by or on behalf of Current Builders of Fla., Inc.,” (“Current Builders”) pursuant to an indemnification agreement between Seaside and Current Builders. The trial court also based its denial of fees on “the fact that Attorney Vaccarella, while advocating for Defendants Current Builders of Fla., Inc., CB Development, Inc., and Travelers Casualty and Surety Company of America, Inc., made arguments adverse to Seaside, LLC.” The trial court made no findings that Seaside made the offer of judgment in bad faith.


      Seaside appealed the denial of its attorney fees under Fla. Stat § 768.79 after the judgment entered into against the subcontractor was less than 25% than the owner’s Proposal for Settlement therefore satisfying the statutory requirement and triggering the contractor’s right to fees and costs. The panel found that trial court erred in denying the fees absent finding that the offer was made in bad faith. It was improper to deny the fees based on the fact that another party, the contractor, had paid the owner’s fees during litigation. No finding of bad faith could be made because the owner transferred the subcontractor lien to the surety bond thereby precluding liability against the owner. The ruling was reversed and remanded.

Allstate Ins. Co. v. Theodotou, 171 So. 3d 163 (Fla. 5th DCA July 24, 2015).


A young man was struck by a motor-vehicle while operating a scooter causing him serious injuries. Following the collision, the boy was treated at a local hospital. The extent of the boy’s injuries were made worse as a result of negligence on part of the medical professionals. The boy’s guardian obtained a verdict of $11 million. The owner of the vehicle paid its entire policy limits of $1.1 million. The guardian filed a lawsuit against the medical professionals. The trial court allowed the vehicle owner and insurer to intervene in the litigation. The vehicle owner asserted a cause of action for equitable subrogation. The trial court dismissed the subrogation action on the basis that the judgment secured had not been satisfied at the time the vehicle owner filed the subrogation action.


The panel framed the issue as follows: whether an initial tortfeasor or her insurance could assert an equitable subrogation claim against a subsequent tortfeasor when: (1) the initial tortfeasor was precluded from bringing the subsequent tortfeasor into the original personal injury action; (2) judgment was entered against the initial tortfeasor for the full amount of the injured person’s damages, regardless of the initial tortfeasor’s portion of the fault; and (3) that judgment has not been completely paid by the initial tortfeasor or her insurer. Medical Providers argued that Appellants were barred from seeking equitable subrogation because they had not paid the entirety of the boy’s damages. The panel held that no case law required the tortfeasor to pay the entire debt prior to seeking equitable subrogation from a subsequent tortfesor. The panel found that if Boozer was not solely liable, then, in fairness, she ought to be able to seek subrogation from the subsequent tortfeasors. The insurer should also have the opportunity to seek equitable subrogation because it has potentially paid more than its fair share. Put simply, the Court stated that the right to equitable subrogation arises when payment has been made or judgment has been entered, so long as the judgment represents the victim’s entire damages.

Thank you for the opportunity to share this update with you.


Rebecca A. Brownell

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