.... AND CERTAINLY NOT WHEN THERE ISN'T EVEN ONE IN THE POLICY.
In Philadelphia Indemnity Insurance Co. v. Hamic, 2012 WL 5055558 (M.D. Fla. October 18, 2012), a Federal District Judge held that under Florida Insurance Law, there is a Duty to Defend a claimed Conspiracy to commit Malicious Prosecution.
The Federal Court previously determined that there is a Duty to Defend a Malicious Prosecution Claim in the same underlying case. An Attorney's Professional Liability Policy covering specified Errors and Omissions is at issue in the Federal case. The Defendants in the underlying case, and also the Insureds on the Policy, are an attorney and his Law Firm.
Philadelphia, the E & O Carrier, filed a Motion to Reconsider or to Amend the Summary Judgment of a Duty to Defend, specifically as to alleged civil conspiracy. The Insurance Company argued that conspiracy is an intentional tort and is not covered by the Attorney's Professional Liability Policy at issue.
The Professional Liability Policy at issue has no Exclusion for intentional torts, the Court observed. Philadelphia Indemnity Insurance Co. v. Hamic, 2012 WL 5055558 *1 (M.D. Fla. October 18, 2012).
Moreover, the Professional Liability Policy at issue covers Errors & Omissions some of which are intentional torts, "though not specifically malicious prosecution or conspiracies." Philadelphia Indemnity Insurance Co. v. Hamic, 2012 WL 5055558 *1 (M.D. Fla. October 18, 2012).
Even though conspiracy was claimed in the underlying case, conspiracy does not require an intent to cause the damages complained of, in order to allege it or to prove it. Without an Exclusion of intent to cause the damages complained of, there is no doubt that there is a Duty to Defend such claims under settled Florida Insurance Law. "The tort of civil conspiracy does not require a finding of specific intent to harm the plaintiff or to extract an intended result. Essentially the intent to commit the tort does not also mandate an intent to do the harm that resulted, which was an arrest." Philadelphia Indemnity Insurance Co. v. Hamic, 2012 WL 5055558 *2 (M.D. Fla. October 18, 2012), CITING LIME TREE VILLAGE COMMUNITY CLUB ASS'N v. STATE FARM GENERAL INSURANCE CO., 980 F.2d 1402, 1407 (11th Cir. 1993), in which the Author successfully represented a Florida Homeowner's Association when it and its elderly members were all denied a Defense under their Business Liability Coverage and under their Directors and Officers Liability Coverage, which was upheld on a Summary Judgment by a Federal District Judge, and which was unanimously reversed on appeal by the Eleventh Circuit in the decision relied on by other Federal District Judges to determine a Duty to Defend, including in this October 18, 2012 decision.
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