Florida’s Second DCA finds that genuine issues of material fact exist with respect to insurer’s duty to defend and indemnify, despite insurer’s claim that the allegations of underlying suit fell under “professional services” exclusion.

The plaintiff filed an action against the defendant pharmacy asserting that it negligently caused her injuries. The pharmacy’s insurance company filed a declaratory action against the pharmacy asserting that it did not have a duty to defend or indemnify. The insurer filed a motion for summary judgment asserting it did not have a duty to defend or indemnify as the policy excluded coverage for “professional services.” The trial court denied the insurance company’s motion for summary judgment regarding its duty to defend because the lawsuit contained allegations that could be unrelated to the professional services and could potentially bring the action within coverage under the policy. Additionally, the court granted the insurer’s summary judgment regarding its duty to indemnify.

On appeal, the Second District Court of Appeal found that the complaint alleged facts that could potentially bring the suit within coverage of the policy and affirmed the trial court’s ruling that the insurance company had a duty to defend the pharmacy. The court reversed the granting of summary judgment on the indemnity issue because the duty to indemnify is determined by analyzing the policy language in conjunction with the facts of the case, and given the little discovery conducted prior to the summary judgment hearing, a genuine issue of material fact remained as to whether the acts of the pharmacy’s employees were ordinary or professionally negligent.

When determining whether to move for summary judgment on the issues of the duties to defend and indemnify, an insurer needs to evaluate whether the allegations of the complaint could potentially fall within coverage, and an insurer should evaluate whether the discovery conducted would allow the court to determine whether a genuine issue of fact exists.

_{Case Law Alerts, 4^th Quarter, October 2018}

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