CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NO. J046137 v. GEORGE PIERSON and WILLIAM MANTESTA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

CERTAIN UNDERWRITERS AT LLOYD’S, LONDON SUBSCRIBING
TO POLICY NO. J046137; CERTAIN UNDERWRITERS AT LLOYD’S,
LONDON SUBSCRIBING TO POLICY NO. J056137; CERTAIN
UNDERWRITERS AT LLOYD’S, LONDON SUBSCRIBING TO POLICY
NO. J076137; CERTAIN UNDERWRITERS AT LLOYD’S, LONDON
SUBSCRIBING TO POLICY NO. J086137, and CERTAIN
UNDERWRITERS AT LLOYD’S, LONDON SUBSCRIBING TO POLICY
NO. J096137,
Appellants,

v.

GEORGE PIERSON and WILLIAM MANTESTA,
Appellees.

No. 4D20-643

[June 2, 2021]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judge; L.T. Case No. CACE 16-12896
(05).

Patrick E. Betar, William S. Berk and Melissa M. Sims of Berk,
Merchant & Sims, PLC, Coral Gables, for appellants.

Stephen A. Marino, Jr., Michal Meiler and S. Alice Weeks of Ver Ploeg
& Marino, P.A., Miami, for appellees.

DAMOORGIAN, J.

The instant appeal arises out of an insurance dispute between Certain
Underwriters at Lloyd’s, London (“the Insurer”) and George Pierson and
William Mantesta (“the Officers”). Prior to the underlying suit, the Officers
were found liable in a suit brought by Anthony Caravella (“Caravella”) for
civil rights violations that took place over twenty years earlier. In the
instant case, the Officers sued the Insurer for failing to indemnify them in
the prior action. The trial court entered summary judgment in the Officers’
favor, concluding that the insurance policies were triggered because
Caravella’s damages extended into the policy periods.
 On appeal, the Insurer argues that it had no duty to indemnify the
Officers for two key reasons: (1) the issued policies were not in effect when
the misconduct occurred; and (2) the policies expressly exclude coverage
for intentional acts. Alternatively, if it did have a duty to indemnify, the
Insurer argues that the court failed to conduct an evidentiary hearing to
determine the correct amount of damages. Finding merit in the Insurer’s
argument that it did not have a duty to indemnify because the misconduct
did not occur during the policy periods, we reverse and remand for entry
of summary judgment in favor of the Insurer. In light of our holding, the
other issues before this Court are moot and will not be addressed.

From 1983 to 1984, Caravella, a 15-year-old boy with a low IQ, was
convicted of murder and sentenced to life in prison. In 2010, DNA evidence
was found proving his innocence, and, following his exoneration, Caravella
brought civil rights claims under 42 U.S.C. § 1983 against the Officers. In
his complaint, Caravella alleged that the Officers physically and verbally
forced his confession years earlier. The jury found that the Officers
intentionally violated Caravella’s Fourth, Fifth, and Fourteenth
Amendment rights and awarded Caravella $7,000,000 in damages.

Thereafter, the Officers filed a complaint for indemnification against the
Insurer. In their complaint, the Officers alleged that their former employer,
the City of Miramar, held an occurrence-based commercial general liability
policy issued by the Insurer from 2004 to 2010 and that under the terms
of the policies the Officers were entitled to indemnification for the
judgment amount entered against them. 1

In support of their claim, the Officers cited to Section II of the 2004,
2005, 2007, and 2008 policies (“Section II”) which provides that the
Insurer agrees to indemnify the assured for:

damage direct or consequential . . . on account of PERSONAL
INJURY . . . suffered or alleged to have been suffered by any
person(s) . . . arising out of any OCCURRENCE from any cause
including . . . liability arising out of LAW ENFORCEMENT
ACTIVITIES happening 2 during the PERIOD OF INSURANCE.

The Officers also cited to Section VIII of the 2009 policy (“Section VIII”)
which similarly provides that the Insurer agrees to indemnify the assured
for:

1 There were five different policies issued during this period.
2 The 2008 policy uses the word “occurring” instead of “happening.”

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 damage, direct or consequential . . . on account of PERSONAL
INJURY . . . suffered or alleged to have been suffered by any
person(s) . . . resulting out of LAW ENFORCEMENT
ACTIVITIES . . . happening during the PERIOD OF
INSURANCE.

The policies defined the above referenced capitalized terms as follows:

LAW ENFORCEMENT ACTIVITIES means the activities of any
ASSURED while acting as a law enforcement official, officer,
auxiliary officer, employee or volunteer of a law enforcement
agency or department of the NAMED ASSURED.

....

PERIOD OF INSURANCE means the length of time that the
policy is in force as stated in the Declaration Page as the
Effective Date and Expiration Date.

PERSONAL INJURY means any Injury. . . arising out of . . .
Malicious Prosecution . . . False Arrest; False Imprisonment;
and Detention. In addition, as respects LAW ENFORCEMENT
ACTIVITIES only, PERSONAL INJURY also includes any injury
. . . arising out of . . . Violation of Civil Rights.

....

OCCURRENCE means an accident or a happening or event or
a continuous or repeated exposure to conditions which results
in . . . PERSONAL INJURY during the PERIOD OF
INSURANCE.

The Insurer moved for final summary judgment and argued that, based
on the plain language of the policies, it had no duty to indemnify the
Officers because the misconduct did not occur during the policy periods.
To further buttress its argument, the Insurer relied on North River
Insurance Co. v. Broward County Sheriff’s Office, 428 F. Supp. 2d 1284,
1288 (S.D. Fla. 2006) (North River), wherein the court, applying the
manifestation theory, arrived at a similar conclusion. In their response
and cross motion for partial summary judgment, the Officers argued that
Caravella’s ongoing incarceration and resulting continuous injuries
triggered coverage under the policies. In so arguing, the Officers relied on
the “injury-in-fact” and “continuous” trigger theories.

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 The matter ultimately proceeded to a hearing on the issue of whether
the Insurer had a duty to indemnify under the policies. The court
concluded that the Insurer had a duty to indemnify, reasoning that the
policies covered repeated events resulting in injury which triggered
coverage during the policy periods. In particular, the trial court explained
that even though repeated events could only be considered one
occurrence, “[n]othing in this provision limits the ‘OCCURRENCE’ to the
earliest possible point in time, and continuous injuries can span several
policy periods and trigger one occurrence per policy in effect when the
injury is being suffered.” Alternatively, the court explained that even if
Section II were not triggered, “coverage would still be triggered under
[Section VIII]” because Caravella was exonerated while the 2009 policy was
in effect. The court thereafter entered final judgment in favor of the
Officers, but limited execution of the judgment to $5,000,000, the
maximum amount allowed under the policies. This appeal follows.

“Insurance contracts are construed in accordance with the plain
language of the policies as bargained for by the parties, and ambiguities
are interpreted liberally in favor of the insured and strictly against the
insurer who prepared the policy.” McCreary v. Fla. Residential Prop. & Cas.
Joint Underwriting Ass’n, 758 So. 2d 692, 694–95 (Fla. 4th DCA 1999)
(quoting Westmoreland v. Lumbermens Mut. Cas. Co., 704 So. 2d 176, 179
(Fla. 4th DCA 1997)). Moreover, “coverage clauses are construed in the
broadest possible manner to affect the greatest extent of coverage.” Farrer
v. U.S. Fid. & Guar. Co., 809 So. 2d 85, 88 (Fla. 4th DCA 2002) (quoting
McCreary, 758 So. 2d at 695).

With these parameters in mind, we address whether the Insurer had a
duty to indemnify the Officers under the plain language of the policies.
The policies provide coverage for “damage . . . arising out of any
OCCURRENCE from any cause including . . . liability arising out of LAW
ENFORCEMENT ACTIVITIES happening during THE PERIOD OF
INSURANCE” or “damage . . . alleged to have been suffered by any person(s)
. . . resulting out of LAW ENFORCEMENT ACTIVITIES . . . happening
during the PERIOD OF INSURANCE.” As the italicized language makes
clear, the “occurrence” giving rise to liability must happen during the
period of insurance. See New Amsterdam Cas. Co. v. Addison, 169 So. 2d
877, 886 (Fla. 2d DCA 1964) (“[G]enerally, the accident or injury must
occur during the time period of coverage; or stated otherwise, no liability
exists if the accident or injury occurs outside the time period of coverage
of a liability policy.”). Since it is undisputed that the Officers’ misconduct
occurred twenty years prior to the execution of the policies, there can be
no duty to indemnify in this case. See, e.g., Pa. Lumbermens Mut. Ins. Co.
v. Ind. Lumbermens Mut. Ins. Co., 43 So. 3d 182, 188–89 (Fla. 4th DCA

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2010) (insurer had no duty to indemnify where the evidence established
that damage occurred after the expiration of the policy and the policy
provided coverage for damage which “occurs during the policy period”); Bill
Binko Chrysler-Plymouth, Inc. v. Compass Ins. Co., 385 So. 2d 692, 694
(Fla. 4th DCA 1980) (insurer not liable to insured where the policy stated
that it covered bodily injury “which occurs during the policy period” and
the bodily injury occurred after the expiration of the policy). As such, the
fact that Caravella suffered the consequences of the Officers’ wrongful
conduct throughout his incarceration, including while the subject policies
were in effect, is irrelevant for purposes of determining whether the Insurer
has a duty to indemnify. Likewise, the fact that Caravella was exonerated
while the 2009 policy was in effect is of no consequence. See North River,
428 F. Supp. 2d at 1290 (holding in the context of an occurrence-based
policy that using the date of exoneration to determine coverage “would be
imposing on [the insurance company] a risk based on the fortuitous
occasion of the date of exoneration as opposed to the date when the
damage first manifests itself, i.e., the date of incarceration”).

Our holding is consistent with the general purpose of an occurrence-
based policy. See Fremont Indem. Co. v. Gierhart, 560 So. 2d 1223, 1225
(Fla. 3d DCA 1990) (“[A]n occurrence policy offers coverage where ‘the
negligent act or omission occurs within the policy period, regardless of the
date of discovery or the date the claim is made or asserted.’” (quoting Gulf
Ins. Co. v. Dolan, Fertig & Curtis, 433 So. 2d 512, 514 (Fla. 1983))); North
River, 428 F. Supp. 2d at 1290 (generally stating in the context of an
occurrence-based policy that “it is inconceivable that the calculation of the
premium that [the county] paid [the insurance company] in order to
purchase the Policy included an analysis of any earlier prosecutions in
[the county] and the likelihood of malfeasance over the course of those
prosecutions”).

In light of our holding that there is no duty to indemnify based on the
plain language of the policies, we need not reach the parties’ alternative
arguments regarding which trigger theory applies. See Pa. Lumbermens
Mut. Ins. Co., 43 So. 3d at 189 (declining to determine which trigger theory
applied because summary judgment could be decided based on the plain
language of the policy). Cf. Spartan Petroleum Co. v. Federated Mut. Ins.
Co., 162 F.3d 805, 808 (4th Cir. 1998) (explaining how the trigger theories
are generally used in the context of deciding when damage occurred
“in cases involving progressive damages, such as latent defects, toxic
spills, and asbestosis” because the time between the “injury-causing event
(such as defective construction, a fuel leak, or exposure to asbestos), the
injury itself, and the injury’s discovery or manifestation can be so far
apart”).

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 For the foregoing reasons, we reverse the final summary judgment
entered in favor of the Officers and remand with instructions that the court
enter summary judgment for the Insurer.

Reversed and remanded.

WARNER and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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