[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 16, 2006
No. 05-13240
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 99-01546-CV-T-30-TGW
HARTFORD ACCIDENT AND INDEMNITY COMPANY,
HARTFORD CASUALTY INSURANCE CO.,
TWIN CITY FIRE INSURANCE CO.,
Plaintiffs-Counter-
Defendants-Appellees,
versus
DONALD C. BEAVER,
Defendant-Cross-
Defendant-Counter-
Claimant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 16, 2006)
Before MARCUS, WILSON and COX, Circuit Judges.
MARCUS, Circuit Judge:
This appeal asks whether Florida law requires insurers, Hartford Accident
and Indemnity Company, Hartford Casualty Insurance Company, and Twin City
Fire Insurance Company (collectively, "Hartford"), to defend their insured, Donald
C. Beaver, against a class action suit in which the class has not yet been certified
by the state court and the only potentially covered claims are by putative class
members. The district court granted summary judgment to Hartford, ruling that
the duty to defend under Florida law would not arise pursuant to a general liability
policy unless and until a class has been certified. After thorough review of Florida
law, we disagree and accordingly reverse and remand for further proceedings
consistent with this opinion.
I.
The relevant facts are these: the appellant, Donald Beaver, was the sole
shareholder, owner, director and officer of Brian Center Corporation and Brian
Center Management Corporation during the relevant period.1 The appellees,
Hartford, issued a general liability policy to the Defendants with effective
coverage dates from November 27, 1987 to November 27, 1992. The terms of the
Hartford policy insure the Defendants against damages from bodily injury that
1
Living Centers of America, Inc. and LCA Operational Holding Company subsequently
acquired the Brian Center entities. This opinion will refer to Beaver, the Brian Center
corporations, and the LCA corporations collectively as the "Defendants."
2
occur during the policy period. The policy also provides that Hartford has both the
right and the duty to defend any suit seeking covered damages.2
In 1998, two plaintiffs, Hazel Garrison and the Estate of Cary B. Ayres,
filed a putative class action suit (the "Underlying Action") in the Circuit Court of
the Thirteenth Judicial Circuit in Hillsborough County, Florida, against the
Defendants. The Defendants operated numerous nursing home facilities across the
South. The complaint alleged that Ayres resided at one of the nursing homes in
2
The relevant policy provisions provide:
We will pay those sums that the insured 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 any "suit" seeking those damages. We may at
our discretion investigate any "occurrence" and settle any claim or "suit" that may
result.
Section I.A.1.a.
This insurance applies to "bodily injury" and "property damage" only if:
(1) The "bodily injury" or "property damage" is caused by an
"occurrence" that takes place in the "coverage territory," and
(2) The "bodily injury" or "property damage" occurs during the policy
period.
Section I.A.1.b.
"'Bodily injury' means bodily injury, sickness or disease sustained by a person,
including death, resulting from any of these at any time." Section V.3. "'Occurrence' means
an accident, including continuous or repeated exposure to substantially the same general
harmful conditions." Section V.9. The policy also excludes from coverage "'Bodily injury'
or 'property damage' expected or intended from the standpoint of the insured." Section
I.A.2.a.
3
Tampa, Florida from June 12, 1986, until his death on December 2, 1995, and that
Garrison resided in the same nursing home from October 16, 1993, to November
15, 1997. The operative complaint in the Underlying Action (the "Underlying
Complaint") broadly charged that: (1) Beaver and Brian Center Defendants
breached fiduciary duties owed to the nursing home residents by failing to provide
necessary care, services, and supplies required for their health and well-being; (2)
LCA Defendants, after merging with Brian Center Defendants in March 1995, also
breached their fiduciary duties to the residents; and (3) Beaver as officer and
director of the nursing home corporations, assumed duties to provide residents
with adequate care and services, and negligently breached those duties in causing
Garrison bodily injury.
Hartford accordingly assumed the defense of the Underlying Action but
reserved its right to contest coverage. Hartford then commenced this action on
July 2, 1999, in the United States District Court for the Middle District of Florida,
seeking a declaratory judgment that there was no coverage or duty to defend the
Underlying Action. After some delays caused by bankruptcy proceedings, on
January 20, 2004, Hartford moved for summary judgment. Then, on August 3,
2004, Hartford informed the district court that Ayres had settled and was
withdrawing as a plaintiff in the Underlying Action. The case proceeded with
4
Garrison as the sole named plaintiff.
The district court granted Hartford's motion for summary judgment, ruling
that the Underlying Complaint did not trigger a duty to defend because the facts in
the complaint, "on their face, fail to bring Ms. Garrison's claims within coverage
of [Hartford's] policy." Hartford later moved for clarification, asking whether the
district court meant that Hartford did not have a duty to defend the Underlying
Action based on claims by putative class members rather than by Ms. Garrison.
On June 2, 2005, the district court granted Hartford's motion for clarification,
concluding that Hartford did not have a duty to defend the Underlying Action.
The district court noted the absence of controlling Florida precedent, but held
that Hartford does not have a duty to defend against the class action
allegations contained in the state court complaint until such time as
that class is certified pursuant to Florida Rule of Civil Procedure
1.220.
The plain language of Rule 1.220 strongly suggests that a class must
be certified before a claim may be maintained on its behalf. Without
class certification, there is no class action claim to defend against.
The Court is also persuaded by the reasoning of the federal cases
holding that the claims of potential class members cannot be
aggregated to satisfy the amount in controversy requirement. For
example, the Ninth Circuit in Gibson v. Chrysler Corp., 261 F.3d 927,
940 (9th Cir. 2001), noted that "a class action, when filed, includes
only the claims of the named plaintiff or plaintiffs. The claims of
unnamed class members are added to the action later, when the action
is certified as a class under Rule 23."
5
Beaver, alone among the Defendants, filed this appeal from the district court's
ruling.
II.
We are Erie-bound by Florida law in deciding this diversity case. See Erie
R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The case presents an open question of
Florida law, but despite the absence of state law deciding the exact issue before us,
Florida law yields the conclusion that a duty to defend exists here.
Our starting point is the Florida Supreme Court's decision in Jones v.
Florida Ins. Guar. Ass'n, 908 So.2d 435 (Fla. 2005), which succinctly outlined the
general parameters of an insurer's duty to defend:
It is well settled that an insurer's duty to defend its insured against a
legal action arises when the complaint alleges facts that fairly and
potentially bring the suit within policy coverage. The duty to defend
must be determined from the allegations in the complaint.
The duty to defend is of greater breadth than the insurer's duty to
indemnify, and the insurer must defend even if the allegations in the
complaint are factually incorrect or meritless. Indeed, when the actual
facts are inconsistent with the allegations in the complaint, the
allegations in the complaint control in determining the insurer's duty
to defend. Any doubts regarding the duty to defend must be resolved
in favor of the insured.
Id. at 442-43 (internal citations and quotation marks omitted).
These basic principles have been long-established in Florida. See, e.g.,
6
State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1077 n.3
(Fla.1998) (acknowledging that "the duty to defend is controlled by the allegations
in the complaint against the insured"); Nat'l Union Fire Ins. Co. v. Lenox Liquors,
Inc., 358 So.2d 533, 535 (Fla.1977) (same); Biltmore Constr. Co. v. Owners Ins.
Co., 842 So.2d 947, 949 (Fla. 2d DCA 2003) (same); Sunshine Birds & Supplies,
Inc. v. United States Fid. & Guar. Co., 696 So.2d 907, 910 (Fla. 3d DCA 1997)
("The allegations of the complaint govern the duty to defend even if they may be
factually incorrect or without merit, or where . . . there has been a suggestion made
that the purported negligent allegations are really allegations of intentional acts in
disguise. . . . [W]here a complaint alleges facts that are partially within and
partially outside the coverage of an insured's policy, the insurer is not only
obligated to defend, but must defend that entire suit." (citations omitted)); Irvine v.
Prudential Prop. & Cas. Ins. Co., 630 So.2d 579, 579-80 (Fla. 3d DCA 1993)
("The duty is determined solely by the allegations against the insured, not by the
actual facts, nor the insured's version of the facts."); Grissom v. Commercial
Union Ins. Co., 610 So.2d 1299, 1307 (Fla. 1st DCA 1992) ("All doubts as to
whether a duty to defend exists in a particular case must be resolved against the
insurer and in favor of the insured. So long as the complaint alleges facts that
create potential coverage under the policy, the insurer must defend the suit.");
7
Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So.2d 810, 813 (Fla. 1st DCA
1985) ("[T]he duty to defend continues even though it is ultimately determined
that the alleged cause of action is groundless and no liability is found within the
policy provisions defining coverage. If the allegations of the complaint leave any
doubt regarding the duty to defend, the question must be resolved in favor of the
insured requiring the insurer to defend.").
Thus, the central inquiry in a duty to defend case is whether the complaint
"alleges facts that fairly and potentially bring the suit within policy coverage."
Jones, 908 So.2d at 443. Since the parties agree that Hartford faces potential
liability only if a class is certified, we are obliged to ask whether the Underlying
Complaint alleges facts that fairly and potentially support class certification.
Florida Rule of Civil Procedure 1.220 sets forth state law enumerating the
prerequisites for class certification:
Before any claim or defense may be maintained on behalf of a class
by one party or more suing or being sued as the representative of all
the members of a class, the court shall first conclude that (1) the
members of the class are so numerous that separate joinder of each
member is impracticable, (2) the claim or defense of the
representative party raises questions of law or fact common to the
questions of law or fact raised by the claim or defense of each
member of the class, (3) the claim or defense of the representative
party is typical of the claim or defense of each member of the class,
and (4) the representative party can fairly and adequately protect and
represent the interests of each member of the class.
8
Fla. R. Civ. P. 1.220(a). See also Chase Manhattan Mortg. Corp. v. Porcher, 898
So.2d 153, 156 (Fla. 4th DCA 2005) ("The movant for class certification bears the
burden of establishing all the requirements of Florida Rule of Civil Procedure
1.220.").
Fully eight pages of the Underlying Complaint detail the factual allegations
supporting class certification. The substance of those allegations are: (1) the class
is too numerous for separate joinder, as the class will likely include upward of
6,000 individuals who are geographically dispersed throughout Florida, North
Carolina, South Carolina, Virginia, and Georgia; (2) questions of law and fact that
are common to the class predominate over individual questions: the terms of the
contracts between nursing home residents and the nursing homes; the care,
services, and supplies to which putative class members were entitled; the decrease
in the quality of care putative class members actually received; the value of the
care, services and supplies to which putative class members were entitled; the
putative class members' need for a safe and sanitary environment, personal
attendance and custodial care, and access to appropriate health care; the pattern of
understaffing the nursing homes; facts supporting defendants' denials and
affirmative defenses; the law of negligence and fiduciary duty; and the proper
9
measure of damages; (3) the named plaintiff's claims are typical of class members'
claims; thus, for example, the named plaintiff and all putative class members: were
residents of the nursing homes, entered similar contracts with the nursing homes,
paid Defendants in exchange for certain care, services and supplies, were owed the
same duty of care by Defendants, and received the same inadequate treatment; and
(4) the named plaintiff is committed to prosecuting this action and will adequately
represent and protect the interests of the class, as evidenced by her retention of
attorneys who are experienced in complex litigation, especially nursing home
litigation.
The factual averments bearing on class certification are detailed and
extensive. Thus, we are satisfied that the Underlying Complaint "alleges facts that
fairly and potentially bring the suit within policy coverage," Jones, 908 So.2d at
443. Nothing in Florida law even remotely suggests that the potential for
coverage created by a class action is qualitatively different from the potential for
coverage created by an individual action. Florida's courts have uniformly said that
a suit alleging facts that fairly and potentially bring the suit within policy coverage
triggers an insurer's duty to defend. That standard is readily met in this case.
Hartford, nevertheless, offers two reasons why its duty to defend should
remain inchoate unless and until a state court has certified the class: first, absent
10
class members simply are not a part of the lawsuit until a class is certified, and
therefore no duty can arise to defend against claims by non-parties; and second,
claims by putative class members are too remote and speculative to trigger the
duty to defend. We are unpersuaded.
As a doctrinal matter, Hartford's argument lacks meaningful support in
Florida law. Hartford cites several authorities -- Fla. R. Civ. P. 1.220(a) ("Before
any claim or defense may be maintained on behalf of a class . . . the court shall
first conclude" that class certification is appropriate); Gibson v. Chrysler Corp.,
261 F.3d 927 (9th Cir. 2001) (holding that the value of unnamed class members'
claims cannot satisfy the amount-in-controversy requirement of 28 U.S.C. § 1367);
Lutz v. Protective Life Ins. Co., 328 F. Supp. 2d 1350, 1358 (S.D. Fla. 2004)
(holding that "the claims of unnamed class members cannot be used in computing
the amount in controversy") -- for the unremarkable proposition that absent class
members are not part of a lawsuit until certification. But these authorities are not
remotely persuasive here because they concern procedural and jurisdictional
matters completely unrelated to Florida's duty-to-defend law and conflict with a
Florida Supreme Court case, Johnson v. Plantation General Hosp., Ltd., 641 So.2d
58, 60 (Fla. 1994), holding that putative class members' claims can be aggregated
to meet jurisdictional requirements. Indeed, Hartford cites no authority
11
suggesting that the general rule enunciated in Jones -- that the duty to defend
arises when the complaint alleges facts that fairly and potentially bring the suit
within policy coverage -- is somehow inapplicable here. The only case we or the
parties have located that is directly on point rejected the very argument Hartford
asserts here, holding instead that allegations of personal injury against putative
class members actually triggered an insurer's duty to defend, notwithstanding that
the class had not yet been certified. See LensCrafters, Inc. v. Liberty Mut. Fire Ins.
Co., 2005 WL 146896 (N.D. Cal. 2005).
Nor does Hartford successfully distinguish LensCrafters by noting that it
was decided under California law, which imposes the duty to defend in cases
where the complaint might be amended to include a potentially covered claim.
The LensCrafters court did not rely on the possibility of amendment to conclude
that claims by putative class members could trigger the duty to defend; it relied on
the fact that the complaint alleged putative class members suffered bodily injury,
which was potentially within policy coverage. Id. at *12 n.15.
Second, Hartford would have us ignore this basic truth about class action
litigation: the fight over class certification is often the whole ball game. Indeed,
the centrality of certification to the outcome of litigation prompted enactment of
Federal Rule of Civil Procedure 23(f), which allows for interlocutory appeal of
12
class certification orders. See Fed. R. Civ. P. 23(f) advisory committee's notes
accompanying 1998 amendments (observing that "[a]n order denying certification
may confront the plaintiff with a situation in which the only sure path to appellate
review is by proceeding to final judgment on the merits of an individual claim that,
standing alone, is far smaller than the costs of litigation" while "[a]n order
granting certification . . . may force a defendant to settle rather than incur the costs
of defending a class action and run the risk of potentially ruinous liability"). The
federal courts, too, have frequently acknowledged the high stakes involved in
class certification decisions. See, e.g., Coopers & Lybrand v. Livesay, 437 U.S.
463, 476 (1978) ("Certification of a large class may so increase the defendant's
potential damages liability and litigation costs that he may find it economically
prudent to settle and to abandon a meritorious defense."); Prado-Steiman ex rel.
Prado v. Bush, 221 F.3d 1266, 1274 (11th Cir. 2000) (“[E]ven ordinary class
certification decisions by their very nature may radically reshape a lawsuit and
significantly alter the risk-benefit calculation of the parties . . . .”); see also In re
Diet Drugs Prod. Liab. Litig., 93 F.App'x 345, 350 (3d Cir. 2004) (“Orders
granting class certification may expose defendants to enormous liability while
orders denying certification may effectively eviscerate the plaintiffs' ability to
recover."); In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 145 (2d
13
Cir. 2001) ("The effect of certification on parties' leverage in settlement
negotiations is a fact of life for class action litigants."). The overwhelming
importance of class certification to the ultimate resolution of the case militates
strongly against leaving the insured without a defense until after a decision on
class certification.
Moreover, Hartford has failed to acknowledge that the broad language
found in the policy unambiguously says that the right and duty to defend are
triggered by the same event -- commencement of a suit alleging covered damages -
- so if there were no duty to defend, there also would be no right to defend.3
Thus, the rule Hartford advocates would not only deny an insured the defense it
contracted for, but also would lock insurers out of the litigation until after the
critically important issue of class certification had been decided. Although the
insurer's right to defend is not at issue in this case -- Beaver clearly wants Hartford
to assume the defense -- in other cases where the insurer faces probable class
certification and potentially enormous liability, it would lack the right to defend
the suit and protect its interests until after a critically important issue has already
3
Again, section I.A.1.a. of the Hartford policy provides: "We will pay . . . damages . . . to
which this insurance applies. We will have the right and duty to defend any 'suit' seeking those
damages. We may at our discretion investigate any 'occurrence' and settle any claim or 'suit' that
may result." (emphasis added).
14
been litigated. Such a rule would poorly serve insurers and insureds alike. We
can find nothing in Florida law nor in the policy language yielding that
conclusion.
Finally, Hartford says that basing a duty to defend on the claims of putative
class members would somehow be "impractical and uncertain" since the class may
never be certified. Again, Hartford fails to cite any supporting authority and
ignores clear Florida case law holding that a duty to defend arises despite
uncertainty as to the merits or factual accuracy of a claim. Jones, 908 So.2d at
443; Sunshine Birds & Supplies, Inc. v. United States Fid. & Guar. Co., 696 So.2d
907, 910 (Fla. 3d DCA 1997) ("The allegations of the complaint govern the duty
to defend even if they may be factually incorrect or without merit, or where . . .
there has been a suggestion made that the purported negligent allegations are
really allegations of intentional acts in disguise."). If the duty to defend arises in
spite of the uncertainty and impracticality of defending wholly meritless individual
claims, we think it equally clear that the duty to defend is not defeated by some
uncertainty as to the merits of a class certification. The Florida courts have
repeatedly explained that the duty to defend arises when a complaint fairly and
potentially asserts a covered claim. See, e.g., Jones, 908 So.2d at 443; Grissom v.
Commercial Union Ins. Co., 610 So.2d 1299, 1307 (Fla. 1st DCA 1992) ("So long
15
as the complaint alleges facts that create potential coverage under the policy, the
insurer must defend the suit."); Baron Oil Co. v. Nationwide Mut. Fire Ins. Co.,
470 So.2d 810, 813 (Fla. 1st DCA 1985) (" If the allegations of the complaint
leave any doubt regarding the duty to defend, the question must be resolved in
favor of the insured requiring the insurer to defend." (emphasis added)). The
likelihood that a plaintiff will prevail in its covered claims or that a class will be
certified does not enter into the calculus. See id. In this case the factual
averments supporting class certification are serious and substantial.
Several conclusions emerge from this: (1) a straightforward application of
the Jones rule yields the result that the class members' claims potentially bring the
Underlying Action within policy coverage; (2) in spite of the policy's
unambiguous language, the district court's ruling would leave insureds without
representation during the most critical period of a class action lawsuit alleging
potentially covered claims; (3) the district court's interpretation of the policy
would also deprive insurers of the right to defend against class certification in
suits for which their potential liability is enormous; and (4) no authority found in
Florida law or, for that matter, anywhere else, has concluded that claims by
putative class members are somehow insufficient to trigger an insurer's duty to
defend. Hartford has failed to rebut any of this. In short, we hold that under
16
Florida law and the terms of this policy, Hartford has a duty to defend -- the
Underlying Complaint has alleged sufficient facts that fairly and potentially bring
the suit within the ambit of the policy's coverage.
III.
Alternatively, Hartford suggests that we should affirm the district court's
entry of final summary judgment because the Underlying Complaint alleges only
intentional conduct, which the policy's terms exclude from coverage. The
Hartford policy provides coverage for bodily injury caused by "an accident" and
excludes coverage for bodily injury that is "expected or intended from the
standpoint of the insured."4 The bodily injury alleged in the Underlying
Complaint, according to Hartford, is no accident because the negligence count
remains a claim grounded on the Appellant's alleged intentional scheme to defraud
creditors and nursing home residents and to maximize profits. We remain
unpersuaded.
The Florida Supreme Court has held that where, as here, "the term 'accident'
in a liability policy is not defined, the term, being susceptible to varying
4
The relevant policy provisions say that a covered "'occurrence' means an accident,
including continuous or repeated exposure to substantially the same general harmful conditions,"
section V.9., and specifically exclude coverage for "'Bodily injury' . . . expected or intended from
the standpoint of the insured." Section I.A.2.a.
17
interpretations, encompasses not only 'accidental events,' but also injuries or
damage neither expected nor intended from the standpoint of the insured." State
Farm Fire & Cas. Co. v. CTC Development Corp., 720 So.2d 1072, 1076 (Fla.
1998). "When an insurer relies on an exclusion to deny coverage, it has the
burden of demonstrating that the allegations of the complaint are cast solely and
entirely within the policy exclusion and are subject to no other reasonable
interpretation. Exclusionary clauses are generally disfavored." Northland Cas.
Co. v. HBE Corp., 160 F. Supp. 2d 1348, 1359 (M.D. Fla. 2001) (internal citations
omitted). Moreover, Florida courts construe ambiguity in policy language
liberally in favor of the insured and strictly against the insurer. Id.; State Farm,
720 So.2d at 1076.
The Underlying Complaint alleges that Beaver "breach[ed] . . . [his] dut[y]
to provide appropriate care and services," which caused the plaintiff and members
of the class to suffer bodily injury. This is the language of negligence. Based on
the policy language, it is clear that coverage for bodily injury is excluded only if
the injury was "expected or intended from the standpoint of the insured." An
injury is not excluded from coverage merely because, as here, the complaint
arguably may also allege that the defendants' conduct was intentional. See
Grissom, 610 So.2d at 1307 (holding that the unintended damage caused by
18
intentional conduct constitutes an accident). Hartford elides this distinction and
says the coverage exclusion applies because "[t]he entire state action is based upon
an intentional scheme to maximize profits."
The Florida Supreme Court has observed, however, that "[i]n many cases
the question of whether the injury or damages were unintended or unexpected will
be a question of fact; in some cases, the question will be decided as a matter of
law, such as in cases where the insured's actions were so inherently dangerous or
harmful that injury was sure to follow." State Farm, 720 So.2d at 1076. And the
duty to defend arises even where "there has been a suggestion made that the
purported negligent allegations are really allegations of intentional acts in
disguise. . . . [W]here a complaint alleges facts that are partially within and
partially outside the coverage of an insured's policy, the insurer is not only
obligated to defend, but must defend that entire suit." Sunshine Birds & Supplies,
Inc. v. United States Fid. & Guar. Co., 696 So.2d 907, 910 (Fla. 3d DCA 1997)
(citations omitted). Thus, so long as the complaint can reasonably be read as
alleging that the class members' injuries were negligently caused, even if it also
may arguably be read as alleging that the injuries were intentionally caused, the
doubt must be resolved in favor of finding a duty to defend. See id.
Hartford says that the Underlying Complaint's negligence claim, contrary to
19
its styling, really alleges that Hartford expected or intended to inflict bodily injury
on nursing home residents. Hartford relies principally on Northland v. HBE
Corp., which looked beyond the complaint's labeling of conduct as "reckless" to
hold that the injury alleged was caused intentionally. 160 F. Supp. 2d 1348 (M.D.
Fla. 2001). That case, though, was markedly different from this one. Northland
involved allegations that a hotel intentionally discriminated against African-
Americans in renting rooms. The complaint "allege[d] that . . . [the defendant
hotel] implemented discriminatory polices [sic] and practices . . . and carried out
those polices [sic] under the direction of HBE's highest officials for the specific
purpose of discouraging black persons from seeking accommodations at the
hotel." Id. at 1361-63 (emphasis added). The court concluded that labeling such
conduct "reckless" did not bring the claim within policy coverage, because the
allegations clearly belied such a label. Moreover, the Northland court decided the
issue of an insurer's duty to indemnify, which is undeniably narrower than an
insurer's duty to defend. See, e.g., U.S. Fire Ins. Co. v. Hayden Bonded Storage
Co., 930 So.2d 686, 691 (Fla. 4th DCA 2006) ("It is clear that an insurer's duty to
defend is broader than its duty to indemnify."); Rad Source Techs., Inc. v. Colony
Nat. Ins. Co., 914 So.2d 1006, 1007 (Fla. 4th DCA 2005) (same).
Hartford urges that "a corporate policy of intentionally withholding nursing
20
care can be expected to cause harm as surely as a corporate policy of
discrimination, [and] the intent to cause harm can be inferred in the instant case,
just as it was inferred in Northland." This is simply wrong. The complaint in
Northland alleged that the defendant implemented a corporate policy "for the
specific purpose of discouraging black persons from seeking accommodations at
the hotel," so the intent to cause harm was apparent from the face of the
complaint. Here, the most we can find in the complaint is the allegation that
Beaver's wrongful acts were committed with the ultimate objective of maximizing
profit. This hardly eviscerates a claim sounding in negligence. Nowhere does the
Underlying Complaint allege that Beaver acted with the objective of causing
residents bodily injury, and it does not allege conduct that, as a matter of law,
"w[as] so inherently dangerous or harmful that injury was sure to follow." State
Farm, 720 So.2d at 1076. Thus, mindful that "any doubt regarding the duty to
defend . . . must be resolved in favor of. . . requiring the insurer to defend," Baron
Oil Co., 470 So.2d at 814, we remain convinced that the Underlying Complaint
alleges facts that fairly and potentially bring the claims within policy coverage.
Accordingly, we reverse the district court's summary judgment order and conclude
that Hartford has a duty to defend Beaver in the Underlying Action.
REVERSED.
21