Case regarding definition of 'suit' remanded to 11th Circuit

By Angela Underwood | Jan 10, 2018

TALLAHASSEE — The Florida Supreme Court has remanded a case regarding the definition of a "suit" to the U.S. Court of Appeals for the 11th Circuit for further proceedings.

Five justices concurred and two dissented in part in a Dec. 14 opinion authored by Justice Ricky Polston regarding the notice and repair process set forth in Florida Statutes Chapter 558 that a complaint Altman Contractors Inc. filed against Crum & Forster Specialty Insurance Co. (C&F) was indeed a legitimate suit.

Altman Contractors was insured by Crum & Forster, and the insurer had a duty to defend Altman under a general liability policy in any "suit," according to the opinion. 

The case came after Altman was hired to be the general contractor for the construction of Sapphire Condominium (Sapphire) in Broward County, the opinion states. The problem began in 2012, when Sapphire served Altman with several Chapter 558 notices claiming more than 800 defects in the Sapphire project.

Altman Contractors was insured by Crum & Forster.   File photo

Altman notified Crum & Forster in 2013 of the notices and requested the insurer represent the company. Crum & Forster declined to defend the claim, according to the opinion. Eventually, Altman filed a claim in the U.S. District Court for the Southern District of Florida, which found "no ambiguity in the policy provisions at issue,” so he appealed to the 11th Circuit.

However, according to the state Supreme Court opinion, Altman's insurance policy did not provide definitions for a “civil proceeding” or “alternative dispute resolution proceeding” in definition to "suit."

After analyzing the meaning of “civil proceeding” and determining that Chapter 558 does not take place in a court of law or produce legally binding results, Polston wrote that “Chapter 558 sets forth a presuit process whereby the claim may be resolved solely by the parties through a negotiated settlement or voluntary repairs without ever filing a lawsuit."

Though Polston notes there is no question for some of the claims in the underlying coverage of the policy, what is dubious “is the notice and repair process set forth in Chapter 558, Florida Statutes, a ‘suit’ within the meaning of the commercial general liability policy issued by C&F to Altman?” 

“However, we do not address whether, in this case, C&F consented to Altman’s participation in the Chapter 558 process, thereby giving rise to its duty to defend, because it is outside the scope of the certified question and an issue of fact disputed by the parties,” Polston wrote in the opinion.

After further analysis under the legal standard, the seven judges could not come to a final decision.

“We remand this case to the United States Court of Appeals for the 11th Circuit for further proceedings,” Polston wrote in the appeal.

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