Samantha Joseph | Daily Business Review | April 7, 2017
A dispute before the Florida Supreme Court looks like it could play by the book, specifically Black’s Law Dictionary. At the heart of the case is a question on whether insurers have a duty to intervene on a client’s behalf during pre-litigation efforts involving construction defect claims.
But it was the dictionary—and its definition of a legal “proceeding”—that took center stage during oral arguments Thursday, as one side sought to persuade the high court these pre-suit claims constituted judicial actions, and the other insisted they didn’t.
The court peppered appellant attorney Adam Handfinger with questions aimed at deciphering whether the claims met the dictionary’s parameters of “any procedural means for seeking redress from a tribunal or agency.”
“If (you) go by that, then this is not a civil proceeding,” Justice C. Alan Lawson said.
Justice Barbara J. Pariente seemed inclined to agree, noting the construction pre-suit process lacked an adjudicator—a key component under the dictionary’s definition.
The case pits Altman Contractors Inc. against general commercial liability insurer, Crum & Forster Specialty Insurance Co., which refused to step into a construction defect spat with a condo association. It stems from Altman’s role as general contractor for the luxury high-rise Sapphire condominiums in Fort Lauderdale.
That condo association served Altman with a notice of claim under Chapter 558 of the Florida Statutes, which governs construction defects.
Altman argued Crum & Forster had a duty to defend it, but the insurer countered the 558 claims were “not in suit.”
“The reason it’s become this nuanced discussion about what’s in the definition and what’s in the policy is that the policy is purposefully broad,” said Handfinger, co-partner in charge of Peckar & Abramson in Miami. “The definitions in the policy are broad, but they’re trying to ask the court to read them narrowly.”
Altman’s general commercial liability insurance policies with Crum & Forster define a “suit” as “a civil proceeding”—bad news for the contractor. But their definition also includes “arbitration” and “any other alternative dispute resolution … to which the insured submits with our consent.”
That last clause about consent was another sticking point for the justices, who weighed whether participation in the pre-suits was mandatory for respondents.
“None of my clients ever ignore this process,” Mark A. Boyle of Boyle & Leonard told the court. “We always participate.”
Boyle made an appearance for Altman and filed an amicus brief for the South Florida Associated General Contractors, Construction Association of South Florida, Leading Builders of America, Florida Home Builders Association and the National Association of Home Builders of America.
Meredith N. Reynolds of Peckar & Abramson appeared with Handfinger for Altman.
Kimberly A. Ashby of Foley & Lardner in Orlando and Holly S. Harvey of Clyde & Co in Miami appeared for Crum & Forster.