TJOFLAT, Circuit Judge:
In this case, a marine engineering firm purchased an architect's and engineer's professional liability insurance policy, which insured the firm against any liability it might incur in a tort action for the negligent preparation of working drawings used to build an oceangoing passenger vessel. After the vessel was launched and in operation, a tragic accident occurred when the bulkhead door in the vessel's forward engine room malfunctioned, causing the death of the ship's captain. The captain's personal representative, claiming that the engineering firm and the shipbuilder were independently at fault, brought an action against them in state court. Pursuant to the insurance policy, the insurance company provided the engineering firm a defense. The shipbuilder demanded that the insurance company provide it a defense as well, but the insurance company refused to do so on the ground that the policy did not cover the shipbuilder as an insured. The insurance company having denied coverage, the shipbuilder turned to its own insurance company for a defense. Its insurer had issued the shipbuilder a comprehensive marine liability policy, which insured the shipbuilder against any liability it might incur in a tort action based on its own negligence.
After the two insurance companies separately settled with the personal representative, the shipbuilder and its comprehensive
The engineering firm is Guido Perla & Associates ("GPA"). In April 1998, GPA, pursuant to a contract with Delta Queen Steamboat Company ("Delta Queen"), began preparing the specifications and guidance drawings to be used in the construction of two passenger vessels, the Cape May Light and the Cape Cod Light.
On January 12, 2000, AMI entered into a contract with GPA ("the AMI-GPA Agreement" or "the Agreement") under which GPA agreed to complete on behalf of AMI the design and engineering services called for by GPA's contract with Delta Queen. GPA agreed to do so "in a manner ... consistent with all appropriate professional standards." Doc. 1-2, ¶ 2, at 2. The Agreement required GPA to obtain four separate forms of insurance. Two are relevant here: one would provide comprehensive general liability ("CGL") insurance; the other would provide architect's and engineer's professional liability ("A & E") insurance.
The Cape May Light was christened in Alexandria, Virginia, in April 2001. Later that year, on October 27, the ship was berthed in Green Cove Springs in Clay County, Florida, in anticipation of an extended lay-up period. At approximately 4:30 P.M., the ship's captain, Charles Beverly, and the port engineer were in the forward engine room. At one end of the room was a watertight forward bulkhead door, which was designed to shut automatically upon the loss of power. The port engineer left the room to secure the port fueling station, leaving Captain Beverly to cut the ship's power and disconnect its battery terminals. After Captain Beverly
On October 25, 2002, Captain Beverly's personal representative, Ann Beverly ("Beverly"), filed a wrongful-death action against IMUSA,
In February 2003, AMI demanded that GPA or its insurers, Evanston and Hartford, provide it with a defense to the claims of strict liability and negligence.
Evanston rejected AMI's demand on multiple grounds. First, since AMI was neither a named nor an additional insured in the A & E policy, it was not contract-bound to provide AMI with a defense. Second, AMI was being sued for its own negligence, not GPA's, and the policy did not provide coverage for AMI's negligence. Finally, AMI could not recover under the policy unless and until it obtained a judgment against GPA establishing that GPA's negligent performance of professional services caused Captain Beverly's death. Hartford also rejected AMI's demand. Although the record does not disclose the reasons for Hartford's rejection, it appears that Hartford's position was that AMI was neither a named nor an additional insured under GPA's CGL policy; moreover, the policy excluded coverage for GPA's negligent performance of professional services.
Evanston provided a defense for GPA as required by the A & E policy. American Home Assurance Company ("American Home"), AMI's comprehensive marine liability insurer, provided AMI's defense. In their answers to the Beverly complaint, both AMI and GPA denied the allegations of wrongdoing. Then, after the parties had joined issue, AMI moved the court for leave to file a cross-claim against GPA. The proposed cross-claim sought indemnification from GPA for any damages it might have to pay Beverly due to GPA's negligence in designing or engineering the bulkhead door.
The motion was still pending when Evanston and American Home separately settled Beverly's claims against their respective named insureds, GPA and AMI.
After these settlements were reached, AMI and American Home brought this declaratory judgment action against Evanston and Hartford.
On cross-motions for summary judgment, the District Court found that AMI was a third-party beneficiary under the insurance contract between Evanston and GPA. The policy therefore provided AMI coverage for the claims Beverly asserted against it and obligated Evanston to provide it with a defense against Beverly's claims.
This appeal presents two issues. The first is whether, under the terms of the A & E policy, including its endorsements, Evanston was obligated to provide AMI a defense in the Beverly lawsuit. Evanston was obligated to do so if the allegations underpinning Beverly's claims came within the coverage the policy provided. See Jones v. Fla. Ins. Guar. Ass'n, 908 So.2d 435, 442-43 (Fla.2005) ("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.").
Evanston was not obligated to provide AMI a defense in the Beverly lawsuit unless the A & E policy it issued GPA covered Beverly's clams. We therefore begin our resolution of the first issue by examining the policy's coverage. We then consider whether the facts alleged in Beverly's complaint fell within the ambit of this coverage.
The policy's coverage was set out in Paragraph I of its Insuring Agreements, as follows:
Doc. 1-2, ¶ 1, at 33.
Beverly's claims for damages against AMI, Counts III and IV of the wrongful-death complaint, were based on strict liability and negligence, respectively. In Count III, Beverly alleged, essentially, that AMI installed the bulkhead door that caused Captain Beverly's death and that the door was defective and unreasonably dangerous for several reasons, including that a person caught or trapped in the door could not reach or activate a release mechanism to disengage or release the door. The facts underpinning Count IV were that AMI was negligent in installing a bulkhead door containing the defects described in Count III.
It is obvious that these factual allegations did not bring Beverly's claims within the coverage provided by Paragraph I of the Insuring Agreements. AMI concedes as much. This coverage obligated Evanston to satisfy any judgment Beverly might obtain against GPA for negligently designing the bulkhead door, not a judgment recovered against AMI for negligently installing the door. Because the Insuring Agreements provided AMI no coverage, AMI had to find coverage elsewhere in the insurance policy.
AMI points to two endorsements to the policy, Endorsements Nos. 10 and 11, as providing the necessary coverage. Both were issued pursuant to the AMI-GPA Agreement. According to AMI, the endorsements made it a third-party beneficiary of the insurance contract, giving it the status of an insured and the right to a defense at Evanston's expense. The District Court agreed. It found that Endorsements Nos. 10 and 11 evidenced Evanston and GPA's intent that the policy primarily benefit AMI and "explicitly extend[ed] coverage to AMI" for Beverly's claims. Doc. 88, at 8-10.
Endorsement No. 10 amended one of the policy's exclusions, Exclusion I. That exclusion states:
Doc. 1-2, at 34. This form of exclusion is standard in most commercial general liability policies. It omits from coverage the liability of non-insureds assumed by the named insured under an agreement with the non-insured to indemnify or hold harmless the non-insured.
Doc. 26-2, at 37 (emphasis added).
The first sentence of the endorsement reprinted the language of Exclusion I, which provided AMI no coverage. See Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 740 (Fla.2002) ("[P]olicy exclusions cannot create coverage where there is no coverage in the first place." (quotation marks omitted)). And the second sentence merely clarified the first sentence: if AMI were to bring a breach-of-contract claim against GPA and prevail, GPA would have coverage and Evanston would pay AMI's judgment, provided that GPA's liability for the breach was based on its performance of professional services. In short, Endorsement No. 10 did not transform Exclusion I into an insuring agreement and thereby provide AMI with coverage for its own tortious conduct.
Turning to the second endorsement on which AMI relies, Endorsement No. 11 stated:
Doc. 1-2, ¶ 1, at 24. AMI contends that although Evanston did not expressly include AMI as an insured under the policy, Evanston intended that Endorsement No. 11 — read against the background of Endorsement No. 10 — create coverage for the claims Beverly stated in Counts III and IV of her complaint.
Endorsement No. 11 stated, in essence, that the coverage the A & E policy afforded GPA would apply to AMI, too, if AMI were held liable to Beverly (or anyone else) for an "act, error, or omission" of GPA in its performance of professional services in connection with AMI's construction of the Cape May Light. Thus, had Beverly, in her wrongful-death action, obtained a judgment against AMI based on a finding that GPA's negligence in designing the bulkhead door caused Captain Beverly's death, Evanston would have paid the judgment.
AMI's argument seems to be that the fact that it settled Beverly's claims rather than suffer the entry of a judgment of "liability imposed by law" should not matter: as a third-party beneficiary of the insurance contract, the mere possibility that it might have been found liable to Beverly based on GPA's negligent design of the bulkhead door entitled it to a defense. We disagree. After considering what would have transpired had Evanston acceded to AMI's demand to step in and take over its defense, we conclude that AMI was not a third-party beneficiary as the District Court found.
Here is what would have happened had Evanston assumed AMI's defense: In providing both its named insured (GPA) and AMI with a defense to Beverly's claims, Evanston would have found itself in a conflict of interest. To avoid the conflict, instead of selecting counsel to represent the respective parties, thereby maintaining some control over the conduct of their defenses, Evanston would have had to give the parties the funds to employ counsel of their choice and to pay the expenses incurred in their separate defenses. See Fla. Stat. § 627.426(2) (requiring insurers,
Evanston and GPA could not have intended such an arrangement. True, they agreed that Evanston would indemnify AMI for any liability "imposed" on it "by law" due to GPA's negligent performance of professional services. But they hardly intended that Evanston, at GPA's expense,
In sum, we find no basis for the District Court's third-party-beneficiary finding and set aside the court's determination that Evanston was obligated to provide AMI a defense.
The second issue before us in this appeal is whether the District Court erred in holding Evanston liable for the $325,000 sum American Home paid Beverly to settle her claims. The short answer is yes. American Home failed to establish, as required by Endorsement No. 11, that AMI's liability for Captain Beverly's death was the result of an "act, error, or omission of [GPA] arising out of the professional services" it had performed. This feature of Endorsement No. 11 mirrored the procedure required by Florida Statutes § 627.4136, which provides, in relevant part:
That the A & E policy mirrors this Florida statute should not be surprising, as insurance policies in Florida incorporate the requirements of Florida's insurance code. E.g., Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996); Dep't of Ins. v. Teachers Ins., 404 So.2d 735, 741 (Fla.1981) (citing Bd. of Pub. Instruction v. Town of Bay Harbor Islands, 81 So.2d 637 (Fla.1955)).
Because we reverse the District Court's judgment in favor of AMI and American Home and direct the entry of judgment for Evanston, the court's award of attorney's fees under Florida Statute § 627.428 is also reversed.
For the foregoing reasons, the judgment of the District Court is REVERSED. On
SO ORDERED.
Doc. 1-2, at 5 (emphasis added). Although paragraph (2), unlike paragraph (4) contains no reference to GPA as the "named insured," by specifying that GPA would take out the insurance and that AMI must be covered as a named inured, the parties implicitly agreed that GPA would be the named insured.
Doc. 1-2, at 20. The District Court held that though Endorsement No. 7 indeed required Evanston to notify and obtain AMI's consent before settling claims, AMI could not succeed in its claim because it failed to adequately plead damages. Doc. 88, at 7-8. AMI has not cross-appealed the court's ruling.
The amount of attorney's fees consisted of the sum of $125,790 for the period of time prior to the district court's grant of summary judgment in the declaratory judgment action and $38.515.26 for the work completed following its grant of summary judgment. Because of the way we resolve this appeal, we do not address the District Court's holding that AMI was an "omnibus insured" entitled to attorney's fees in this declaratory judgment action pursuant to § 627.428.
AMI has also argued that the phrase "such insurance ... applies to the liability of others imposed by law" means that "others" are insureds. See Appellees'/Cross-Appellants' Br. 15-16. But the phrase "liability of others imposed by law" in Endorsement No. 11 specified the category of liability to which insurance extended, not who qualified as an insured. In this case, the endorsement would have extended coverage to GPA in the event that a third party obtained a judgment against AMI requiring it to pay tort damages because of GPA's professional negligence in designing the Cape May Light or the Cape Cod Light.