IN THE SUPREME COURT OF THE STATE OF FLORIDA. Supreme Court Case No. SC AGATA JANUSZCZAK. Petitioner, vs.

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA Supreme Court Case No. SC AGATA JANUSZCZAK Petitioner, vs. STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation, authorized to do business in Florida, Respondent. ON DISCRETIONARY REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL, STATE OF FLORIDA 4DCA CASE NO. 4D RESPONDENT S BRIEF ON JURISDICTION Kara Berard Rockenbach Attorney for Respondent Fla. Bar No Gaunt, Pratt, Radford & Methe, P.A Forum Way, Suite 500 West Palm Beach, FL (561) (561) facsimile krockenbach@gprmpa.com

2 CERTIFICATE OF INTERESTED PERSONS Counsel for Appellant, STATE FARM FIRE AND CASUALTY CO., certifies that the following persons and entities have or may have an interest in the outcome of this case: 1. State Farm Fire and Casualty Company, Respondent. 2. Spencer Sax/ Rachelle McBride, Trial Counsel for Respondent, 301 Yamato Rd., Suite 4150, Boca Raton, Florida Kara Berard Rockenbach, Appellate Counsel for Respondent, 1401 Forum Way, Suite 500, West Palm Beach, FL Gregg A. Tippett, Petitioner. 4. L. Donald Murrell, Trial Counsel for Petitioner Tippett, 400 Executive Center Drive., Suite 201, West Palm Beach, FL Gordon Leach, Trial and Appellate Counsel for Petitioner Tippett, 560 Village Blvd., Suite 240, West Palm Beach, FL, John P. Wiederhold, Trial and Appellate Counsel for Petitioner Hummel, 560 Village Blvd., Suite 240, West Palm Beach, FL Agata Januszczak, Petitioner. 9. Peter G. Herman, Trial and Appellate Counsel for Petitioner Januszczak, 110 S.E. Sixth Street, 15 th Floor, Fort Lauderdale, FL The Honorable Jorge Labarga, 15 th Judicial Circuit Court, West Palm Beach, FL, trial judge. 11. The Honorable Peter Blanc, 15 th Judicial Circuit Court, West Palm Beach, FL, newly assigned judge. 6. Michael J. Hummel, Petitioner. i

3 TABLE OF CONTENTS Page(s) CERTIFICATE OF INTERESTED PERSONS...i TABLE OF CITATIONS...iii PRELIMINARY STATEMENT...iv STATEMENT OF THE CASE AND FACTS... 1 JURISDICTIONAL STATEMENT... 2 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE ii

4 TABLE OF CITATIONS Page(s) Herrera v. C.A. Seguros Catatumbo, 844 So.2d 664 (Fla. 3d DCA 2003)..3, 4, 5, 6 Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla. 1989)... 2, 7, 9 Mason v. Florida Sheriff s Self-Ins. Fund, 699 So.2d 268, 270 (Fla. 5 th DCA 1997)... 9 State Farm Fire and Casualty Co. v. CTC Development Corp., 720 So.2d 1072 (Fla. 1998)... 3, 4, 5, 6, 7 State Farm Fire and Casualty Co. v. Tippett, 864 So.2d 31, 33 (Fla. 4 th DCA 2003).... 1, 2, 3, 4, 5, 6, 7, 8, 9 Sunshine Bird and Supplies, Inc. v. United States Fidelity and Guaranty Co., 696 So.2d 907 (Fla. 3d DCA 1997)... 3, 7, 8 OTHER AUTHORITIES Fla.R.App.P (a)(2)(iv) iii

5 PRELIMINARY STATEMENT This case emanates from a declaratory judgment action in which the Fourth District Court of Appeal reversed a trial court s entry of final judgment for the Petitioners, and remanded for entry of summary final judgment in favor of the Respondent. Thus, the Fourth District Court of Appeal held as a matter of first impression that the Respondent had no duty to provide a defense and indemnification to the Petitioners in the underlying action where Petitioners were sued for negligent sexual assault and battery. In this brief, the parties will be referred to as State Farm for the Respondent and Petitioners for Greg A. Tippett, Michael J. Hummel, and Agata Januszczak. Alternatively, given that the Petitioners Tippett and Hummel have served a separate jurisdictional brief from Agata Januszczak, Petitioners may be referred to respectively, as follows: Tippett, Hummel, and A.J. Presently, this Court has assigned case number SC to A.J. s appeal and case number SC to Tippett and Hummel s appeal. In the event that the appeals are consolidated, Respondent has addressed all Petitioners arguments in this brief. The typeset or font used is Times New Roman, 14 point. iv

6 STATEMENT OF THE CASE AND FACTS State Farm filed this declaratory judgment action based upon the underlying case in which A.J. sued both Tippett and Hummel for negligent sexual assault and battery. Specifically, A.J. alleged that Tippett and Hummel or a third person drugged her with GHB (Gamma Hydroxybutyric Acid), then caused A.J. to engage, without her consent and while incapacitated, in sexual activities with Tippett and Hummel in the parking lot of a Boca Raton nightclub. State Farm Fire and Casualty Co. v. Tippett, 864 So.2d 31, 33 (Fla. 4 th DCA 2003)(hereafter referred to as Tippett ). These general allegations of forcible rape with an incapacitated woman were incorporated throughout the complaint and in subsequent negligence and sexual assault and battery counts. Id. State Farm moved for final summary judgment as to the Fifth Amended Complaint, and orally as to the Sixth Amended Complaint with no procedural objections raised by Tippett, Hummel or A.J. On appeal, the Fourth District acknowledged that [w]hile the Florida courts have yet to address whether insurance coverage exists for the negligent rape or sexual assault of an adult, other jurisdictions have declined to allow such coverage. Tippett, 864 So.2d at 35. Finding no duty to defend or indemnify based upon the allegations in this case based upon the language found in the policy s exclusion, the Fourth 1

7 District Court of Appeal reversed the trial court s entry of final judgment and remanded for entry of summary final judgment in favor of State Farm. Tippett, 864 So.2d at 36. JURISDICTIONAL STATEMENT This case was neither certified to be of great public importance, nor certified to be in direct conflict with a decision of any other appellate court. Because of the opinion s clear acknowledgment that no Florida court has ever previously addressed this precise insurance coverage issue, this decision logically cannot be in express and direct conflict with a decision of another district court of appeal or of the supreme court on the same question of law. Tippett, 864 So.2d at 35; Fla.R.App.P (a)(2)(iv). No discretionary jurisdiction exists. SUMMARY OF ARGUMENT No discretionary jurisdiction lies because express and direct conflict fails to exist between the Tippett decision and any other district court of appeal or supreme court decision on the same question of law. By incorporating this Court s conclusions in Landis and other jurisdictions which have ruled on this issue, the Tippett decision enunciated a new holding that no insurance coverage exists for negligent rape or sexual assault of an incapacitated adult based upon a policy exclusion and public policy. Accordingly, no requisite conflict exists for this Court to accept 2

8 discretionary jurisdiction. ARGUMENT THE TIPPETT DECISION CANNOT EXPRESSLY AND DIRECTLY CONFLICT WITH ANOTHER APPELLATE DECISION ON THE SAME QUESTION OF LAW BECAUSE THIS CASE WAS ONE OF FIRST IMPRESSION. A.J. contends that the Fourth District Court of Appeal s decision in this case conflicts with Herrera v. C.A. Seguros Catatumbo, 844 So.2d 664 (Fla. 3d DCA 2003) and with Sunshine Bird and Supplies, Inc. v. United States Fidelity and Guaranty Co., 696 So.2d 907 (Fla. 3d DCA 1997). Tippett and Hummel argue that the below decision conflicts with Herrera and with State Farm Fire and Cas. Co. v. CTC Dev. Corp, 720 So.2d 1072 (Fla. 1998). In response, State Farm asserts that the decision below cannot logically present express and direct conflict with a decision of another district court of appeal or of the supreme court on the same question of law because this case was one of first impression. Most notably, the Fourth District Court of Appeal acknowledged in its majority opinion: While the Florida courts have yet to address whether insurance coverage exists for the negligent rape or sexual assault of an adult, other jurisdictions have declined to allow such coverage. (Citations omitted). Tippett, 864 So.2d at 35. Based upon the tenor and analysis of the decision, West s 3

9 Publishing reported the decision s holding: The District Court of Appeal...held as a matter of first impression that coverage was barred by intentional injury exclusion. Id. at 31. Accordingly, no conflict lies because this case dealt with a narrow question of law never previously addressed by any Florida court. All Petitioners contend that Herrera conflicts with the Tippett decision. However, Herrera is factually and legally distinguishable in that it involved an underlying action where the plaintiffs, airline passengers, sued the airline for negligence, false imprisonment and intentional infliction of emotional distress stemming from body strip/cavity searches. 844 So.2d at 665. Unlike the case at bar, the Herrera plaintiffs did not sue the perpetrators for negligent sexual assault. In deciding that coverage existed, the Third District based its reasoning on four legal points: the plaintiffs were covered third parties under the policy; the plaintiffs had suffered bodily injuries in accordance with the policy definition; the incident was an accident pursuant to this Court s pronouncement in State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072 (Fla. 1998); and that the malicious acts exclusion in the policy did not preclude coverage because malicious behavior was not implicit in all three of the plaintiffs theories of recovery. 844 So.2d at

10 On the accident and CTC Dev. Corp. point, the court noted that while there was evidence that the airline employees intentionally had the plaintiffs removed from the aircraft and either asked that they be searched or failed to object to the body searches, there was no evidence that the employees removed the plaintiffs for the purpose of subjecting them to cavity searches or for the purpose of subjecting them to physical harm. Herrera, 844 So.2d at 667. This third legal point is in contrast to the facts and legal conclusions of Tippett. In Tippett, there were unequivocal allegations that Tippett and Hummel dragged A.J. to a vehicle in the parking lot of the nightclub where Tippett and Hummel intended to and did strike A.J. and sexually assault her by touching her breasts, digitally penetrating her vagina, and/or engaging in vaginal sexual intercourse and/or oral sex, intending to cause and did cause actual physical harm to A.J. Tippett, 864 So.2d at 33. Tippett and Hummel caused A.J. to engage, without her consent and while incapacitated after being drugged without her knowledge, in sexual activities. Id. Unlike the airline employees in Herrera, Tippett and Hummel clearly removed A.J. by dragging her to the parking lot for the purpose of subjecting her to physical, not to mention psychological, harm. Unlike Herrera, the decision at bar did not address the legal question of the applicability of third party insureds, bodily injury or accident definitions, nor 5

11 of malicious acts exclusions. Rather, Tippett narrowly focused on whether the policy s intentional acts exclusion precluded coverage for negligent rape or sexual assault of an incapacitated adult. Tippett, 864 so.2d at Herrera did not involve the drugging, dragging and raping of a young women by two men in the parking lot of a Boca Raton nightclub. Additionally, Herrera never once mentioned the public policy of disallowing insurance coverage for such intentional acts. In contrast to Herrera, once the Fourth District Court of Appeal concluded that the policy in this case precluded insurance coverage for negligent rape or sexual assault of an incapacitated adult, it fortified its decision with the cogent public policy that dictates against insuring for losses from intentional or criminal acts. 864 so.2d at 36. Accordingly, Herrera does not expressly and directly conflict with Tippett. Next, Tippett and Hummel argue that Tippett conflicts with State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072 (Fla.1998). However, instead of departing from this Court s pronouncement in CTC, the Tippett court cited CTC s law pertaining to accidental events from the insured s standpoint. Tippett, 864 So.2d at 34. In fact, CTC is supportive of Tippett s conclusion given CTC s citation to this 1 Although State Farm had raised the willful and malicious acts exclusion and the opinion references the same, the decision to deny coverage was based solely upon the intentional acts exclusion and the Landis decision. See Tippett, 864 So.2d at 36. 6

12 Court s earlier decision of Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla. 1989), acknowledging that when an insured s acts are so inherently harmful, they can not be considered accidental because the intent to commit the act (abuse) necessarily includes the intent to commit the harm. CTC, 720 So.2d at More analogous to the case at bar than CTC is this Court s decision in Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla.1989), which involved sexual molestation of children and denial of insurance coverage based upon the intentional acts exclusion. Following Landis, the Tippett court recited that the specific intent to commit harm is not required by the intentional acts exclusion as some form of harm inheres in and inevitably flows from the proscribed behavior. Tippett, 864 So.2d at 36 (citing Landis, 546 So.2d at 1053). As this Court proclaimed, To state that a child molester intends anything but harm and long-term emotional anguish to the child defies logic. Landis, 546 So.2d at Logically, there can be no difference between a child in Landis who is too young to render consent and an incapacitated adult in Tippett who is unable to give her consent. 2 Finally, A.J. contends that the Tippett decision cannot be reconciled with Sunshine Bird and Supplies, Inc. v. United States Fidelity and Guaranty Co., The underlying complaints fortify this point by alleging in the general allegations that A.J. was incapacitated and caused to engage without her consent in sexual activities. Tippett, 864 So.2d at 33. 7

13 So.2d 907 (Fla. 3d DCA 1997). Specifically, A.J. believes that the following statement conflicts: A.J. s novel pleading in her Sixth Amended Complaint will not be permitted to circumvent an insurance policy exclusion. Tippett, 864 So.2d at 36. A.J s novel pleading was negligent sexual assault. Unlike Sunshine Bird and Supplies, Inc., there was more than merely a suggestion made that the purported negligent allegations were really allegations of intentional acts in disguise. Rather, the general allegations of the underlying complaints in Tippett which were realleged and adopted throughout asserted that A.J. was incapacitated and caused to engage without her consent to sexual activities. Tippett, 864 So.2d at 33. In contrast, the underlying complaint in Sunshine Bird and Supplies, Inc. alleged negligence against the employer for hiring, retaining, training and supervising the alleged sexual molesters. 696 So.2d at 908. This contrasts with Tippett s underlying complaint being pled against the alleged rapists/molesters for the act of sexual assault and battery. Clearly, no express and direct conflict exists between Tippett and Sunshine Bird and Supplies, Inc. because the pleading in Tippett was novel and never before addressed by a Florida appellate court. In conclusion, Tippett expressly recognized that no Florida court had yet addressed whether insurance coverage exists to protect the alleged rapist for the 8

14 negligent rape or sexual assault of an adult. Tippett further held that no coverage exists for the allegations in this case based upon the language found in the policy s exclusion. 864 So.2d at 36 [e.s.]. Following other jurisdictions and this Court s pronouncement in Landis, the Fourth District Court of Appeal correctly decided to decline to allow coverage. The declination of such coverage comports with the public policy in Florida that intentional or criminal acts should not be insured because it would shift the financial burden from the wrongdoer to the insurer. Tippett, 864 So.2d at 36; see also Mason v. Florida Sheriff s Self-Ins. Fund, 699 So.2d 268, 270 (Fla. 5 th DCA 1997)(public policy of the State of Florida precluded insurance coverage for such intentional acts as sexual battery). CONCLUSION No express and direct conflict exists between the Tippett decision and any other district court of appeal or supreme court decision on the same question of law. By incorporating this Court s conclusions in Landis and other jurisdictions which have ruled on this precise issue, the Tippett decision enunciated a new rule of law pertaining to the declination of insurance coverage for negligent rape or sexual assault of an incapacitated adult. Accordingly, no requisite conflict exists for this Court to accept discretionary jurisdiction pursuant to Florida Rule of Appellate Procedure 9

15 9.030(a)(2)(iv). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished this day of April, 2004, by regular U.S. mail to: John P. Wiederhold, Esq./Gordon Leach, Esq., 560 Village Boulevard, Ste. 240, West Palm Beach, FL 33409; Donnie Murrell, Esq., 400 Executive Center Drive, Ste. 201, West Palm Beach, FL 33409; Peter G. Herman, Esq., 110 S.E. 6 th Street, 15 th Floor, Ft. Lauderdale, FL 33301; Rachelle McBride, Esq./Spencer Sax, Esq., 301 Yamato Rd., Suite 4150, Boca Raton, FL KARA BERARD ROCKENBACH, ESQUIRE Florida Bar No Forum Way, Suite 500 West Palm Beach, FL (561) FAX: (561) krockenbach@gprmpa.com CERTIFICATE OF COMPLIANCE In accordance with Florida Rules of Appellate Procedure 9.210(a)(2) and 9.100(1), I hereby certify that the foregoing Initial Brief has a typeset font of Times New Roman 14. Kara Berard Rockenbach Fla. Bar No