United States: Florida Appellate Court Finds That An Additional Insured Is Entitled To The Appointment Of Separate And Independent Defense Counsel

Last Updated: March 19 2013
Article by Kellyn J.W. Muller

University of Miami v. Great American Assurance Company, et al. No. 3D09-2010 – Third District Court of Appeal – State of Florida

On February 20, 2013, in a matter of first impression in the state of Florida, the Third District Court of Appeal ruled 2-1 that an additional insured was entitled to the appointment of separate and independent defense counsel in a liability matter involving multiple insureds with "conflicting legal positions." The majority opinion, written by Judge Suarez with Chief Judge Wells concurring, determined that the retention of separate defense counsel was necessary, simply because: 1) the complaint alleged each insured was independently negligent; and 2) each insured sought contribution and indemnification from the other. Judge Suarez found that these allegations were enough to create a "legal dilemma" for defense counsel in advancing the defense interests of one insured to the potential detriment of the other. In an 11-page dissent, however, Judge Shepherd expressly rejected the majority's holding, characterizing the insureds' mutual defense interests as nothing more than a "paper conflict" that fails to justify the retention of separate counsel.

The underlying liability matter involved a personal injury lawsuit commenced by the parents of a four-year-old child who suffered extensive injuries after being pulled unresponsive from a pool on the campus of the University of Miami (UM). The child was enrolled as a camper at MagiCamp, which ran a summer swim camp on the campus of UM. Both UM and MagiCamp were named defendants in the child's lawsuit, which advanced allegations of negligent supervision against both UM and MagiCamp, as well as vicarious liability against UM for the negligence of MagiCamp.

UM was an additional insured under a Great American commercial general liability policy insuring MagiCamp. Great American retained one law firm to represent both UM and MagiCamp under the liability policy. Defense counsel filed an answer with affirmative defenses on behalf of both UM and MagiCamp, which asserted standard claims for "indemnity and/or contribution" from "persons or entities other than Defendants" who caused the child's injuries. There was no question as to coverage under the liability policy and no possibility of an excess judgment against UM or MagiCamp.

Once the answer was filed, UM retained separate counsel who advised Great American, by way of letter, that, in his view, there was a conflict of interest in the single representation of both UM and MagiCamp. Counsel demanded UM be appointed independent defense counsel of UM's choice. The letter further argued that MagiCamp, and not UM, was the culpable party in the underlying litigation. Great American denied UM's request for independent counsel, maintaining that no actual conflict of interest existed as between the interests of UM and MagiCamp.

UM thereafter retained its own defense counsel to protect its defense interests and, after the underlying case was settled by Great American, filed a declaratory judgment action against Great American seeking a determination that Great American breached its contractual duty to UM by refusing to provide it separate and independent counsel. UM sought reimbursement of attorney's fees and costs expended in the underlying action. The parties cross-moved for summary judgment. The Circuit Court for Miami-Dade County granted summary judgment in favor of Great American. UM appealed.

On appeal, the Third District Court of Appeal reversed. Pointing to the allegations of independent negligence advanced against UM and MagiCamp in the underlying action, coupled with UM and MagiCamp's mutual claims for contribution and indemnity, the Court of Appeal determined these allegations were enough to create a "legal dilemma" for defense counsel in advancing the defense interests of one insured to the potential detriment of the other. Because UM and MagiCamp were the only defendants in the underlying action, the Court of Appeal construed the contribution and indemnity claims as claims made by UM against MagiCamp, and vice versa. Consequently, the question presented, in the words of the court, was:

[W]hether, in this factual scenario, where both the insured and the additional insured have been sued, and the allegations claim that each is directly negligent for the injuries sustained, a conflict between the insured and the additional insured exists that would require the insurer to provide separate and independent counsel for each. (emphasis added).

The court said yes, and concluded that "Great American's counsel would have had to argue conflicting legal positions, that each of its clients was not at fault, and the other was, even to the extent of claiming indemnification and contribution for the other's fault." (emphasis added). The court further concluded that "[i]n doing so, legal counsel would have had to necessarily imply blame to one co-defendant to the detriment of the other." (emphasis added). The court's decision thus rested on what the court viewed as necessary arguments to be made by counsel, as dictated by the specific facts presented in the underlying litigation and the manner in which the parties pled. Arguably, therefore, the holding is limited to the specific facts of this case – an argument supported by the very words of the court, which limited legal analysis of the question presented to "this factual scenario."

Judge Shepherd's dissent further criticizes the majority's opinion that a conflict of interest existed between the defense interests of UM and MagiCamp. While the majority viewed the conflict as actual and real, Judge Shepherd characterized it as nothing more than a "paper conflict," arising by virtue of the generic claims for indemnity and contribution advanced by UM and MagiCamp. Espousing a more practical approach to the issue, Judge Shepherd noted that neither UM nor MagiCamp were required to prove the other's liability in the underlying litigation. That burden rests solely with the plaintiff. Consequently, despite the claims for indemnity and contribution advanced by UM and MagiCamp, there was never a "substantial risk" that one would place blame on the other – "[t]hus, there was no real conflict and no need for self-appointed counsel."

While the majority's holding is arguably limited to the facts of this decision, it remains to be seen whether it will have more far-reaching application. At the very least, the majority's opinion cautions against generic pleading and the assertion of blanket claims for indemnity and contribution among codefendants who are also co-insureds. This issue becomes more prevalent in negligence claims involving general contractors and subcontractors, manufacturers and suppliers, or companies with contracts that incorporate indemnity and/or hold harmless agreements.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions