Justin Loring

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From: Don Roper <donroper@roperandroper.com>
Tuesday, September 9,2014 6:58 PM
Andrew Dayes
teresa roper; Bo Belohlavek; Cindy Todd; Judy Day; Lindsey Joslyn; Justin Loring; Janette
McClain;Jenny Navas
Re: One Beacon, Fla lnsurer Settle lnsurance Fight Over
Boo Yah !
Justin, post on our website and highlight part at end about us.
Don
Sent from my iPhone
On Sep 9,2014,atll:45 AM, Andrew Dayes <ddayes@roperandrop
wrote:
One Beacon, Fla, lnsurer Settle
Gonstruction Gontractor Row
Share us on: By David McAfee
Law360, Los Angeles (September 05, 2014,6:33 PM ET) -- Reinsurer OneBeacon
lnsurance eo. has agreed to settle a long-running lawsuit brought against it by Public Risk
Management of Florida over reimbursement for defense costs in a Florida city's billing fight
with a contractor, according to documents filed Thursday in Florida federal court.
U"S. District Judge Gregory A. Presnell dismissed the case without prejudice Friday,
just
one day after the plaintiff filed a notice of settlement. The deal comes less than three
months after the leventh Circuit unanimously determined that Public Risk had a duty to
defend the city of Winter Garden, Florida, against claims brought by Dewitt Excavating lnc
and that OneBeacon must therefore share in the insurer's costs.
Settlement details weren't available and representatives for the parties didn't immediately
return requests for comment Friday.
he
judge's
Thursday order resolves the lawsuit brought by Public Risk against OneBeacon
over reimbursement for a Florida city's defense costs in a billing fight with a construction
contractor. The leventh Circuit's panel
decision in June reversed a ruling that set
OneBeacon free after finding the insurer provided eoverage to the city by mistake.
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ln the underlying suit, Dewitt demanded payments from the city on a project that was
completed behind schedute. After the eontractor settled, a Florida federal court found that
OneBeacon had no obligation to foot a $287,000 slice of the resulting defense bill because
the underlying breach-of-contract claims fell outside the coverage for wrongful acts in the
city's policy with Public Risk.
But the Eleventh Circuit found that Dewitt had alleged more than
just
a breach
-
it also
claimed that city offieials had created a flawed bid package and furnished inaccurate
information about the work to be done"
Those two theories of recovery were enough to bring the complaint within the policy's scope
of coverage because they seek damages based on the city's mistakes, misstatements or
omisslons, according to the opinion.
The appeals court criticized the district court's conclusion that Dewitt had not alleged a
theory of liability based on a wrongful act, which it reached after analyzing the underlying
complaint "as
a whole." Under its reading, the district court found that "the asserted basis
for money damages was Winter Garden not paying what it allegedly owed."
The appeals court called this analysis "reductive" and said it had no support under Florida
law or appellate precedent.
The panel also overturned the district court's conelusion that coverage was barred by an
exclusion for losses arising out of intentional breaches of contract. While OneBeacon
asserted that the exclusion was broad enough to cover the underlying claims, the leventh
Circuit noted that Florida insurance law distinguishes claims from losses and that "if some
of the alleged losses could be independent of the alleged intentional breach, the duty to
defend would still exist,"
The panelfound
several claims in the underlying case that did not depend on or relate to
any intentional breach, such as for payments
the contractor said it would have to make to
utilities it damaged or for declines in its own productivity as a result of the city's mistakes.
Dewitt's lawsuit essentially pinned the blame on the city for significant delays in its
relocating utilities on a Florida state road. There were far more utilities along the road than
the city had indicated, and Dewitt found many unknown or unidentified utilities that did not
appear on the project
drawings provided
by the city, according to the opinion.
The city ultimately settled the litigation and agreed to pay an additional
$1.35 million forthe
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project, after which the city asked Public Risk to cover its defense, but not indemnification,
costs.
Representatives for the parties didn't immediatley return requests for comment on Friday.
Public Risk is represented by Donovan A. Roper and Andrew l. Dayes of Roper & Roper
PA.
OneBeacon is represented by J, Charles lngram of Estes, lngram, Foels & Gibbs PA and by
Thomas J. Judge and Unam Peter Oh of Loss, Judge & Ward LLP.
The case is Public Risk Management of Florida v, One Beacon lnsurance Co., case
number 6:13-cv-01067, in the United States District Court for the Middle District of Florida,
Orlando Division.
--Additional reporting by Andrew Scurria. Editing by Chris Yates,
From: Don Roper
Imailto:donrooer@rooerandroper.com]
Sent Tuesday, September 9,20t4 11:39 AM
To: Drew Dayes
Subject: Fwd: One Beacon, Fla Insurer Settle Insurance Fight Over
Even if we have to register for this periodical, please get a copy of this article and send it to me.
Sent from my iPhone
Begin forwarded message:
From : David McAfee
<david.mcafee@l
aw3 60. com>
Date: September 8,2014,7:39:12 PM EDT
To: Don Roper
<donroper@roerand
Subject: Re: F'W: One Beacon, Fla Insurer Settle Insurance Fight Over
Hi Don, thank you for the info. Here's the link to the
story: lrttp://www.law360.com/articlesl574161lone-beacon-fla-insurer-settle-
construction-contractor-row
On Mon, Sep 8, 2014 at 1:14 PM, Don Roper
<donroer@roperandr
wrote:
Mr. McAfee,
Can you send me a copy of your article published tast triday? The total settlement was
for the sum of
$400,000,
which included principal of
just
under $287,000,
as well as
prejudgment interest, all of our attorneys fees, court costs etc., following the successful
appeal by my client, PRM with the Federal llth Circuit Court of Appeals in Atlanta.
3