US Fire Ins. Co. v. Fleekop

682 So. 2d 620
CourtDistrict Court of Appeal of Florida
DecidedOctober 30, 1996
Docket95-1480, 95-1726
StatusPublished
Cited by8 cases

This text of 682 So. 2d 620 (US Fire Ins. Co. v. Fleekop) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
US Fire Ins. Co. v. Fleekop, 682 So. 2d 620 (Fla. Ct. App. 1996).

Opinion

682 So.2d 620 (1996)

UNITED STATES FIRE INSURANCE CO., Appellant,
v.
Norman FLEEKOP, Rhonda Fleekop, Jay W. Weiss, Elliott Dinnerstein, Morton Levin, and Richard Myers, Appellees.

Nos. 95-1480, 95-1726.

District Court of Appeal of Florida, Third District.

October 30, 1996.

*621 Stephens, Lynn, Klein & McNicholas, P.A. and Gary Khutorsky and Philip D. Parrish, Miami, for appellant.

Andrew Hall & Associates, P.A. and Andrew C. Hall and Christopher J. Dawes, Miami, for appellees Norman Fleekop, Rhonda Fleekop, Jay W. Weiss, and Elliott Dinnerstein.

Semet, Lickstein, Morgenstern, Berger, Friend, Brooke & Gordon, P.A. and Paul S. Berger and David Friedman, for appellees Morton Levin and Richard Myers.

Before JORGENSON, GODERICH and GREEN, JJ.

GREEN, Judge.

At issue in the declaratory action below was the construction of an excess professional liability policy issued by appellant United States Fire Insurance Company ("U.S. Fire") to the accounting firm of Sadoff, Rothchild, Levin & Meyers, P.A. ("P.A."). U.S. Fire appeals adverse summary judgments finding it obligated to defend the P.A. for claims filed by appellees, Norman and Rhonda Fleekop, Jay Weiss, and Elliott Dinnerstein, all of *622 whom are former clients of the P.A.[1] and to provide coverage if such claims are ultimately successful. Specifically, the court below found that: (1) there was excess coverage for notice of potential claims given during the "tail" period of the policy; and (2) the notice given to U.S. Fire by the P.A. was sufficient to trigger the coverage. We affirm.

I

During the relevant time period, the P.A. performed professional accounting services throughout South Florida. As part of its practice, the P.A. promoted to the Fleekops, Weiss, Dinnerstein and other clients a series of purported tax shelters established by Investex, Inc., a Florida land sales business. The P.A., through partner Milton Sadoff, advised its clients for tax reasons to join partnerships which were then in the business of purchasing land from Investex. Investex's scheme of installment land sales on commission caused the participating partnerships to incur annual losses and expenses which could, in turn, be used as tax deductions by the investing clients.

In 1984, however, these Investex partnerships came under scrutiny and investigation by the Internal Revenue Service. This investigation culminated in a 1989 decision of the United States Tax Court[2] which upheld the I.R.S.'s disallowance of the deductions claimed by the partnerships. The I.R.S.'s disallowance of these deductions resulted in substantial tax penalties and payments for the P.A.'s clients. Some of the P.A.'s clients took legal action against the P.A. for professional malpractice.[3]

The P.A.'s primary professional liability policy was for $5 million and was issued through North River Insurance Company ("North River"). The policy provided a "claims-made" type coverage. "Claims-made" policies, as opposed to "occurrence" policies, trigger coverage "if the negligent or omitted act is discovered and brought to the attention of the insurer within the policy term." Gulf Ins. Co. v. Dolan, Fertig & Curtis, 433 So.2d 512, 514 (Fla.1983) (quoting 7A Appleman, Insurance Law & Practice § 4504.01 at 312 (Berdal ed. 1979)); see also Ranger Ins. Co. v. United States Fire Ins. Co., 350 So.2d 570, 572-73 (Fla. 3d DCA 1977) (outlining the distinction between types of policies). "Occurrence" policies, on the other hand, trigger the carrier's liability if the error or omission occurs during the period of policy coverage, "regardless of the date of discovery or the date the claim is made or asserted." Gulf Ins. Co., 433 So.2d at 514.

The P.A. also purchased $10 million worth of "excess" or additional errors and omissions coverage from U.S. Fire. This was an excess "following form" policy, meaning that U.S. Fire was bound by the terms of the underlying policy with North River. U.S. Fire as the excess carrier was also bound by notice given to North River as primary carrier. Here, both carriers happened to use the same claims processing managers, Crum & Forster Managers, Inc. ("Crum & Forster").

Originally, the P.A.'s policies with North River and U.S. Fire were to run from August 31, 1984 until August 31, 1985.[4] The P.A., however, elected to extend its existing policy in favor of a "tail" or discovery policy pursuant to the following provision in the initial policy (emphasis ours):

*623 Excess Following Extended Reporting Period

In consideration of an additional premium of $2,500, the excess errors & omissions/professional liability endorsement... is extended to apply in accordance with Condition II of the underlying account's professional liability policy ... issued by the North River Ins. Co. for the extended reporting period of:

October 1, 1984 to October 1, 1990

* * * * * *

The relevant conditions of the policy at issue are as follows:

Conditions

I. Policy Period and Claims-Made Provisions

This policy applies to acts, errors or omissions in the Insured's performance of professional accounting services provided that the claim is first made during the policy period and written notice of said claim is received by the Company during the policy period.
If during the policy period, the Company shall receive written notice of an act, error or omission which could reasonably be expected to give rise to a claim against the Insured under this policy, any claim which subsequently arises out of such act, error or omission shall be considered a claim first made against the Insured during the policy year in which the written notice was received.

II. Extended Reporting Period

* * * * * *
(b) If the Named Insured cancels or elects not to renew this policy, the Named Insured shall have the right, upon a single payment of an additional premium of 50% of the last annual premium, to an extension of the coverage granted by this policy in respect to acts, errors or omissions in professional accounting services performed prior to the end of the policy period, provided that the claim is first made against the insured for said acts, errors, or omissions, during the period of six (6) years following the date of cancellation or nonrenewal and written notice of such claim is received by the Company during such period.

"Tail" or discovery period coverage essentially supplements a claims-made policy to give the insured added protection. See Arad v. Caduceus Self Ins. Fund, Inc., 585 So.2d 1000, 1001 (Fla. 4th DCA 1991) ("[Tail coverage] protects [insureds] into the future for claims regarding incidents that occurred during the policy period but which were not presented until after the policy expired."); American Casualty Co. v. Rahn, 854 F.Supp. 492, 501 (W.D.Mich.1994) ("In effect, [tail coverage] provide[s] an extended period during which the insured may `discover' the existence of a claim based on the prior conduct."). The logic of such policies is that an act of malpractice might not be discovered until after the original policy period had terminated, at which time the insured would be completely vulnerable to suit. Tail coverage picks up where the claims-made policy leaves off, with respect to acts committed during the original policy period.

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Bluebook (online)
682 So. 2d 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-fire-ins-co-v-fleekop-fladistctapp-1996.