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Travelers Indemnity Co. v. PCR Incorporated12/9/2004
commission of the act necessarily causes the harm. There is no element of chance involved: one could not commit the act without causing the harm.) The same cannot be said of conduct giving rise to a Turner claim. Indeed, in Turner we emphasized that the substantial-certainty standard should not be interpreted to require a showing of virtual certainty. 754 So. 2d at 687 n.4. We noted that the substantial-certainty standard "require a showing greater than 'gross negligence,'" but we suggested a similarity between a culpable-negligence standard and the substantial-certainty standard. 754 So. 2d at 687-88 n.4. (noting that one was "not unlike" the other). It is true, as Travelers notes, that the substantial-certainty standard of Turner requires a greater level of foreseeability than the natural and probable consequences standard at issue in Cloud and Helton. But the difference here is quantitative; on the other hand, there is a qualitative difference between these foreseeability standards and the inherency standard of Landis.
B. Public Policy
The next issue we must address is whether public policy prohibits an employer from insuring against the risk of liability arising under Turner's objectively-substantially-certain standard. In Ranger Insurance Co. v. Bal Harbour Club, Inc., 549 So. 2d 1005 (Fla. 1989), we articulated a two-factor test for determining "whether a particular policy of civil liability insurance is opposed to public policy."
Id. at 1007. The first factor looks to whether the type of conduct for which liability is imposed would be "encouraged" if one could insure against the risk of liability arising from such conduct. Id. In other words, we ask "whether the existence of insurance will directly stimulate commission of the wrongful act." Id. The second factor looks to whether the purpose served by the imposition of liability for certain conduct is "to deter wrongdoers or compensate victims." Id.
Applying this two-factor test, we conclude that public policy does not prohibit an employer from insuring against the risk of liability arising under Turner's objectively-substantially-certain standard. With respect to the first factor, it is instructive to compare the type of conduct at issue in Bal Harbour with the type of conduct that will subject an employer to tort liability under Turner. The question in Bal Harbour was whether public policy prohibited insurance coverage for liability arising from intentional religious discrimination. We rejected "the supposition that making intentional religious discrimination insurable w[ould] not encourage such discrimination." 549 So. 2d at 1008. The analysis would apply equally to a claim brought under the deliberate-intent prong of the intentional-tort exception. Both types of claims squarely implicate the rule that "one should not be able to insure against one's own intentional misconduct." Id. at 1007 (citing 12 John Alan Appleman & Jean Appleman, Insurance Law and Practice, ยง 7031 (1981)). Where liability is not predicated on intent, however, the rule is not implicated. See, e.g., Bal Harbour Club, 549 So. 2d at 1006 (distinguishing between claims of intentional [or disparate treatment] discrimination and claims of unintentional [or disparate impact] discrimination and concluding that the latter "is clearly a legitimate business risk and as such is insurable"); see also Harasyn v. Normandy Metals, Inc., 551 N.E. 2d 962, 964-65 (Ohio 1990) (distinguishing between claims brought under the direct-intent prong of Ohio's intentional-tort exception and claims brought under the substantial-certainty prong and concluding that in the case of substantial-certainty torts "the presence of insurance has less effect on the tortfeas
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