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Allstate Insurance Co. v. Ginsberg9/18/2003
We have for consideration several issues of Florida law certified by the Eleventh Circuit Court of Appeals that are asserted to be determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, ยง 3(b)(6), Fla. Const.
This case involves a declaratory decree action, which is proceeding in the federal court. The underlying tort action is proceeding in the state courts of Florida. In Allstate Co. v. Ginsberg, 235 F.3d 1331, 1333 (11th Cir. 2000), the Eleventh Circuit reviewed a summary judgment holding that appellants Allstate Insurance Company and Allstate Indemnity Company (Allstate) had no duty to defend a state court complaint against its insured, appellee Victor Ginsberg, for invasion of privacy because the complaint failed to state a privacy claim. In its opinion, the Eleventh Circuit summarized the litigation history of this case:
From November 1991 until September 1992, Elaine A. Scarfo was employed as a secretary for various Florida corporations owned by Victor Ginsberg. Prior to that time, from approximately November 1987 until November 1991, Scarfo worked for her husband without pay at Ginsberg's corporation. On September 18, 1992, Scarfo was terminated. In 1993, Scarfo filed a federal civil rights action against Ginsberg in the United States District Court for the Southern District of Florida, alleging that from approximately 1988 and throughout her employment, Ginsberg subjected her to unwelcome offensive conduct, including physical touching and comments of a sexual nature. In addition, Scarfo's complaint included common law tort claims for battery, intentional infliction of emotional distress, and invasion of privacy.
During the time of the actions alleged by Scarfo, Ginsberg was covered under a Personal Umbrella Policy issued by Allstate, which applies to an "occurrence" anywhere in the world while the insurance is in force. In 1995, Ginsberg tendered the defense of the action to Allstate, demanding that Allstate indemnify him for any potential liability.
Allstate, in providing a defense to the actions under a reservation of rights, filed a declaratory judgment action seeking a determination whether Allstate's policies cover the claims alleged by Scarfo against Ginsberg. In 1997, the district court dismissed Scarfo's federal civil rights action on jurisdictional grounds, and dismissed Scarfo's state law claims without prejudice. The Eleventh Circuit affirmed the dismissal in Scarfo v. Ginsberg, 175 F.3d 957 (11th Cir. 1999). Scarfo re-filed her claims against Ginsberg in the state court as common law torts.
The Personal Umbrella Policy in this case provides as follows:
Coverage-When we Pay Allstate will pay when an insured becomes legally obligated to pay for personal injury or property damage caused by an occurrence.
The policy defines "Personal Injury " as follows:
(a) bodily injury , sickness, disease or death of any person. Bodily injury includes disability, shock, mental anguish and mental injury.
(b) false arrest; false imprisonment; wrongful detention; wrongful entry; invasion of rights; invasion of occupancy; or malicious prosecution;
(c) libel, slander, misrepresentation; humiliation; defamation of character; invasion of rights of privacy; and
(d) discrimination and violation of civil rights, where recovery is permitted by law. Fines and penalties imposed by law are not included.
(Emphasis added.)
The parties filed cross motions for summary judgment, raising the question whether Scarfo properly alleged an invasion of privacy, thereby trigger
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