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Allstate Insurance Co. v. Ginsberg9/18/2003
e," which under the wording of the Allstate policy includes "a continuous exposure to conditions." The policy further provides that an "occurrence" can include a "personal injury," a category comprised of a number of possible harms, including mental anguish and injury, humiliation, and discrimination. These are precisely the types of harms alleged in Scarfo's complaint. Thus, from the perspective of a pure coverage analysis, without reference to exclusionary provisions, the matters alleged fall within the definition of "coverage."
Once it is established that the alleged events fall under the coverage definition, the focus must shift to whether any of the policy's exclusionary provisions would ultimately preclude indemnity. As indicated by the third and fourth questions certified by the Eleventh Circuit, the instant factual scenario may implicate two exclusions in Ginsberg's personal liability policy-the business and intentional acts exclusions. However, a reviewing court cannot summarily determine whether these exclusions do, in fact, apply. To the contrary, especially with regard to the intentional acts exclusion, such a decision requires a substantial fact-based analysis most properly conducted at the trial court level. Yet, as a result of the majority's truncated analysis of the scope of coverage in the instant case, the Eleventh Circuit will not have the information pertaining to Florida law it needs to meaningfully review the district court's grant of summary judgment in favor of Allstate, and to decide whether the action should proceed to trial.
Clearly, the parameters of "personal injury " covered by the policy include more than the tort of invasion of privacy which the majority has deemed-correctly in my opinion-inapplicable to the instant case. However, a fair reading of the allegations in the complaint inescapably leads to the conclusion that the matters fall under the policy's coverage definitions. By ending the analysis without addressing alternative existing bases within the coverage definitional parameters, the majority's decision unnecessarily obfuscates the coverage analysis in the instant case and jeopardizes the continued viability of established principles of policy interpretation in this state. For these reasons, I dissent.
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