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Roberts v. Florida Lawyers Mutual Insurance Co.3/5/2003
The issue in this case is whether a dispute between former partners in a law firm over how to divide fees and costs triggers coverage and a duty to defend under the law firm's lawyer's professional liability policy.
The trial court concluded that there was neither a duty to defend nor coverage under the policy in an order granting appellee, Florida Lawyers Mutual Insurance Company's ("Florida Lawyers"), motion to dismiss with prejudice for failure to state a cause of action. The Roberts Law Firm and Gary Roberts appeal. We affirm.
This appeal arises out of a separate action brought by Roberts's former law partner, Cindy Sojka. The Sojka lawsuit stemmed from the breakup of two personal injury law firms, Roberts & Sojka, P.A., and Roberts, Sojka & Associates. The partners settled the "Witt" case and received $150,000.00 in advanced costs and expenses and $191,000.00 in legal fees. After the case was settled, but before the money was disbursed, Roberts terminated Sojka's employment with the firm. She received no reimbursement for money she had loaned the firm and no part of the fee received.
Sojka filed suit against the two law firms and Roberts individually. The third amended complaint contained a derivative claim; Sojka sued Roberts on behalf of the Roberts/Sojka law firms claiming that Roberts had breached his fiduciary duty to the firms in his handling of the firm's money. The pleading also contained counts for unjust enrichment, spoliation of evidence, and constructive trust.
Roberts and his new law firm notified Florida Lawyers of the Sojka lawsuit and requested that the company provide them with a defense under a lawyers professional liability policy. Florida Lawyers refused to provide a defense and declined coverage under the policy.
After a jury trial, the Sojka suit culminated with a final judgment on the derivative claim. Sojka, on behalf of Roberts & Sojka, P.A. recovered from Roberts a total of $302,106.26 in damages and $313,315.98 in attorney's fees. Appellants' cost to defend the Sojka action exceeded $270,000.
Appellants then filed this action against Florida Lawyers for breach of contract resulting from the company's failure to defend and to indemnify. The trial court dismissed the complaint for failure to state a cause of action.
The policy provided coverage for " ny act, error or omission in Professional Services provided or that should have been provided." The policy defined professional services as:
services performed by an Insured lawyer: (a) in a lawyer-client relationship on behalf of one or more clients; (b) as a notary public; (c) as an administrator, conservator, receiver, executor, guardian, trustee, or any other similar fiduciary capacity; (d) as an arbitrator, mediator, referee, special master, hearing officer, or other participant in a dispute resolution process; (e) as a title agent.
"Professional Services" does not mean or include any matter pertaining to an insured lawyer's charges for services or expenses.
An exclusion in the policy stated that the insurance did not apply to:
5. Any Claim made against an Insured by a present, former or prospective partner, officer, director, stockholder or employee unless the Claim arises out of legal services' performed in a lawyer-client relationship.
The construction of an insurance policy to identify the scope of coverage is a question of law subject to de novo review on appeal. See Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985); Siegle v. Progressive Consumers Ins. Co., 788 So. 2d 355, 357 (Fla. 4th DCA 2001). The scope and extent of insurance coverag
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