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Roberts v. Florida Lawyers Mutual Insurance Co.3/5/2003
he case without his consent and that he would share any attorney's fees ultimately awarded. After the case was settled, the lawyer sued the law firm; two counts for breach of contract alleged that the law firm "had breached its agreement with [the lawyer] by failing to obtain his consent to the proposed settlement . . . and by refusing to share with him the attorneys' fees that it had received" in the case. Id. at 895. The circuit court found that the "heart" of the lawyer's obligations was that the law firm breached its contract with him. Id. at 896. The court held that this claim fell within the coverage language of the policy that damages arise from "the performance of professional services for others in the insured's capacity as a lawyer"; the lawyer was an "other" under the policy for whom professional services had been performed. Id. The court also held that the settlement of the client's case was the performance of "professional services" services under the policy. Id.
Unlike the lawyer in Continental Casualty, Sojka was not a consumer of her law firm's services. She did not negotiate a contract with the firm as the agent of a client. There was no allegation in Sojka's third amended complaint that Roberts had improperly settled the "Witt" case. The conduct ascribed to Roberts in Sojka's lawsuit is the type of conduct that Continental Casualty describes as not involving the performance of professional services - "the relationship between a law firm and its employees." Id. at 896.
In Lyons v. American Home Assurance Co., 354 N.W.2d 892 (Minn. App. 1985), a law firm sued a former partner contending that he had improperly settled a case by taking too low a fee from the client. The Minnesota court held that this lawsuit was covered under a professional liability policy providing coverage for claims "arising out of any act or omission of the insured in rendering . . . professional services for others in the insured's capacity as a lawyer." Id. at 894. The court found it significant that the case "arose not over allocation of fees among partners" but over the amount the lawyer "had charged for his services in representing his client." Id. at 895. Lyons is therefore unlike this case, where the dispute concerned the division of fees. Also, there is no indication that the policy applied in Lyons defined "professional services" as did the policy in this case.
Because the third amended complaint did not allege facts that created potential coverage under the policy, Florida Lawyers had no duty to defend appellants under the policy. See, e.g., State Farm Fire & Cas. Co. v. Higgins, 788 So. 2d 992, 995 (Fla. 4th DCA 2001).
AFFIRMED.
MAY, J., and DAMOORGIAN, DORIAN, Associate Judge, concur.
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