IN THE DISTRICT COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

IN THE DISTRICT COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation, authorized to do business in Florida, Appellant, v. CASE NO. SC04-351 GREGG A. TIPPETT, MICHAEL J. HUMMEL and AGATA JANUSZCZAK, Appellees. / PETITIONERS, GREGG A. TIPPETT AND MICHAEL J. HUMMEL s JURISDICTIONAL BRIEF On Review from the District Court of Appeal, Fourth District State of Florida Case No. 4D 02-3783 WIEDERHOLD & MOSES, P.A. Attorneys for Petitioners, Tippett and Hummel 560 Village Boulevard, Suite 240 (33409) P. O. Box 3918 West Palm Beach, Florida 33402

(561) 615-6775 (561) 615-7225/fax TABLE OF CONTENTS Page(s) TABLE OF CITATIONS... i INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 2 JURISDICTIONAL STATEMENT... 4 QUESTION PRESENTED... 4 STANDARD OF REVIEW... 4 SUMMARY OF ARGUMENT... 4 ARGUMENT... 5 POINT I... 5 THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF ANOTHER DISTRICT COURT OF APPEAL, NAMELY HERRERA V. C. A. SEGUROS CATATUMBO, 844 So. 2d 664 (Fla. 3 rd DCA 2003) AND SUPREME COURT OF FLORIDA S DECISION IN STATE FARM FIRE & CAS. CO. V. CTC DEV. CORP., 720 So.2d 1072 (Fla. 1998). CONCLUSION... 10 CERTIFICATE OF SERVICE... 11

CERTIFICATE OF COMPLIANCE... 12

TABLE OF CITATIONS Page(s) Herrera v. C. A. Seguros Catatumbo... 4,5,6, 9 844 So. 2d 664 (Fla. 3 rd DCA). State Farm Fires & Cas. Co. v. CTC Dev. Corp.... 4,5,8, 9 720 So.2d 1072 (Fla. 1998) OTHER AUTHORITIES Art. 5, Sec. 3(b)(3) Fla. Const. (1998);... 4 Fla. R. App. P. 9.0030(a)(2)(A)(iv)

i INTRODUCTION This is a Petition for discretionary review of a decision of The Fourth District Court of Appeal reversing the final judgment in favor of GREGG A. TIPPETT, MICHAEL J. HUMMEL, and AGATA JANUSZCZAK and against STATE FARM FIRE & CASUALTY COMPANY. The Petitioners will be referred to as GREGG A. TIPPETT (hereinafter TIPPETT ), MICHAEL J. HUMMEL (hereinafter HUMMEL), and AGATA JANUSZCZAK (hereinafter JANUSZCZAK ). STATE FARM FIRE & CASUALTY INSURANCE COMPANY will be referred to as STATE FARM. All references to the Petitioners appendix will be referred to as A. p. followed by the appropriate page number. 1

STATEMENT OF THE CASE AND FACTS The Petitioners, TIPPETT and HUMMEL, were the prevailing parties in a Declaratory Judgment action in which STATE FARM sought a determination of coverage and a duty to defend under separate policies of insurance issued to TIPPETT and HUMMEL. A final judgment was entered in favor of TIPPETT and HUMMEL based on a jury verdict which found that neither TIPPETT nor HUMMEL expected or intended the harm allegedly sustained by JANUSZCZAK. Additionally, the jury verdict found that JANUSZCZAK s alleged injuries did not result from willful or malicious acts of either TIPPETT or HUMMEL. STATE FARM s Declaratory Judgment action was brought as a result of JANUSZCZAK s Fifth Amended Complaint, which contained allegations against TIPPETT and HUMMEL for negligence and battery. STATE FARM moved for summary judgment on both the duty to defend and coverage based on the allegations in the Fifth Amended Complaint filed in the underlying tort action. After STATE FARM filed its Motion for Summary Judgment in the Declaratory Judgment action, JANUSZCZAK filed her Sixth Amended Complaint in the underlying tort action. The trial court denied STATE FARM s Motion for Summary Judgment which was based on the Fifth Amended Complaint in the underlying action. At no time did STATE FARM file a Motion for Summary Judgment in 2

the Declaratory Judgment action based on the Sixth Amended Complaint in the underlying tort action. STATE FARM s Declaratory Judgment action was tried on the Sixth Amended Complaint in the underlying tort action. STATE FARM failed to move for a directed verdict at anytime during the trial. TIPPETT and HUMMEL both moved for a directed verdict on the issue of STATE FARM s duty to defend. The trial court found that there was a duty to defend both TIPPETT and HUMMEL based on the allegations contained within the four corners of the Sixth Amended Complaint. The jury in the Declaratory Judgment action answered the special verdict interrogatories favorable to TIPPETT and HUMMEL. Based on the special verdict interrogatory answers and the directed verdict, the court entered judgment in favor of TIPPETT and HUMMEL on STATE FARM s duty to defend and coverage. STATE FARM appealed the judgment to The Fourth District Court of Appeal. The Fourth District Court of Appeal reversed the trial court s entry of final judgment for TIPPETT and HUMMEL and remanded to the trial court for entry of summary final judgment in favor of STATE FARM, even though STATE FARM never filed a motion for summary judgment directed to the Sixth Amended Complaint. TIPPETT and HUMMEL filed a Motion for Rehearing, which was denied on February 9, 2004. TIPPETT and HUMMEL s Notice to Invoke the Discretionary 3

Jurisdiction of this court was timely filed on March 8, 2004. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal on the same point of law. Art. 5, Sec. 3(b)(3) Fla. Const. (1998); Fla. R. App. P. 9.0030(a)(2)(A)(iv). QUESTION PRESENTED WHETHER THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL DECIDED ON NOVEMBER 19, 2003 CONFLICTS WITH STATE FARM FIRE & CAS. CO. V. CTC DEV. CORP., 720 So.2d 1072 (Fla. 1998) AND HERRERA V. C. A. SEGUROS CATATUMBO, 844 So. 2d 664 (Fla. 3 rd DCA). STANDARD OF REVIEW The applicable standard of review is a de novo review. SUMMARY OF THE ARGUMENT The Fourth District Court of Appeal either overlooked or misapprehended the allegations in JANUSZCZAK s Sixth Amended Complaint that TIPPETT and HUMMEL neither expected nor intended to cause harm to JANUSZCZAK, and as well, the jury s answers to special verdict interrogatories that indicated that TIPPETT and HUMMEL did not expect nor intend to cause harm to 4

JANUSZCZAK, nor did JANUSZCZAK s alleged injuries result from willful or malicious acts of either TIPPETT or HUMMEL. The decision of the District Court cannot be reconciled with The Supreme Court of Florida s decision in State Farm Fire & Casualty & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072 (Fla. 1998) in which this court stated: We hold that where the term accident in a liability policy is not defined, the term, being susceptible to varying interpretations, encompasses not only accidental events but also injuries or damage neither expected nor intended from the standpoint of the insured. This definition comports with the language used in standard comprehensive general liability policies and with the definition of the term accidental set forth in Dimmitt as unexpected or unintended. 636 So. 2d at 704. The decision of the District Court also cannot be reconciled with the previous decision of The Third District Court of Appeal in Herrera v. C. A. Seguros Catatumbo, 844 So. 2d 664 (Fla. 3 rd DCA 2003) wherein the Court held that an intentional strip/cavity search was a covered accident under the terms of the policy. ARGUMENT POINT I THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF ANOTHER DISTRICT COURT OF APPEAL, NAMELY HERRERA V. C. A. SEGUROS CATATUMBO, 844 So. 2d 664 (Fla. 3 rd DCA 2003) AND SUPREME COURT OF FLORIDA S DECISION IN 5

STATE FARM FIRE & CAS. CO. V. CTC DEV. CORP., 720 So.2d 1072 (Fla. 1998). The Fourth District Court of Appeal s Opinion concluded that it is unreasonable and illogical that TIPPETT and HUMMEL neither expected nor intended harm to JANUSZCZAK even though it was alleged, in part, in JANUSZCZAK s Complaint, that TIPPETT and HUMMEL did not know that JANUSZCZAK was incapacitated. The Fourth District Court of Appeal s Opinion acknowledged that where the term accident is not defined in the policy, the term encompasses not only accidental events but also injuries or damages neither expected nor intended from the standpoint of the insured. Accordingly, the decision of the District Court cannot be reconciled with The Third District Court of Appeal s decision in Herrera v. C. A. Seguros Catatumbo, 844 So. 2d 664 (Fla. 3 rd DCA 2003), that concluded that a strip/cavity search was an accident under the insurance policy in question. The Herrera case stems from a verbal altercation between the Plaintiffs and the employees of an airline. The Plaintiffs were removed from the insured airplane and subjected to a body cavity search. Id at 665. In the underlying action, the Herreras sought recovery under three causes of action: (1) intentional infliction of emotional distress; (2) negligence; and (3) false imprisonment. The insurer took the position that malice is inherent in all three causes 6

of action. The Third District Court of Appeal disagreed and concluded that malicious behavior was not implicit in all three cause of action. The court also concluded that malice was not implicit in the punitive damage award to the Herreras. The court noted that the Florida Standard Jury Instruction on punitive damages was given in the case. The instruction authorizes a punitive damage award where the defendant is guilty of either intentional misconduct or gross negligence. Therefore, malice did not have to be alleged or demonstrated to obtain a punitive damage award. The court further noted that neither the negligence claim, nor any damage award stemming from it, were excluded from coverage by the policy s Malicious Acts provision. Id at 668. In this case, JANUSZCZAK alleged that TIPPETT and HUMMEL were under the belief that their actions were with her permission and consent and that neither TIPPETT nor HUMMEL expected nor intended that their participation in the activities would result in harm, bodily injury or damage to her. (A. p. 3) Based on these allegations contained in the Sixth Amended Complaint, the trial court directed a verdict in favor of TIPPETT and HUMMEL on the duty to defend. The Fourth District Court of Appeal acknowledged that the term accident was not defined in State Farm s policy. The court also acknowledged that the Florida Supreme Court has held that the term accidental as used in an insurance policy means unexpected nor unintended. The Fourth District of Appeal also noted 7

that The Supreme Court has further held that the term accident when not defined in a liability policy encompasses not only accidental events but also injuries or damages neither expected nor intended from the standpoint of the insured. State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072 (Fla. 1998)(emphasis added). (A. p. 4) However, The Fourth District either overlooked or misapprehended the allegations in the Sixth Amended Complaint and the findings of the jury that neither TIPPET nor HUMMEL expected or intended to cause harm nor were their actions wilful and malicious. The Fourth District simply rejected JANUSZCZAK s allegation that TIPPETT and HUMMEL neither expected nor intended to cause harm to JANUSZCZAK, and that TIPPETT and HUMMEL were under the belief that they had permission and consent of JANUSZCZAK to participate in what they perceived as consensual sex. Even with these allegations and the jury s finding, The Fourth District concluded that the sexual actions of TIPPETT and HUMMEL (even though they were under the belief that JANUSZCZAK had consented) were so inherently harmful that harm would inevitably follow. (A. p. 5) The Fourth District s holding cannot be reconciled with State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla. 1998) in which this court stated: We hold that where the term accident in a liability policy 8

is not defined, the term, being susceptible to varying interpretations, encompasses not only accidental events but also injuries or damage neither expected nor intended from the standpoint of the insured. This definition comports with the language used in standard comprehensive general liability policies and with the definition of the term accidental set forth in Dimmitt as unexpected or unintended. 636 So. 2d at 704. Additionally, The Fourth District s opinion cannot be reconciled with The Third District s decision in Herrera in which that Court concluded that an intentional strip/cavity search is not inherently malicious and was deemed an accident. If an intentional strip/cavity search is not inherently malicious and, is in fact, an accident then certainly an insured who believes that he is participating in consensual sex is not committing an act so inherently dangerous as to preclude coverage especially in light of the allegations in the Sixth Amended Complaint that the insured neither expected nor intended harm and the jury s finding that the insured did not expect nor intend to cause harm to JANUSZCZAK. The decision of The Fourth District Court of Appeal in this case expressly and directly conflicts with The Third District Court of Appeal s decision, Herrera v. C. A. Seguros Catatumbo, 844 So. 2d 664 (Fla. 3 rd DCA 2003) and The Supreme Court of Florida s decision in State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072 (Fla. 1998) and jurisdiction is proper under Fla. R. App. P. 9

9.030(a)(2)(A)(IV). CONCLUSION For the foregoing reasons, Petitioners, GREGG A. TIPPETT and MICHAEL J. HUMMEL, respectfully request that this Court accept jurisdiction to review this case. 10

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished by regular U. S. mail to KARA BERARD ROCKENBACH, ESQUIRE, 1401 Forum Way, Suite 500, West Palm Beach, Florida 33401; GORDON R. LEECH, ESQUIRE, 560 Village Boulevard, Suite 240, West Palm Beach, Florida 33409; L. DONALD MURRELL, ESQUIRE, 400 Executive Center Drive, Suite 201, West Palm Beach, Florida 33409 and to PETER G. HERMAN, ESQUIRE, 110 S. E. 6 th Street, 15 th floor, Ft. Lauderdale, Florida 33401 this day of March, 2004. WIEDERHOLD & MOSES, P.A. 560 Village Boulevard, Suite 240 (33409) P. O. Box 3918 West Palm Beach, Florida 33402 (561) 615-6775 (561) 615-7225/fax BY John P. Wiederhold Fla. Bar No. 125670 Gordon R. Leech Fla. Bar No. 008923 DONNIE MURRELL, ESQUIRE Fla. Bar No. 326641 400 Executive Center Drive, Suite 201 West Palm Beach, Florida 33409 (561) 686-2700 11

CERTIFICATE OF COMPLIANCE WITH RULE 9.210(a)(2), Fla. R. App. P. The undersigned certified that this brief is formatted in 14 Times New Roman size style in compliance with Rule 9.210(a)(2), Fla. R. App. P. WIEDERHOLD & MOSES, P. A. 560 Village Boulevard, Suite 240 (33409) P. O. Box 3918 West Palm Beach, Florida 33402 (561) 615-6775 (561) 615-7225/fax By John P. Wiederhold Fla. Bar No. 125670 Gordon R. Leech Fla. Bar No. 008923 DONNIE MURRELL, ESQUIRE Fla. Bar No. 326641 400 Executive Center Drive, Suite 201 West Palm Beach, Florida 33409 (561) 686-2700 12