Co-Managing Partner of Peckar and Abramson’s Miami Office, Adam P. Handfinger, argued yesterday before the Florida Supreme Court representing Altman Contractors Inc., in a dispute over whether an insurer is obliged to cover costs incurred by a contractor in the pre-suit process governed by Chapter 558, Florida Statutes.

The following is a summary from the story that ran today in Law360, titled “Fla. Contractor, Insurer Spar Over Pre-Suit Claims”.

The insurer, Crum & Forster Specialty Insurance Co., may have painted itself into a corner over the timing of its duty to defend. Attorneys debated a question sent to the state’s highest court by the Eleventh Circuit, to which Altman had appealed, asking whether the notice and repair process set forth in Chapter 558 of the Florida Statutes should be considered a “suit,” and as such, indemnified under several general commercial liability policies covering Altman’s work as a general contractor on a luxury high-rise condominium.

Justices questioned Handfinger if the Chapter 558 process fits various definitions of a “suit” or “civil procedure” and whether it was actually mandatory, as Altman and amici from the construction and development industry contended during the hearing. The arguments seemed to take a significant turn when opposing counsel representing Crum & Forster suggested that the insurance policy defines “suit” in one portion as “any other alternative dispute resolution proceeding … to which the insured submits without consent.” According to this definition, the company’s duty to defend kicks in when it decides to enter the dispute.

“So you think the consent language does not go to their engaging in the alternative dispute resolution process but rather goes to the consent of your own company in whether you’re going to engage in the defense or not?” Justice Ricky Polston asked. “I guess I’m still having trouble with the insurer driving the bus for 558,” Justice Barbara J. Pariente followed. That seems like the insurer is really only looking out for their own interest and not for the insured,” Justice Pariente said. “It doesn’t seem right, the idea that coverage would entirely turn on what point an insurer decides that they’re going to jump into the process.”

Handfinger also argued that if there are multiple reasonable interpretations to the policy language, the court is bound to construe it liberally in favor of coverage.