Florida Appellate Court Finds that an Additional Insured is Entitled to the Appointment of Separate and Independent Defense Counsel - University of Miami v. Great American Assurance Company, et al. No. 3D09-2010 – Third District Court of Appeal – State of Florida

On February 20, 2013, in a matter of first impression in the state of Florida, the Third District Court of Appeal ruled 2-1 that an additional insured was entitled to the appointment of separate and independent defense counsel in a liability matter involving multiple insureds with “conflicting legal positions.” The majority opinion, written by Judge Suarez with Chief Judge Wells concurring, determined that the retention of separate defense counsel was necessary, simply because: 1) the complaint alleged each insured was independently negligent; and 2) each insured sought contribution and indemnification from the other. Judge Suarez found that these allegations were enough to create a “legal dilemma” for defense counsel in advancing the defense interests of one insured to the potential detriment of the other. In an 11-page dissent, however, Judge Shepherd expressly rejected the majority’s holding, characterizing the insureds’ mutual defense interests as nothing more than a “paper conflict” that fails to justify the retention of separate counsel.

The underlying liability matter involved a personal injury lawsuit commenced by the parents of a four-year-old child who suffered extensive injuries after being pulled unresponsive from a pool on the campus of the University of Miami (UM). The child was enrolled as a camper at MagiCamp, which ran a summer swim camp on the campus of UM. Both UM and MagiCamp were named defendants in the child’s lawsuit, which advanced allegations of negligent supervision against both UM and MagiCamp, as well as vicarious liability against UM for the negligence of MagiCamp.