Summary
noting the phrase "arising out of" is not prime facie ambiguous due to Westmoreland
Summary of this case from Continental Casualty Company v. City of JacksonvilleOpinion
No. 98-3435.
Opinion filed August 25, 1999.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; J. Leonard Fleet, Judge; L.T. Case No. 97-12064 08.
Lawrence S. Ben of Chikovsky, Ben Schafer, Hollywood, for appellants.
Gregory S. Glasser of Stephens, Lynn, Klein McNicholas, P.A., Miami, and Richard A. Simpson and Thomas J. Judge of Ross, Dixon Bell, L.L.P., Washington, D.C., for appellees.
Appellants were the plaintiffs in a legal malpractice claim brought against a lawyer named Joseph Oldani and the Joseph Oldani, P.A. The claim alleged that Oldani had misappropriated money from an estate and that the P.A. had been negligent in hiring and retaining Oldani.
Oldani pled guilty to first degree grand theft for the conduct on which this action is based, and the trial court granted his insurer, the appellee, a summary judgment because the policy did not provide coverage for "any claims arising out of. . . any dishonest, fraudulent, criminal or malicious act or omission" by the insured.
Plaintiffs do not complain about the judgment in regard to Oldani individually, but argue that the court erred in entering judgment in favor of the P.A. They argue that the words "arising out of" in the exclusion are ambiguous and should be construed against the insurer, citing Westmoreland v. Lumbermens Mutual Casualty Co., 704 So.2d 176 (Fla. 4th DCA 1997). This case is distinguishable from Westmoreland because in Westmoreland the ambiguity arose out of more than the words "arising out of." In the present case there is no ambiguity created by the words following "arising out of" and, if there is no coverage for Oldani because of this exclusion, which plaintiffs apparently concede, it follows that there is no coverage for the P.A. either.
Affirmed.
TAYLOR, J., and WHITE, ALICE BLACKWELL, Associate Judge, concur.