Palm Beach County accident, does the bad guy get a free attorney? Maybe depends the the insurance contract.

Does the insurance company have a duty to defend the insured when a plaintiff brings a cause of action against the insured?

Ultimately, this question boils downs to the language of the insurance policy so there may or may not be a duty to defend the insured. Under Florida law, the insurer is under a duty to defend when the complaint (document filed by plaintiff with court stating reason suit is being filed and asking for relief) states facts that are within the coverage of the contract. For instance, if the policy has language that excludes bodily injury or property damage from coverage if the insured acts are intentional; if the complaint only alleges that the insured intentionally drove their vehicle into a neighbor’s house causing damage, the insurer is under no duty to defend. Capoferri v. Allstate Insurance Co., 322 So.2d 625 (Fla. 3d DCA 1975). Also, if the insured case goes to trial, the insurer will typically pay the court costs, interest on any damages owed, and a certain amount for any lost wages or salary.
The duty to defend shouldn’t be confused with the duty to indemnify (to reimburse or compensate and make them whole). The assertions of the initial pleading are what determine the insurer’s duty. Florida courts have determined that nothing outside of the allegations or any later filings that establish the damages were not covered by policy should be considered in establishing the insurer’s duty. Kings Point West, Inc v. North River Insurance Co., 412 So.2d 379 (Fla. 2d DCA 1982).
However, Florida has also held that if the allegations by the plaintiff initially state facts that are within the coverage language of the policy but later is amended so the facts are not within the coverage language of the policy, the insurer will not have a duty to continue defending the plaintiff. Baron Oil Co. v. Nationwide Mutual Fire Insurance Co., 470 So.2d 815 (Fla. 1st DCA 1985). In my opinion, the best approach is to retain your own separate attorney from that of the insurer because there may be a conflict of interest. The insurer has an incentive to show that the insured has acted in a way that they should not be responsible to defend (I like to refer to this as “The Bottom Line” approach which means the insurance company will always focus on the bottom line of keeping “your” money).
So, what happens if the plaintiff’s allegations are only partially covered by the insurance policy? According to Florida, the insurer has a duty to defend the entire lawsuit if the plaintiff’s allegations are partially excluded from the coverage of the policy. Tropical Park Inc. v. United States Fidelity & Guaranty Co., 357 So.2d 253 (Fla. 3d DCA 1978). If the insurer refuses to defend an action that is within the coverage, there is a potential breach of contract action that could be brought against the insurer. Fidelity Fire Insurance Co. v. Johnson, 177 So.2d 679 (Fla. 1st DCA 1965). If the insurer denies coverage and does not defend on the insured’s behalf, the insured may make a reasonable settlement with the injured plaintiff. However, if the insurer disclaimer is deemed meritless, the insurer may be liable for the settlement amount, if the amount is reasonable. Florida Farm Bureau Mutual Insurance Co. v. Rice, 393 So.2d 552 (Fla. 1st DCA 1980).