Mt. Hawley maintained that it had no duty to defend or to indemnify Aquasol, citing a number of exclusions, including the association member cross liability exclusion.

Mt. Hawley sought a declaratory judgment on the issue of whether it had a duty to defend and a duty to indemnify Aquasol in Ms. Davidson's action. Mt. Hawley moved for summary judgment.

Aquasol claimed that the title of the provision, “Association Member Cross Liability Exclusion,” created ambiguity and indicated that the endorsement eliminated coverage for claims brought by one insured against another, rather than excluding coverage for a lawsuit brought by a condominium owner against the condo association.

The District Court's Decision

The district court granted Mt. Hawley's motion.

In its decision, the district court found “no ambiguity” in the cross liability exclusion. The district court reasoned that:

• The exclusion “clearly” stated that “any claim or suit made by or brought on behalf of an 'association member' against any Insured” was not covered by the policy;
• The policy defined “association member” as “an owner or member of the homeowners or condominium owners association”;
• Ms. Davidson was an owner and member of the condominium association because of her ownership at Aquasol; and
• The underlying property damage lawsuit was brought by Ms. Davidson, an owner, against the insured, Aquasol.

The district court was not persuaded by Aquasol's argument that the title of the provision created ambiguity.

The district court pointed out that, under applicable Florida law, a title could not be used to create ambiguity where none existed. “The title or caption,” the district court stated, was looked to “only” when there was “ambiguity in the provision itself.”

Accordingly, the district court concluded, because there was no genuine issue of material fact that the underlying complaint was by an association member against an insured (that is, the association itself), and there was no ambiguity in the exclusion, Mt. Hawley had no duty to defend Aquasol (and therefore no duty to indemnify).

The case is Mt. Hawley Ins. Co. v. Aquasol Condominium Association, Inc., No. 18-24692-Civ-Scola (S.D. Fla. Jul 26, 2019). Attorneys involved include: For MT. Hawley Insurance Company, Plaintiff: G. Bartram Billbrough, Billbrough & Marks, Coral Gables, FL. For Aquasol Condominium Association, Inc, Defendant: Mauri Ellis Peyton, II, PeytonBolin, P.L., Fort Lauderdale, FL; Michael Mayer, Ft. Lauderdale, FL. For Lucrezzia Davidson, Defendant: William Joseph Roe, Law Office of William J. Roe, P.A., Aventura, FL.