Insurers can prevail on Declaratory Judgment actions when they have “Communicable Disease” exclusions for “bodily injury”
- In Clarke v. State Farm, 37 Fla. L. Weekly D2540, 4th DCA, October 31, 2012, the Fourth District Court of Appeal upheld the lower court’s order granting State Farm’s motion for summary judgment on a coverage action. State Farm argued its insuring agreement which defined bodily injury to exclude: “any of the following which are communicable: disease, bacteria, parasite, virus, or other organism, any of which are transmitted by any insured to any other person” was broad enough to allow them to prevail on the declaratory judgment action. The plaintiff in the case filed a complaint asserting bodily injury from Herpes Simplex Virus under theories of negligence, fraudulent concealment, battery, and intentional infliction of emotional distress. The court found that event though the exclusion did not have the “arising out of” language which allows for coverage cases to be decided decisively for insurers, the court determined the plain language of the policy would not allow any other meaning to be interpreted.
Practice Tip: The “plain language” or plain meaning argument seems to be gaining some steam in the appellant courts. After sending the reservation of rights and filing a motion to abate and consolidate the case early with the dec action, these coverage cases can be very successful.