United States District Court, S.D. Florida
PRIVILEGE UNDERWRITERS RECIPROCAL EXCHANGE, d/b/a Pure Insurance, Plaintiff,
THE HANOVER INSURANCE GROUP, d/b/a Massachusetts Bay Insurance Company, Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BLOOM, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court following a bench trial
held over the course of one day on October 16, 2017.
See ECF No. . Prior to trial, the parties filed
their Proposed Findings of Fact and Conclusions of Law.
See ECF Nos.  and . The Court has carefully
considered the evidence presented at trial, the applicable
law, and the parties' submission, and sets forth its
relevant findings of fact and conclusions of law below.
case arises from a lawsuit filed in the Seventeenth Judicial
Circuit in and for Broward County styled as Bradley J.
Edwards, et. al. v. Alan M. Dershowitz (the
“underlying lawsuit). See ECF No. [44-8]. In
the underlying lawsuit, attorneys Bradley J. Edwards
(“Edwards”) and Paul G. Cassell
(“Cassell”) alleged defamation claims against
Alan Dershowitz (“Dershowitz”). Id. It
was alleged that, after Edwards and Cassell filed legal
pleadings that referenced Dershowitz in an unrelated federal
lawsuit, Dershowitz then “initiated a massive public
media assault on the reputation and character” of
Bradley and Cassell. Id. The parties in this case
each insured Dershowitz under different policies during the
time the allegedly defamatory statements were made. Privilege
Underwriters Reciprocal Exchange (“PURE”) issued
a homeowner's insurance policy to Dershowitz whereas The
Hanover Insurance Group (“Hanover”) issued a
business owner's insurance policy to Dershowitz.
Eventually, the parties in the underlying lawsuit entered
into a confidential settlement. Both PURE and Hanover
contributed to the settlement. In this case, PURE filed a
claim for equitable subrogation, seeking to recover the
amount it contributed toward the settlement from Hanover.
FINDINGS OF FACT
underlying lawsuit, it was alleged that Dershowitz made
defamatory statements from his home during an interview
broadcast on international media outlets, including CNN.
See ECF No.  at ¶ F. PURE issued a
homeowners' policy to Dershowitz, which provides
as follows: “if a claim is made or a suit is brought
against an insured for damages because of personal injury . .
. caused by an occurrence anywhere in the world to which this
coverage applies, we will [p]ay up to the liability coverage
limits shown on your Declarations for which an insured is
legally liable.” Id. at ¶¶ A and D.
The PURE policy defined “personal injury” to
include injury arising out of defamation, libel or slander.
Id. at ¶ D.
issued a business owner's policy to Dershowitz.
Id. at ¶ B. The Hanover policy provides that it
“will pay those sums that the insured becomes legally
obligated to pay as damages because of ‘bodily injury,
' ‘property damage' or ‘personal and
advertising injury' to which this insurance
applies.” Id. at ¶ E. The Hanover policy
further states that it applies to “‘personal and
advertising injury' caused by an offense arising out of
PURE and Hanover provided a defense and contributed to the
eventual settlement of the underlying lawsuit under separate
reservations of rights. Id. at ¶ C.
Significantly, both the PURE and Hanover policies contained
an “other insurance” provision. The PURE policy
Other Insurance and Service Agreement
2. Any coverage under SECTION III - LIABILITY COVERAGE will
be excess over other valid and collectible insurance except
insurance written specifically to cover as excess over the
limits of liability that apply in this policy.
Id. at ¶ G. The Hanover policy contains the
H. Other Insurance
2. SECTION II- LIABILITY
If other valid and collectible insurance is available to the
insured for a loss we cover under SECTION II-
LIABILITY, our obligations are limited as follows:
a. Primary Insurance
This insurance is primary except when Paragraph
b. below applies. If this insurance is
primary, our obligations are not affected unless any of the
other insurance is also primary. Then, we will share with all
that other insurance by the method described in Paragraph
b. Excess Insurance
This insurance is excess over:
1) Any of the other insurance, whether
primary, excess, contingent or on any ...