final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 15-16651, Maria De Jesus Santovenia, Judge.
Lopez Gassler, P.A., and Ezequiel Lugo, and Chris W.
Altenbernd (Tampa), for appellant.
Law Offices of Anthony & Associates, P.A., and Andrew J.
Anthony and Bradley A. Silverman, for appellee.
SALTER, LOGUE, and SCALES, JJ.
insurer, Diamond State Insurance Company, seeks review of the
declaratory judgment finding that it owes a duty to defend
The Florida Department of Children and Families (DCF). We
2000, the State of Florida privatized the provision of foster
care and related services. § 409.1671 (1)(a), Fla. Stat.
(2000). With the privatization of foster care, DCF was able
to contract for the provision of child protective services
with private corporations deemed to be "eligible lead
community-based provider[s]." § 409.1671 (1)(b),
Fla. Stat. (2000). DCF contracted with Our Kids of
Miami-Dade/Monroe, Inc. for the provision of foster care
services in Miami-Dade County. By law, Our Kids was required
to maintain insurance coverage under section 409.1671 (1)(f),
and did so by purchasing a "claims made and
reported" professional liability policy from the
insurer. The policy contained an endorsement which provided
coverage for DCF, except where DCF was sued for its own
negligence. The policy had a limit of $1, 000, 000 per claim
and $3, 000, 000 in the aggregate and was in effect for the
period of 2010-2011.
minors in the care of Our Kids sued it for allowing abuse.
The lawsuits were eventually settled for a combined amount of
$2, 990, 000. After settling with Our Kids, the minors filed
lawsuits against DCF. The complaints against DCF alleged that
"DCF contracted with Our Kids of Miami-Dade/Monroe, Inc.
. . . as the lead agency provider of foster care and related
services in Miami-Dade County." The complaints further
alleged that the minors suffered damages "[a]s a direct
and proximate result of the negligence of Defendant DCF,
through its employees, agents, and servants," and that
"the minors suffered years of abuse and neglect
resulting in permanent and continuing damages."
demanded the insurer defend the lawsuits, but the insurer
refused, citing a provision in the policy which specifies
that the insurer's "right and duty to defend ends
when [it has] used up the applicable limit of insurance in
the payment of judgments and settlements." Because the
insurer refused to defend the lawsuit, DCF sued for a
declaratory judgment that the insurer had a duty to defend.
The insurer answered and raised the affirmative defense that
"[c]overage was extinguished through settlement of other
claims prior to claims being made against DCF. The
policy's aggregate limits are exhausted and [the insurer]
has no further duties."
moved for partial summary judgment on the duty to defend,
asserting that (1) the duty to defend is determined by
looking only to the pleadings, which made no reference to
policy limits; and (2) in any event, the insurer could not
establish that its policy limits had been exhausted. In
response to the motion for summary judgment, the insurer
filed the affidavit of its senior claims examiner which
stated the policy limits had been exhausted, thereby ending
any duty to defend. In argument, DCF maintained that the
affidavit lacked credibility because the insurer admitted in
discovery that it lacked some of the documentation normally
associated with such a payment of the policy limits; the
insurer had promised to provide the missing documents but
failed to do so; and the insurer had a history of making
false statements. The trial court ultimately ruled in favor
of DCF and granted partial summary judgment. Upon DCF's
motion, the trial court subsequently entered a final
declaratory judgment finding that the insurer owed DCF a duty
to defend. This appeal followed.
review "a trial court's ruling on a motion for
summary judgment de novo." Cascar, LLC v. City of
Coral Gables, 274 So.3d 1231, 1233 (Fla. 3d DCA 2019).
"Summary judgment is proper if there is no genuine issue
of material fact and if the moving party is entitled to a
judgment as a matter of law." Id. at 1234
(quoting Volusia Cnty. v. Aberdeen at Ormond Beach,
L.P., 760 So.2d 126, 130 (Fla. 2000)). "Summary
judgment 'is designed to test the sufficiency of the
evidence to determine if there is sufficient evidence at
issue to justify a trial or formal hearing on the ...