September 20, 2020

Volume X, Number 264

September 18, 2020

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Eleventh Circuit Determines AEGIS Must Defend Landlord in Security Deposit Class Action

Deciding that certain damages claimed by the underlying case plaintiff were covered “Loss” under a professional services policy, the Eleventh Circuit determined that AEGIS must pay to defend a Georgia landlord in a class action for wrongful failure to return tenants’ security deposits under O.C.G.A. § 44-7-35(c).  The policy defined “Loss” as “a compensatory monetary amount for which the Insured may be held legally liable, including judgments . . . awards, or settlements,” but specifically excluded:

- any disgorgement, return, withdrawal, restitution or reduction of any sums which are or were in the possession or control of any Insured;

- punitive, exemplary, treble damages or any other damages resulting from the multiplication of compensatory damages; [or]

- equitable relief, or fees, costs or expenses incurred by the Insured to comply with any such equitable relief.

The Eleventh Circuit, reversing the district court, decided that AEGIS was obligated to defend the landlord because the plaintiff in the underlying case had demanded attorney’s fees under the Georgia Security Deposit statute, which was covered Loss.  AEGIS contended that attorney’s fees were not covered Loss because they were only available for intentional conduct that would entitle plaintiffs to treble damages, which were excluded under the policy.  The Eleventh Circuit rejected AEGIS’s argument, noting that “while it is true that an award of attorney’s fees under the statute, as a practical matter, rises and falls with the award of treble damages, it does not directly flow from those damages.  Rather, both the treble damages and the attorney’s fees flow from a finding that that the landlord acted intentionally . . .”  Accordingly, the attorneys’ fees claimed in the underlying case were covered Loss, requiring AEGIS to defend the landlord.

The appellate court did agree with the district court and AEGIS that there was no coverage for the transfer of any part of the security deposit back to the tenant, because such a transfer would fall within the scope of the Policy’s carve-out for “any disgorgement, return, withdrawal, restriction of reduction of any sums which are or were in possession or control of any insured …”  Thus, any defense obligation could not be based on those allegations.

The Eleventh Circuit’s decision follows well-established Georgia law requiring strict construction of any exclusions to coverage and imposing on insurers “a duty to define any limitations on that coverage in clear and explicit terms.”  Because attorney’s fees were not specifically excluded from coverage under the landlord’s policy (and in fact, “awards” were specifically included within the definition of “Loss”), they were covered under the policy and triggered the landlord’s duty to defend.  As the court observed, “[i]f the facts as alleged in the complaint even arguably bring the occurrence within the policy’s coverage, the insurer has a duty to defend the action,” and the attorney’s fee claim unquestionably fell within coverage of the AEGIS policy.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 218

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About this Author

Lawrence J. Bracken II Insurance Attorney Hunton Andrews Kurth Atlanta, GA & New York, NY
Partner

Larry Bracken has more than 30 years of experience litigating and investigating insurance coverage, class action, technology, environmental and commercial matters.

Larry has represented clients in federal and state courts throughout the United States in a broad range of cases, particularly the litigation of insurance coverage disputes, class actions and other cases involving allegations of unfair trade practices, ...

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Michael S. Levine Insurance Lawyer Hunton Andrews Kurth
Partner

Mike has more than 20 years of experience litigating insurance disputes and advising clients on insurance coverage matters.

Mike Levine is a partner in the firm’s Washington, DC office and a member of the firm’s Insurance Recovery team. Mike’s policyholder representation focuses on:

  • Property damage and business interruption claims, including COVID-19 losses
  • Event cancellation insurance counseling
  • Representations and warranties coverage
  • Commercial, professional, corporate and employment liabilities under CGL, pollution, E&O, D&O and EPLI insurance policies

Mike has spent his entire career advising clients about insurance and handling insurance coverage disputes. As a young lawyer, Mike represented the insurance industry in some of the highest-stakes matters, including the property, liability and appraisal proceedings arising from the Sept. 11 terrorist attack on the World Trade Center. Mike has devoted the latter half of his career to helping policyholders obtain the insurance recoveries they deserve, where Mike leverages his substantial insurance industry experience to maximize his clients’ insurance recoveries.

In recent years, Mike has recovered hundreds of millions of dollars of insurance proceeds for clients under general liability, property, directors and officers, cyber, errors and omissions, employment, environmental, and representations and warranties insurance coverages.

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