The duty to defend is distinct from and broader than the duty to indemnify the insured against damages assessed, and if the complaint alleges facts showing two or more grounds for liability, one being within the insurance coverage and the other not, the insurer is obligated to defend the entire suit. State Farm Mutual Automobile Insurance Co. v. Universal Atlas Cement Co., 406 So.2d 1184; Florida Farm Bureau Mutual Insurance Co. v. Rice, 393 So.2d 552 (Fla. 1st DCA 1980); Tropical Park, Inc. v. United States Fidelity Guaranty Co., 357 So.2d 253 (Fla. 3d DCA 1978); Stevens v. Horne, 325 So.2d 459 (Fla. 4th DCA 1976); Garden Sanctuary, Inc. v. Insurance Company of North America, 292 So.2d 75 (Fla. 2d DCA 1974). Hence, the duty to defend continues even though it is ultimately determined that the alleged cause of action is groundless and no liability is found within the policy provisions defining coverage. New Amsterdam Casualty Co. v. Knowles, 95 So.2d 413; Logozzo v. Kent Insurance Co., 464 So.2d 605 (Fla. 3d DCA 1985); Accredited Bond Agencies, Inc. v. Gulf Insurance Co., 352 So.2d 1252 (Fla. 1st DCA 1978); State Farm Mutual Automobile Insurance Co. v. Universal Atlas Cement Co., 406 So.2d 1184; Stevens v. Horne, 325 So.2d 459; Garden Sanctuary, Inc. v. Insurance Company of North America, 292 So.2d 75; 7C Appleman, Insurance Law Practice, ยง 4683.01, p. 65 (Berdal Ed. 1979). If the allegations of the complaint leave any doubt regarding the duty to defend, the question must be resolved in favor of the insured requiring the insurer to defend.
In Florida, "an insurer's duty to defend an action against its insured by a third person is determined by the allegations of the complaint." Stevens v. Horne, 325 So.2d 459, 461 (Fla. 4th DCA 1975); see also Federal Ins. Co. v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979). "[S]o long as one count of the complaint against [the insured] [is] within the scope of liability coverage, [the insurer] [has] a duty to defend, at least until such time as the covered portion of the claim [is] eliminated from the suit." Employers Commercial Union Ins. Co. v. Kottmeier, 323 So.2d 605, 607 (Fla. 2d DCA 1975) (citation omitted).
31 Fla.Jur.2d Insurance ยง 824 (1981). 31 Fla.Jur.2d Insurance ยง 822; Klaesen Brothers, Inc. v. Harbor Insurance Co., 410 So.2d 611 (Fla. 4th DCA 1982); Stevens v. Horne, 325 So.2d 459 (Fla. 4th DCA 1975); Dochod v. Central Mutual Insurance Co., 81 Mich. App. 63, 264 N.W.2d 122 (Mich. App. 1978); Coblentz v. American Surety Company of New York, 416 F.2d 1059 (5th Cir. 1969). With regard to Vanguard's motion to intervene and file its declaratory complaint, we think the trial court was correct in denying it for the given reason, and for two other more fundamental ones.
First, it is evident that Mason charged Waco with some theories of liability which were covered by appellants' policies and some theories of liability which were not covered thereby. Hence, based upon those allegations of Mason's complaint, appellants were obligated to defend Waco. Stevens v. Horne, 325 So.2d 459 (Fla. 4th DCA 1976). However, the fact that appellants had a duty to defend under these circumstances does not necessarily mean that they were obligated to pay any judgment recovered.
, the insurer must provide a defense on the entire suit."); see also Stevens v. Horne, 325 So.2d 459, 461 (Fla. 4th DCA 1975). Further, if any of GM&P's claims against KNS could have been brought in the absence of a contract between the parties, that claim would not fall within the breach-of-contract exclusion.
Aetna Ins. Co. v. Waco Scaffold Shoring Co., Inc., 370 So. 2d 1149, 1151-52 (Fla. 4th DCA 1978). "`Florida law is clear that an insurer's duty to defend an action against its insured by a third person is determined by the allegations of the complaint [against the insured].'" 370 So. 2d at 1151-52 (quotingStevens v. Horne, 325 So. 2d 459, 461-62 (Fla. 4th DCA 1976)). If "`only portions of a complaint fall within the coverage of the insurance policy and other portions fall outside the policy, the insurer has a duty to defend the entire suit. . . .'" 370 So. 2d at 1151-52.
Like Hassinger, these cases involve conduct which cannot sensibly be said to have been both intentional and in good faith. Stevens v. Horne, 325 So.2d 459 (Fla.Ct.App. 1975) (union members hung likeness of non-union employee in effigy; court denied coverage); Travelers Indem. Co. v. Nieman, 563 S.W.2d 724 (Ky.Ct.App. 1977) (pharmacist repeatedly sold amphetamines to customer without prescription; coverage denied); Applewhite v. City of Baton Rouge, 380 So.2d 119 (La.Ct.App. 1979) (police officers sexually assaulted citizen; coverage denied); American Home Assurance Co. v. Diamond Tours Travel, Inc., 78 A.D.2d 801, 433 N.Y.S.2d 116 (App.Div. 1980) (insurer not bound to defend travel agency against civil action for fraud). Cf. Fireman's Ins. Co., 41 N.Y.2d 947, 363 N.E.2d 356, 394 N.Y.S.2d 632 (1977) (Mem.) (insurer was bound to defend pharmacist from malpractice action where pharmacist was alleged to have refilled prescriptions without a doctor's authorization; court stressed presence of negligence allegations).
We note in passing that in resolving this issue, we are dealing with a lawful strike. Union activities that become violent and threaten the public safety are not protected by the constitutional right to free speech or provisions for collective bargaining. 51A C.J.S. ยง 289, p. 67; Clark v. State (Okla.Cr.App. 1962), 370 P.2d 46; Smith v. Grady (5th Cir. 1969), 411 F.2d 181; Stevens v. Horne (Fla.App. 1976), 325 So.2d 459. See also, Great Northern Ry. Co. v. Local G.F.L. of I.A. of M. (D.Mont. 1922), 283 F. 557.
The contention of respondent is, that such was the effect of the checks, and that they worked an equitable assignment pro tanto; that the attaching creditor can only acquire such rights to the property attached as the debtor had at the time the attachment was served; and as the debtor's authority over the fund ceased after he had given checks for its withdrawal, the creditor gets nothing by his attachment. In support of his contention respondent cites Hassie v. God Is WithUs Cong., 35 Cal. 378; Grain v. Aldrich, 28 Cal. 514;Redondo B.Co. v. California etc. Co., 101 Cal. 322; Oppenheimer v. First Nat. Bank, 20 Mont. 192; Schuler v. Israel, 120 U.S. 506; Horne v. Stevens, 79 Me. 262; Dillman v. Carlin, 105 Wis. 14;Skobis v. Ferge, 102 Wis. 122; Fornner v. Smith, 31 Neb. 107;Pease v. Landauer, 63 Wis. 20; Rood on Garnishment, sec. 71, and cases in note 101; Bank ofAmerica v. Indiana Banking Co., 114 Ill. 484, and two other Illinois cases there cited. We have examined these authorities with some care, but, with the exception of the Illinois cases, they do not support the position of respondent.
Although Ranger questioned its obligation to provide coverage, it proceeded to defend the Club in the action under a reservation of rights. See Stevens v. Horne, 325 So.2d 459, 462-63 (Fla. 4th DCA 1975); Midland National Insurance Co. v. Watson, 188 So.2d 403 (Fla. 3d DCA 1966). The lawsuit was ultimately settled with the advice and consent of Ranger by the Club paying $25,000 to the Skolniks., Ranger then instituted this declaratory action seeking a determination that there was no coverage under the policy issued to the Club.