, 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).
Neither is there an allegation that Giffen rejected the proffered defense and set about defending the action with its own counsel. Thus Taylor v. Safeco Insurance Company, 361 So.2d 743 (Fla. 1st DCA 1978) and Stevens v. Horne, 325 So.2d 459 (Fla. 4th DCA 1975) relied on by Giffen are inapposite. The cross-claim fails to allege any breach of duty by appellees, and the court was correct in entering a judgment on the pleadings, which judgment is AFFIRMED.
But Safeco wished to avoid any implication that it acquiesced in the assertion, made by the claimant and by Earl, that Safeco would be liable to pay any resulting judgment. To avoid any claim of estoppel, Phoenix Assur. Co. of New York v. Hendry Corp., 267 So.2d 92 (Fla. 2d DCA 1972), Safeco notified Earl that it undertook his defense reserving its claim of nonliability for any judgment. Safeco was entitled to take that position, for the law distinguishes between the insurer's duties to defend and to pay, Stevens v. Horne, 325 So.2d 459 (Fla. 4th DCA 1976), and does not forbid agreement between insurer and a putative insured which resolves the urgent question of who shall defend and postpones resolution of the contingent question of who shall pay any judgment. Similarly, Earl Taylor was not obliged to surrender control of his personal defense to an insurer which disclaimed responsibility for any judgment within policy limits that might result from the litigation.