Courts do not Have the Power to Rewrite an Insurance Policy

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When Richard Hermanns bought his first citrus grove in 2009, he hired Richard McKenzie – who had experience with starting and managing citrus groves – to take care of things for him. He relied on McKenzie for everything: clearing the land, buying the supplies, planting the trees, keeping the trees healthy, maintaining the groves, and picking the fruit. McKenzie, in turn, billed Hermanns for materials purchased and labor expended. Hermanns left everything in McKenzie’s hands and did not visit the groves often. That error eventually resulted in litigation called The Travelers Indemnity Company Of Connecticut v. Richard Mckenzie & Sons, Inc., Hermanns Real Estate Ventures, LLC, No. 18-13172, United States Court of Appeals, Eleventh Circuit (August 26, 2021) attempting to provide coverage for the damage done by the thief.

ZALMA OPINION

Before entering into litigation on an insurance coverage issue it is best to do what the Eleventh Circuit did in this case: read the entire policy. Although the plaintiffs’ counsel tried valiantly to find a way around clear and unambiguous exclusions the acts complained of were simply excluded. The court, by ruling on the one exclusion, avoided all of the intentional acts and lack of fortuity since the insured was obviously a thief who did the damage intentionally and fraudulently. Either way there was no coverage and Travelers should not have been required to defend through trial and appeal this case.