DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DENIS M. FIELD,

Appellant,

v.

CERTAIN UNDERWRITERS AT LLOYD'S subscribing to shares of policies 

described below, to wit: Syndicates BRT 2987, WEL 2020, WEL 3030, FRW 

190, MKL 3000, HIS 33, KLN 510; GULF INSURANCE COMPANY OF UK 

LIMITED; LIBERTY MUTUAL INSURANCE COMPANY (U.K.) LIMITED, 

n/k/a, LIBERTY MUTUAL INSURANCE EUROPE LIMITED; QBE 

INTERNATIONAL INSURANCE LIMITED; LEXINGTON INSURANCE 

COMPANY PER RISK SPECIALISTS COMPANY OF NEW YORK; 

ASSCURAZAIONI GERALIS.P.A.; GE SPECIALTY INSURANCE (UK) LIMITED; 

ILLINOIS UNION INSURANCE COMPANY; PHILADELPHIA INSURANCE 

COMPANY; MULTINATIONAL ACCOUNTANS INDEMNITY LIMITED; BDO 

USA, LLP (a Delaware LLP); BDO SEIDMAN, LLP (a Delaware LLP); BDO 

SEIDMAN, LLP (a New York LLP), collectively “BDO”; SPACKLER INSURANCE 

COMPANY, INC.; and CERTAIN UNDERWRIERS AT LLOYD’S, subscribing to 

shares of the policies described below, to wit: SWISS RE INTERNATIONAL SE; 

LLOYD’S SYNDICATE NO. 1274 AUL AND ANTARES SYNDICATE 1274; 

COLUMBIA CASUALTY COMPANY; LLOYD’S SYNDICATE NAV 1221; 

COLUMBIA CASUALTY COMPANY; INTERSTATE FIRE AND CASAULTY 

COMPANY; IRONSHORE SPECIALTY INSURANCE COMPANY; QBE 

SPECIALTY INSURANCE COMPANY; SCOTTSDALE INSURANCE COMPANY; 

STARR SURPLUS LINES INSURANCE COMPANY; LLOYD’S SYNDICATE NAV 

1221; INTERSTATE FIRE AND CASUALTY COMPANY; IRONSHORE 

SPECIALTY INSURANCE COMPANY; STARR SURPLUS LINES INSURANCE 

COMPANY,

Appellees.

No. 4D19-2429

[September 16, 2020]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach 

County; Cymonie S. Rowe, Judge; L.T. Case No. 502017CA010333XXXXMBAI.

Kevin F. Richardson of Clyatt & Richardson, P.A., West Palm Beach and 

James D. Wing, Mount Dora, for appellant.
2

Robert E. McLaughlin, Jennifer W. Wolak and Samantha Lemery Rowles of 

Fields Howell LLP, Atlanta, GA, and Scott J. Link and Kara Rockenbach Link of 

Link & Rockenbach, PA, West Palm Beach, for appellees.

Anthony N. Upshaw, Melissa R. Alvarez and Audrey Pumariega of McDermott 

Will & Emery LLP, Miami, and Timothy E. Hoeffner and Jason Gerstein of 

McDermott Will & Emery LLP, New York, NY, for appellee Spackler Insurance 

Company, Inc.

WARNER, J.

Appellant challenges a final summary judgment in favor of appellees, the 

2017-18 Underwriter Insurers, in his suit to recover defense costs he incurred 

in a criminal trial in which he was acquitted. In a thorough and well-reasoned 

opinion, the trial court determined that the costs for which he sought 

reimbursement were not made in connection with a “claim,” as defined in the 

policy, during the policy term. We affirm the trial court’s decision.

Appellant was a partner and the CEO of a global accounting firm, BDO 

Seidman, LLP., until his resignation from the firm in 2003. During the years 

2000 through late 2003, BDO, appellant, and others came under government 

investigation for tax services that the IRS considered to be abusive tax shelters. 

In 2009, appellant and others were criminally charged in connection with the 

tax services that they provided. Appellant was eventually acquitted of all charges 

in 2013.

During the years 2000-2017, BDO and its partners were insured under 

“towers” of Lloyd’s of London primary and excess insurance policies.1 Each 

policy was written for a single year of coverage. In May of 2003, BDO sent to 

Lloyd’s representative a notice of circumstance. The notice arose out of the tax 

shelter services which BDO had provided to its high value tax clients. The IRS 

considered those shelters to be abusive tax shelters, and they were under IRS 

examination. The notification triggered coverage for the policy year 2002-2003. 

By the time of appellant’s criminal charges, the 2002-03 underwriters had paid 

out their limits under the policy.

In 2017, appellant made a claim to the appellees, the 2017-2018 Underwriter 

Insurers, seeking indemnification for defense costs incurred in the 2009-2013 

criminal proceedings, which claim was denied. Appellant then filed suit against 

the appellees, adding these claims to others pending against other insurers. In 

his complaint, appellant claimed coverage for his defense costs under the 2017-

18 policy.

1 The policies covered both current and former partners as individual assureds.
3

Appellees moved for summary judgment on the complaint, attaching the 

policy. Among their several arguments, they contended that no claim, as defined 

in the policy was made during the policy period. Appellant challenged their 

interpretation, but the trial court held that the plain language of the policy did 

not allow for the recovery of appellant’s defense costs for his criminal prosecution 

which ended over four years earlier. The trial court granted judgment in favor of 

the insurer, prompting this appeal.

We review a final summary judgment de novo. Frost v. Regions Bank, 15 So. 

3d 905, 906 (Fla. 4th DCA 2009). Appellate review of the interpretation of an 

insurance policy is a question of law and also subject to de novo review. Penzer 

v. Transp. Ins. Co., 29 So. 3d 1000, 1005 (Fla. 2010).

“Insurance contracts are construed according to their plain meaning, with 

any ambiguities construed against the insurer and in favor of coverage.” U.S. 

Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 877 (Fla. 2007) (citing Taurus 

Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005)). When 

the language of an insurance policy is plain and unambiguous, a court must 

interpret the policy in accordance with the plain meaning in order to give effect 

to the policy as written. Washington Nat’l Ins. Corp. v. Ruderman, 117 So. 3d 

943, 948 (Fla. 2013). “Insurance contracts are to be reviewed as a whole, viewing 

all words in context.” Walker v. State Farm Fire & Cas. Co., 758 So. 2d 1161, 

1162 (Fla. 4th DCA 2000). “When construing an insurance policy to determine 

coverage the pertinent provisions should be read in pari materia.” Nationwide 

Mutual Fire Ins. Co. v. Olah, 662 So. 2d 980, 982 (Fla. 2d DCA 1995).

The important provisions of the appellee’s policy for consideration of 

appellant’s claims include the operative clause and the definitions of “claim” and 

“defense costs.” The “Operative Clause” of the Policy provides:

Subject to all other provisions of this Policy, the Insurer will 

indemnify the Assured against:

(1) Loss arising from a Claim first made against the Assured 

during the Policy Period;

(2) Defense Costs;

(3) Regulatory Loss;

(4) Regulatory Defense Costs.

A “Claim” in the Policy is defined as: “a written demand for monetary or nonmonetary relief, which may include a civil legal proceeding or binding arbitration 
4

proceeding, made against the Assured by reason of a Wrongful Act[.]”2 “Defense 

costs” are defined as follows:

(a) costs, charges and expenses incurred by the Assured in the 

defense of a Claim;

(b) the cost of an appeal bond or similar bond required in connection 

with the contest of a Claim, and the cost of any security required

in relation to the bond;

(c) costs, charges and expenses reasonably incurred in defense or 

settlement of circumstances arising out of conduct of 

Professional Business that might give rise to a Claim for which 

cover may be provided by this Policy and are notified to and 

accepted as such by the Insurer under Condition (1)[.]

The first page of “Risk Details” before the Operative Clause, states: “THIS IS A 

CLAIMS MADE POLICY WHICH APPLIES ONLY TO CLAIMS FIRST MADE 

DURING THE POLICY PERIOD.” The Policy Period is stated to be June 1, 2017 

to June 1, 2018.

As the trial court concluded, the policy requires a claim to be a written 

demand for monetary relief against the Assured as a result of a wrongful act. 

The wrongful act in this case constituted the professional advice given by 

appellant with respect to the tax shelter services, which was the origin of the 

criminal prosecution. The operative clause allows indemnification under the 

policy for losses from claims, and defense costs. The definition of defense costs 

plainly requires those costs to be incurred with respect to a claim.

For the purposes of the motion, the trial court accepted appellant’s contention 

that the criminal prosecution could constitute a claim for non-monetary relief. 

But that “claim” was not made within the policy period of 2017-18. The criminal 

prosecution was commenced in 2009. Only the request for defense costs was 

made during the policy period, which had to be the result of a claim. Thus, if 

the claim was not made within the policy period, then there could be no 

indemnification of defense costs which had to be associated with a claim. We 

agree with the trial court’s interpretation of the contract.

Appellant points to the definition of “Policy Claim” in the contract and 

contends that the reimbursement of defense costs for his criminal prosecution 

is an independent claim, not governed by the definition of “defense costs” in the 

policy. A “Policy Claim” is defined as “a claim by the Assured to be indemnified 

2 “Wrongful Act” is defined as “any negligent act, error or omission, breach of 

duty....committed or alleged to be committed at any time in the conduct of Professional 

Business.”
5

by the Insurer under this Policy.” Appellant claims his defense costs therefore 

are a first-party claim and not a third-party claim, as in the “claim” definition. 

Since he requested indemnification of the cost of his prosecution during this 

policy period, the policy should provide coverage. He contends that the trial 

court and the appellees erred in reading into the definition of a “Claim” and a 

“Policy Claim” that they must be made during the policy period since neither 

definition mentions this time restriction.

We disagree with appellant’s interpretation of “Policy Claim.” That term is 

used in the “Conditions” section of the policy. In those provisions, notice to the 

appellees is a condition of the policy. That provision states, “For the purposes 

of this Policy, the date on which such Claim . . . is made against the Assured 

during the Policy period is the date upon which the resulting Policy Claim shall 

attach to this policy.” Thus, it is plain from the policy that the Policy Claim is 

derivative of the Claim made during the policy period. It is not an independent 

claim. And because the Claim giving rise to the claim of indemnification was not 

made during the policy period, there was no Policy Claim for indemnification on 

this policy.

Appellant also commences his brief with a suggestion that we rely on English 

law in construing the policy. Not only is this improperly raised for the first time 

on appeal, the policy itself shows New York as the choice of law for interpretation 

of the policy. No argument as to choice of law was advanced in the trial court. 

This argument therefore is meritless.

For the foregoing reasons, we affirm the judgment determining that the 

insurers’ policy does not provide coverage for the appellant’s defense costs.

Affirmed.

MAY, J., and HILAL, JENNIFER, Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.