But breach of which condition?
In Doe v. Onebeacon Am. Ins. Co., 639 F. App'x 627 (11th Cir. 2016), a panel of the Eleventh Circuit was confronted with many issues of Florida law surrounding a liability carrier's duty to defend and an insured's settlement without the carrier's consent. The panel side-stepped all of those issues.
The Court held both that the insured breached a policy condition and also that there was insufficient evidence that the carrier provided a legally inadequate defense in the underlying case. For either reason, the claim of a "bad-faith" or legally inadequate defense could not stand. (In Florida, an inadequate defense is a breach of contract and cannot really be called "bad faith," although given the outcome in this case, the panel never had to reach this or any similar issue.)
It is difficult to determine from this brief opinion which condition the Eleventh Circuit panel was addressing. The panel appeared to equate the policy prohibition on the insured's settlement without the carrier's consent, with the insured's duty to cooperate:
As a matter of law, the insured—at the time it settled the case in advance of trial—breached its duty to cooperate with its insurer in the investigation and defense of the underlying tort claim. So, the insurer has no duty to indemnify the insured in this case.
Doe v. Onebeacon Am. Ins. Co., 639 F. App'x 627, 628 (11th Cir. 2016).
In the final analysis, it does not matter which condition the insured breached in this case. It may have breached one of them or it may have breached both of them. In any case, there was no coverage and so there was no claim here, the Eleventh Circuit effectively held.
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