Drafting Contracts to Say What You Mean

DRAFTING CONTRACTS TO SAY WHAT YOU MEAN

By: Larry R. Leiby, Esq. and Robert S. Tanner, Esq.

About the Author: Larry Leiby, Esq. was the founder and first chairman of the Florida Bar Construction Law Committee in 1976. He is the author of the Florida Construction Law Manual. He is Board Certified in Construction Law and was on the Construction Law Certification Committee that creates and grades the tests for construction law board certification. He was awarded the lifetime achievement award by the Florida Bar Construction Law Committee and teaches construction law at the Florida International University College of Law. He can be reached at leiby@mkpalaw.com. For more information, please visit www.mkpalaw.com.

Consequences of great proportions can arise from failing to ensure that your contracts say what you mean them to say. The recent case of Coda Roofing, Inc. v. Gemini Insur. Co., 2010 WL 3745904 (S.D. Fla. Sept. 21, 2010) provides a good example of an insurance company failing to ensure that its contract with the insured said what the insurance company wanted it to say. In that case, Coda Roofing, Inc. ("Insured") asked a retail insurance broker ("Broker") to look into obtaining a more affordable commercial general liability policy. Broker obtained an application for insurance from Gemini Insurance Company ("Insurer"). Insured completed the application and Insurer issued a policy. The policy did not contain a "torch-down exclusion". During the policy's effective period, Insured caused a fire with a torch while applying modified bitumen roofing material during repair a roof and when. The fire caused substantial damage to the property and its occupant.

Initially, Insurer's claim adjuster indicated that there were no coverage problems and no exclusions to coverage. Subsequently, however, Insurer denied the claim "on the basis that the insurance contract contained a torch-down exclusion which had mistakenly been omitted from the signed and bound insurance contract." Insured sued for breach of contract, breach of fiduciary duty and implied duty of good faith. Insurer filed a counterclaim for reformation, or to rewrite insurance contract. Insured and Insurer each filed motions for summary judgment, each essentially telling the trial court that all of the material facts were undisputed and each taking the position that it but not the other was entitled to judgment without a trial.

Insurer argued that the torch-down exclusion was included in the conditional quote that had been provided to Insured but that the exclusion did not appear in the final, signed contract because of omissions of the Broker and one of Insurer's employees. Insurer further argued that its underwriter would not have agreed to a policy that did not have the torch-down exclusion, even for a larger insurance premium. Thus, Insurer argued, the final, signed policy did not reflect the mutual agreement of the parties and that the court should reform the policy to include the exclusion.

Insured argued that it never had a discussion with anyone about a torch-down exclusion and that it would not have purchased a policy that had such an exclusion.

The trial court found that the final, signed policy did not contain a torch-down exclusion and that from the time it was signed through to the time of the fire, Insured and Insurer never discussed a torch-down exclusion. The trial court recited the rule that the law permits a court to reform a contract if it does not reflect the intent of the parties due to mutual mistake. That rule applies where both "parties agreed on one thing and when they put it in the contract they said something different." There was no evidence that Insured intended for a torch-down exclusion to be in the policy. Accordingly, the trial court denied Insurer's request for the contract to be reformed and found that Insurer was liable for the damages.

Checklists identifying the necessary elements of your contracts can go a long way to avoiding the problem that Gemini Insurance Company had - thinking that the contract contained a provision that it did not. However, due to the fact that contracts are frequently complicated and drafted with "legalese", the safest course may be to give work the checklist up with your lawyer and then have your lawyer review the contract