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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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Horvitz & Levy secured the complete affirmance by the Eleventh Circuit of a summary judgment in an insurer’s favor on a recurring insurance coverage issue. The district court held that as a matter of law, payments which are restitutionary in nature – the return of ill-gotten gains – are not insurable. Because the policyholder was also seeking attorneys fees, had the Eleventh Circuit Court reversed as to any aspect of the “loss,” the amount the insurer would have owed would likely have gone considerably higher than the policy proceeds.

The plaintiff/insured was an insurance agent/broker who represented, among other entities, the Miami-Dade Aviation Department. An investigation by the Inspector General concluded that over roughly four years, the insured had stolen from MDAD by first locating the insurance MDAD wanted, gathering premium bids, and then billing MDAD for an inflated amount and keeping the difference. By the time the investigation was completed, although the Inspector General concluded that the plaintiff had stolen over $416,000, only $180,807.87 was still within the statute of limitations. Prosecutors charged the insured and its principal with several counts of grand theft. The plaintiff tendered the action to the insurer pursuant to the plaintiff’s directors/officers policy, and the insurer accepted pursuant to a reservation of rights. Some time later, as settlement discussions began, the insurer expressly told that the insured that no payments in the nature of restitution would be covered by the policy. Later the insured presented the insurer (with a 24-hour deadline to respond) with a draft settlement agreement negotiated with prosecutors which would resolve all charges in return for three payments of nearly $304,000 – a payment to MDAD of precisely the maximum amount MDAD could have recovered within the statute of limitations; a $100,000 payment for costs of investigation; and a $20,000 “donation” to a victim’s rights charity run by the state (although the agreement provided that the insured could not take a tax deduction for the “donation.”) When the insurer refused to cover any of these payments, the insured filed suit. The district court entered summary judgment for the insurer, holding that all three payments were restitutionary in nature, and the return of ill-gotten gains was not an insurable loss. The Eleventh Circuit agreed that the payment to MDAD and the costs of investigation were the return of ill-gotten gains/restitution. Although the court said that the “donation” was not restitution, the court agreed with Horvitz & Levy's secondary argument that the payment was uninsurable as a penalty or fine imposed by law.