Ambiguous “Occurrence” Under Florida Law Must Be Construed in Favor of the Insured: Parkland Mass Shooting Is a Single Occurrence; Early Declaratory Actions Are Justiciable; No “Sophisticated Insured” Exception; Threatened Denials Trigger Fee-Shifting

Introduction

In a published decision, the Eleventh Circuit affirmed summary judgment for the Sheriff of Broward County in a high-stakes insurance coverage dispute arising from the 2018 Marjory Stoneman Douglas High School shooting in Parkland, Florida. The central fight concerned whether the event was a single “occurrence” or many under an excess liability policy issued by Evanston Insurance Company. That classification determines whether the Sheriff owes one or many self-insured retentions (SIRs) before excess limits are implicated.

The court also addressed threshold justiciability—whether an insured may bring a declaratory action over coverage before any underlying judgment or settlement is entered—and fee-shifting under Florida’s pre-2023 attorney-fee statutes for insureds that prevail in coverage litigation.

The panel (Judge Hull, joined by Judges Jill Pryor and Luck) held that: (1) there was an actual, ripe controversy; (2) the policy’s standard definition of “occurrence” is ambiguous under Florida law and must be construed in favor of the insured; (3) construing the ambiguity for the Sheriff yields a single occurrence for the Parkland shooting; (4) Florida law recognizes no “sophisticated insured” exception to the contra proferentem rule and does not look to extrinsic intent to resolve ambiguity; and (5) Evanston’s “no obligation to pay” stance in a reservation letter amounted to an (incorrect) denial sufficient to trigger fee-shifting under Florida’s pre-repeal statutes.

Summary of the Opinion

Justiciability: The dispute presented an “actual controversy” suitable for declaratory relief under 28 U.S.C. § 2201 because the Sheriff faced 60 suits, had already incurred over $1 million in defense costs (satisfying the SIR if the event is one occurrence), and produced evidence that the annual aggregate deductible was exhausted by other claims during the policy period.
Occurrence: The policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions,” the same language addressed in Koikos v. Travelers (Fla. 2003). Following Koikos, Taurus Holdings, and Maddox, the court held the term is ambiguous and, under Florida law, must be construed in favor of the insured. Applied here, the Parkland shooting is one occurrence, which in turn means only one SIR applies.
Sophisticated insured and extrinsic evidence: Florida law permits no “sophisticated insured” exception to the rule that ambiguous insurance terms are construed against the insurer, and courts may not resort to extrinsic evidence to resolve such ambiguity.
Sovereign immunity cap: Florida’s tort damages caps (Fla. Stat. § 768.28(5)(a)) did not defeat justiciability or coverage trigger where the SIR may be satisfied by claim expenses and the deductible is annual and aggregate across occurrences in the policy period.
Attorney’s fees: Under Florida’s then-governing fee-shifting statutes for insureds (Fla. Stat. §§ 626.9373, 627.428), an insurer’s threatened or conditional denial of benefits suffices. Evanston’s letter saying it had “no obligation to pay” unless multiple SIRs were exhausted qualified, and the insured prevailed by judgment on a significant coverage issue, warranting fees and non-taxable costs.

Analysis

Precedents Cited and Their Influence

The court’s framework rests squarely on Florida Supreme Court decisions interpreting insurance contracts:

Koikos v. Travelers Ins. Co., 849 So. 2d 263 (Fla. 2003): The Florida Supreme Court addressed the same “occurrence” definition. It adopted the “cause theory” over the “effect theory,” clarified that the immediate act causing the injury (there, gunshots) defines the occurrence rather than the insured’s antecedent negligence, and, critically, held the policy’s “occurrence” definition was ambiguous as applied. Because ambiguity must be construed in favor of coverage for the insured, the court counted each gunshot as a separate occurrence in that case—an outcome that favored the insured given per-occurrence limits.
Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528 (Fla. 2005): Taurus described Koikos as an ambiguity case: the Florida Supreme Court explicitly recognized “occurrence” was ambiguous there and was construed for the insured.
Maddox v. Florida Farm Bureau Gen. Ins., 129 So. 3d 1179 (Fla. 1st DCA 2014): With the same definition of “occurrence,” a dog-bite incident could be read as one or multiple occurrences; ambiguity was resolved for the insured.
Barnett v. Dep’t of Financial Services, 303 So. 3d 508 (Fla. 2020), and Guttenberg v. School Board of Broward County, 303 So. 3d 518 (Fla. 2020): While addressing sovereign immunity caps under § 768.28, the Florida Supreme Court treated mass shooting incidents—including Parkland—as a single “incident or occurrence.” Those holdings were statutory, not contractual, but they reinforced the conceptual coherence of treating such events as a single episode when a text allows.
GuideOne Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317 (11th Cir. 2005): To the extent insurers had read GuideOne to harden Koikos into a rule that each gunshot must be a separate occurrence, the panel rejected that reading. GuideOne neither discussed Koikos’s ambiguity rationale nor purported to fix a non-ambiguous rule for all shooting sprees. Later Florida Supreme Court authority (Taurus) clarified Koikos as an ambiguity case, permitting the Eleventh Circuit to align with Florida law even if GuideOne’s dicta suggested otherwise.
Shiloh Christian Ctr. v. Aspen Specialty Ins. Co., 65 F.4th 623 (11th Cir. 2023), and Washington Nat’l Ins. v. Ruderman, 117 So. 3d 943 (Fla. 2013): Florida law resolves policy ambiguities against the insurer and in favor of coverage without extrinsic evidence of the parties’ purported intent or sophistication.
Justiciability authorities: Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270 (1941); A&M Gerber Chiropractic LLC v. GEICO General Ins. Co., 925 F.3d 1205 (11th Cir. 2019); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Edwards v. Sharkey, 747 F.2d 684 (11th Cir. 1984). These cases establish that declaratory relief over insurance coverage can be ripe before any underlying judgment and that standing for declaratory relief focuses on substantial likelihood of future injury, supported at summary judgment by competent evidence.
Fee-shifting: Johnson v. Omega Ins. Co., 200 So. 3d 1207 (Fla. 2016), and Bassette v. Standard Fire Ins. Co., 803 So. 2d 744 (Fla. 5th DCA 2001). Florida’s pre-2023 fee statutes for insureds permit recovery upon an incorrect denial (or threatened denial) of benefits coupled with a judgment in favor of the insured.

Legal Reasoning

1) Justiciability and Standing

The court rejected Evanston’s claim that the Sheriff sought an advisory opinion because no underlying judgments existed and because sovereign immunity caps would allegedly preclude satisfying policy preconditions. The Eleventh Circuit emphasized:

Standing for declaratory relief requires a “substantial likelihood” of future injury, not a completed injury. The Sheriff faced 60 lawsuits arising from a single incident, had already spent over $1 million in defense costs, and was told by Evanston that the insurer had “no obligation to pay” unless multiple SIRs (one per gunshot/victim) were exhausted.
When assessing standing, courts assume the plaintiff’s merits view is correct. Assuming the Sheriff’s reading that Parkland is a single occurrence, the SIR was already met by claim expenses, which the policy expressly applies to the SIR.
The Sheriff introduced sworn evidence that the separate, annual aggregate deductible had been exhausted by judgments and settlements on other covered claims during the policy period. Evanston offered no record evidence to rebut that showing and instead relied on speculative inferences from an internal spreadsheet organized by claim number (not by occurrence). That was insufficient to create a genuine dispute at the standing stage.
Florida’s sovereign immunity caps are irrelevant to whether the SIR can be satisfied because the policy allows defense “claim expenses” to erode the SIR. And the deductible is annual and aggregate across occurrences; it need not be triggered “by Parkland alone.”

Takeaway: An insured can secure early declaratory relief on a coverage dispute when it shows a concrete, immediate, and non-speculative prospect of harm, supported by evidence of incurred defense costs and other payments that bear on policy conditions.

2) Meaning of “Occurrence” Under Florida Law

The policy’s definition—“an accident, including continuous or repeated exposure to substantially the same general harmful conditions”—is verbatim the language in Koikos. Applying Florida law:

Florida uses the “cause theory,” not the “effect theory,” to count occurrences. The focus is on the cause(s) of the injuries, not the number of victims. In shootings, Koikos recognizes that the immediate “causes” are the gunshots, not the insured’s antecedent negligence.
But that does not answer the counting question. In Koikos, the Florida Supreme Court found the “occurrence” definition ambiguous as applied; ambiguity is resolved against the insurer. There, treating each shot as a separate occurrence favored the insured given per-occurrence limits. In this case, treating the entire spree as a single occurrence favors the insured because the SIR is per occurrence. Applying the same Florida rule, the Eleventh Circuit construes the ambiguity in the insured’s favor and finds one occurrence.

Critically, the panel explains that the often-cited proposition that “each gunshot is a separate occurrence” is not a rigid rule of Florida law; it was the ambiguity-resolving outcome that happened to favor the insured in Koikos. The controlling principle is the ambiguity rule, not a one-size-fits-all counting formula.

3) No “Sophisticated Insured” Exception; No Extrinsic Evidence

Evanston urged the court to consider the Sheriff’s sophistication and extrinsic negotiation evidence to resolve the ambiguity. The Eleventh Circuit declined, citing Florida Supreme Court and its own precedent:

Florida courts resolve insurance ambiguities against the insurer and in favor of coverage without resort to extrinsic evidence (Ruderman; Shiloh Christian Center).
No Florida authority recognizes a “sophisticated insured” exception that would blunt contra proferentem in insurance cases. The Sheriff’s subject-matter sophistication is immaterial to resolving an ambiguous term.

4) Attorney’s Fees and Costs

The district court awarded fees and non-taxable costs under Fla. Stat. § 626.9373 (surplus lines) based on Evanston’s September 28, 2020 letter stating it had “no obligation to pay” unless multiple SIRs were exhausted. The Eleventh Circuit affirmed, emphasizing:

Before their 2023 repeal (applicable only to cases filed thereafter), Florida’s fee statutes mandated fee awards to insureds who prevailed by judgment against their insurers.
An insurer’s threatened or conditional denial can count as an “incorrect denial of benefits” (Bassette; Johnson). Evanston’s letter qualified, and the Sheriff obtained a favorable judgment on a dispositive coverage issue (occurrence and SIR application).

Impact and Implications

For Florida Insurance Law

Clarifies Koikos: The Eleventh Circuit, aligning with Taurus, confirms Koikos is an ambiguity case. The upshot is not that “each shot is always a separate occurrence,” but that ambiguity must be resolved in favor of the insured, which can lead to different counting outcomes depending on what best benefits the insured under the specific policy structure (limits, SIRs, deductibles).
Mass-casualty events: Where policies use the standard occurrence definition and lack clear anti-stacking or “batching” language, multi-victim events like mass shootings can be treated as a single occurrence if that reading favors the insured.
Early declaratory actions: Insureds may seek declaratory relief on coverage before underlying judgments or settlements, especially when defense spend approaches or satisfies SIRs and the insurer takes a position effectively denying benefits absent conditions the insured disputes.
No sophisticated-insured carve-out: Public entities and other institutional insureds receive the same contra proferentem protection as any insured under Florida insurance law.
Fee risk for insurers: Reservation or coverage letters asserting “no obligation to pay” unless insured meets disputed conditions can trigger fee exposure if the insured later wins a declaratory judgment on coverage.

For Policy Drafting and Underwriting

Define aggregation expressly: If an insurer intends to aggregate all harm from a single criminal episode into one “occurrence” (or the reverse), it must say so with “unambiguous language.” Consider adding “assault and battery” endorsements, “event” or “per occurrence” aggregation clauses, “series of related acts,” or “batch” provisions tailored to public-entity exposures.
Coordinate SIR and deductible texts: This case turns on the interplay between SIR erosion by “claim expenses” and an annual aggregate deductible calculated by “ultimate net loss.” Endorsements that remove “claim expenses” from “ultimate net loss” should be clear whether claim expenses can or cannot satisfy deductibles, and how payments apply across multiple claims and occurrences.
Mind the counting unit: Organize claims data by occurrence, not merely by internal claim number, to avoid evidentiary gaps when disputing aggregation at the standing or merits stages.
Reservations and denials: Draft reservation-of-rights letters carefully; categorical “no obligation to pay” statements conditioned on disputed interpretations heighten fee exposure if a court later finds coverage.

For Litigation Strategy

Insureds: If facing an insurer’s multi-occurrence position and significant defense spend, assemble proof of SIR erosion and any deductible exhaustion from other covered matters within the policy year. Seek declaratory relief early to resolve core policy interpretation disputes.
Insurers: Do not assume Koikos compels a “per victim/per shot” counting rule. Develop record evidence on what constitutes an “occurrence” rather than rely on internal claim-number accounting. Anticipate that Florida courts will apply contra proferentem without extrinsic evidence.

Complex Concepts Simplified

Occurrence: In liability insurance, “occurrence” is a counting device that can cap limits or multiply SIRs. Florida applies the “cause theory” (what caused the injuries), not the “effect theory” (how many victims). When the standard definition is used, Florida courts have repeatedly found ambiguity and resolve it in the insured’s favor.
Self-Insured Retention (SIR): A per-occurrence amount the insured must pay before the insurer has any indemnity obligation. Here, defense “claim expenses” erode the SIR, so heavy defense spend can satisfy it even without judgments or settlements.
Annual Aggregate Deductible: A separate, policy-year-wide amount applied to “ultimate net loss.” An endorsement here removed “claim expenses” from “ultimate net loss,” pointing toward judgments/settlements counting for the deductible. The Eleventh Circuit did not decide whether claim expenses also count toward the deductible; it held only that the Sheriff presented sufficient evidence that the deductible was exhausted by other claims during the policy period.
Contra Proferentem: If policy language is reasonably susceptible to more than one meaning, Florida law construes it against the insurer and in favor of coverage, without considering extrinsic evidence or insured “sophistication.”
Declaratory Judgment Standing: A plaintiff seeking declaratory relief must show a substantial likelihood of future injury. In coverage cases, courts can find justiciability before underlying judgments when defense spending and the insurer’s stated coverage position create a real, immediate, non-speculative controversy.
Fee-Shifting (pre-2023 Florida law): Under §§ 626.9373 and 627.428, insureds who obtain a favorable judgment after an insurer’s incorrect (or threatened) denial of benefits may recover reasonable attorney’s fees. The 2023 repeal applies prospectively only to cases filed after the effective date.

Conclusion

Sheriff of Broward County v. Evanston Insurance Company is a consequential clarification of Florida insurance law in the Eleventh Circuit. It reaffirms that the standard “occurrence” definition is ambiguous and must be construed to favor insureds. In a mass-casualty shooting context, that can mean the entire event is a single occurrence when that reading benefits the insured under the policy’s retention and limits structure. It also underscores that insureds can pursue declaratory relief before underlying judgments when defense costs and the insurer’s position create a concrete, immediate controversy; that Florida recognizes no “sophisticated insured” exception or resort to extrinsic evidence to resolve ambiguity; and that insurers risk fee exposure for threatened denials under Florida’s pre-2023 fee statutes.

The decision carries practical lessons for insurers and insureds alike: draft with precision if you intend to aggregate (or disaggregate) multi-victim events; align SIR, deductible, and “ultimate net loss” provisions; and marshal evidence organized by “occurrence,” not internal claim number. Most importantly, Koikos is not a per-shot counting rule; it is an ambiguity case. The controlling Florida principle is to construe unresolved ambiguity for the insured. That principle decided this case—and will likely shape future mass-tort coverage disputes governed by Florida law.