Kalandra Lewis, et al v. Evanston Insurance Company

Filing

Opinion issued by court as to Appellants Christopher Lewis and Kalandra Lewis. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-15109

Date Filed: 05/24/2017

Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15109
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D.C. Docket No. 2:15-cv-00404-SPC-CM

KALANDRA LEWIS,
CHRISTOPHER LEWIS,
Plaintiffs - Appellants,
versus
EVANSTON INSURANCE COMPANY,
Defendant - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 24, 2017)
Before HULL, MARCUS and CLEVENGER, * Circuit Judges.
PER CURIAM:
*

Honorable Raymond C. Clevenger, United States Circuit Judge for the Federal Circuit,
sitting by designation.

Case: 16-15109

Date Filed: 05/24/2017

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Kalandra Lewis and Christopher Lewis (collectively, the “Lewises”) appeal
the district court’s grant of summary judgment in favor of Evanston Insurance
Company (“Evanston”).
On June 14, 2012, Kalandra Lewis suffered various injuries, including a
stroke, from a massage given to her at Serenity Spa for Total Health and
Relaxation, Inc. (“Serenity Spa”) in Lee County, Florida. Serenity Spa is a
corporation owned by Denise Vega. Hanzel Alpizar, a licensed massage therapist
at Serenity Spa, performed the massage that caused Kalandra’s injuries. Vega did
not perform the massage.
At the time Kalandra suffered her injuries, Vega held a Medical Professions
Professional Liability Policy (“the policy”) from Evanston. The policy lists Vega
individually as an insured. 1 Serenity Spa is not an insured.
Under the policy, Evanston agreed to pay all claims “by reason of any act,
error or omission in Professional Services rendered or that should have been
rendered by the Insured [Vega] and arising out of the conduct of the Insured’s
[Vega’s] Professional Services.” The policy defined Professional Services to
include “[m]assage and [r]elated [m]odalities.” Even if “rendered” could mean
done by the Insured herself or provided by the Insured, the omission or negligence
still has to arise out of the Insured’s Professional Services. Additionally, in
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The policy also lists Victory Property Management as an additional insured, but this case
does not involve that insured.
2

Case: 16-15109

Date Filed: 05/24/2017

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Exclusion B, the policy excluded coverage for “liability arising out of the insured’s
activities in his/her capacity as proprietor, superintendent, executive officer,
director, partner, trustee or employee of . . . [any] business enterprise . . . not
named as an Insured under this policy.”
In December 2012, the Lewises filed a civil action against Serenity
Spa, Vega, and Alpizar in Florida state court, alleging negligence and loss of
consortium in relation to Alpizar’s massage and to the massage injuries that
Kalandra suffered. The Lewises’ operative state court complaint included a
vicarious liability claim against Vega and alleged that Alpizar was under
Vega’s “supervision, employ, and control” when Alpizar performed the
massage.
Evanston received notice of the operative state court complaint and
the claims therein against Vega, the only named insured under the policy.
On April 21, 2014, Evanston notified Vega that it would not defend or
indemnify her, as it did not believe that the policy provided coverage for the
massage injuries caused by Alpizar or for the vicarious liability claim
alleged against Vega.

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Case: 16-15109

Date Filed: 05/24/2017

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On March 3, 2015, Vega entered into a Coblentz agreement 2 with the
Lewises. Pursuant to the agreement, Vega assigned any causes of action she
might have against Evanston to the Lewises and consented to the entry of a
$500,000.00 judgment against her. In exchange, the Lewises agreed not to
execute on the consent judgment against Vega.
On July 2, 2015, the Lewises, as Vega’s assignees, filed a civil action
against Evanston in Florida state court. Through their complaint, the
Lewises sought a declaration that the Evanston insurance policy covered the
Lewises’ vicarious liability claim against Vega for Alpizar’s negligence. The
Lewises also alleged that Evanston breached the insurance policy by
wrongly disclaiming vicarious liability coverage. On the day the Lewises
filed their complaint, Evanston removed the action to the United States
District Court for the Middle District of Florida.
Once in district court, the parties filed cross motions for summary
judgment on their competing interpretations of the Evanston insurance
policy.

2

Coblentz v. Am. Sur. Co. of N.Y., 416 F.2d 1059 (5th Cir. 1969). A Coblentz agreement
allows an insured to “enter into a reasonable settlement agreement with the [plaintiff] and
consent to an adverse judgment for the policy limits that is collectable only against the insurer.”
Perera v. U.S. Fid. & Guar. Co., 35 So. 3d 893, 900 (Fla. 2010). Florida law recognizes the
validity of such agreements. See Chomat v. N. Ins. Co. of N.Y., 919 So. 2d 535, 537 (Fla. Dist.
Ct. App. 2006).
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Case: 16-15109

Date Filed: 05/24/2017

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On June 17, 2016, the district court granted summary judgment in
favor of Evanston, concluding that the policy did not cover Vega’s vicarious
liability for the massage performed by Alpizar.
After careful review, and with the benefit of oral argument from counsel for
both parties, we find no reversible error in the district court’s order dated June 17,
2016, concluding that Evanston’s policy did not provide coverage here and
granting summary judgment in favor of Evanston.
AFFIRMED.

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