Safeco Insurance Company of Illinois et al v. Tremblay et al

Filing 94

ORDER granting in part and denying in part 78 Plaintiffs Safeco Insurance Company of Illinois and Safeco Insurance Company of America's Motion for Summary Judgment. a. The motion is GRANTED as to Counts I and II. b. The motion is DENIED as to Count III. c. The Court DISMISSES without prejudice Count III for lack of jurisdiction. Plaintiffs are DIRECTED to move for default judgment as to the remaining defendants or, alternatively, dismiss them on or before May 14, 2018. The Clerk is DIRECTED to terminate all pending motions and deadlines. Signed by Judge Sheri Polster Chappell on 5/7/2018. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SAFECO INSURANCE COMPANY OF
ILLINOIS and SAFECO INSURANCE
COMPANY OF AMERICA,
Plaintiffs,
v.

Case No: 2:16-cv-837-FtM-38CM

JOSEPH A. TREMBLAY, CODY
JAMES MORRISON, ROMARRIO
ANTHONY SCOTT, RAQUEL
MARIA NUNEZ, JULIE LIPPSON
and STEVEN LIPPSON,
Defendants.
/
OPINION AND ORDER1
Pending before the Court is a Motion for Summary Judgment filed by Plaintiffs
Safeco Insurance Company of Illinois (“Safeco Illinois”) and Safeco Insurance Company
of America (“Safeco America”).

(Doc. 78).

Only Defendant Cody James Morrison

opposes their motion (Doc. 82), to which Plaintiffs have replied (Doc. 85).2 For the
following reasons, the Court grants in part and denies in part Plaintiffs’ motion.

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not affect the opinion of the Court.
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The Clerk of Court has entered Entry of Defaults against the remaining defendants.
(Doc. 47, Doc. 61, Doc. 70, Doc. 77). But Plaintiffs have not moved for final default
judgment.

BACKGROUND
Plaintiffs bring this declaratory judgment suit to resolve an insurance coverage
dispute. The facts are largely undisputed. In July 2015, Defendant Joseph Tremblay
leased a Nissan Rogue for Defendant Julie Lippson. About nine months later, on April
16, 2016, Julie’s husband was driving the Rogue when he allegedly caused an accident
that injured Morrison. (Doc. 78 at ¶ 7). Morrison sued Tremblay and Julie’s husband for
negligence in state court.3 (Doc. 78-13). That underlying suit remains ongoing.
Before the accident, Safeco Illinois issued Tremblay two car insurance policies that
covered specific cars he owned and named Tremblay and Louise Wilcox as the rated
drivers. (Doc. 78 at ¶¶ 1-2; Doc. 78-2; Doc. 78-3). It also issued Tremblay a motorcycle
insurance policy for specific motorcycles he owned and named him as the only rated
driver. (Doc. 78 at ¶ 3; Doc. 78-4). In addition to the car and motorcycle policies, Safeco
America issued Tremblay an umbrella insurance policy that, among other things, required
him to provide underlying liability insurance for all motor vehicles he owned, leased, or
used. (Doc. 78 at ¶ 4; Doc. 78-4 at 6). The above insurance policies were in effect at the
time of the April 2016 accident. Important here, Tremblay never added the Rogue to any
policy. Nor did he tell Safeco Illinois and Safeco America about the leased Rogue until
about two weeks after the accident. (Doc. 78 at ¶ 6).
Plaintiffs bring this three-count action under the Declaratory Judgment Act (the
“Act”), 28 U.S.C. § 2201. (Doc. 59). In Counts I and II, Safeco Illinois seeks a declaration
that Tremblay’s car and motorcycle policies do not cover claims from the April 2016

Morrison’s underlying state action pending in the Twentieth Judicial Circuit in and for
Charlotte County, Florida is styled as Cody J. Morrison v. Seth Tyler Lippson and Joseph
A. Tremblay, No. 16001316CA.
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accident, and thus it has no duty to defend or indemnify Tremblay or any defendant. (Doc.
59 at ¶¶ 44-80). In Count III, Safeco America wants a declaration that the umbrella policy
provides limited indemnity coverage only for Tremblay’s liability from the accident. It also
wants the Court to declare, “Safeco’s (and Tremblay’s) payment obligations will be limited
because Florida’s financial responsibility law caps the vicarious liability claims against
Tremblay” to specific amounts. (Doc. 78 at 2; Doc. 59 at ¶¶ 81-99).
Plaintiffs now move for summary judgment on all counts. Morrison opposes the
motion, focusing solely on Safeco America’s duty to indemnify Tremblay under the
umbrella policy.
STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56. The moving party bears the burden of showing that no genuine
issues of material fact remain. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A
genuine dispute of material fact exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).

To defeat summary judgment, the non-movant must “go beyond the

pleadings, and present affirmative evidence to show that a genuine issue of material fact
exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006) (citation omitted).
In reviewing a motion for summary judgment, the court views the evidence and all
reasonable inferences drawn from the evidence in the light most favorable to the nonmovant. See Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006). But “[a] court
need not permit a case to go to a jury . . . when the inferences that are drawn from the

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evidence, and upon which the non-movant relies, are ‘implausible.’” Mize v. Jefferson
City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996) (citation omitted).
DISCUSSION
A. Car and Motorcycle Policies (Counts I and II)
Safeco Illinois argues it has no duty to defend Tremblay (and the Lippsons) in
Morrison’s underlying state suit because Tremblay’s car and motorcycle policies do not
cover bodily injury or property damage claims arising from the April 2016 accident.
According to Safeco Illinois, no coverage exists because Tremblay never insured the
Rogue under the policies and the Lippsons are not “insureds.” (Doc. 78 at 6-11). No
Defendant, including Morrison, challenges Safeco Illinois’ arguments on Counts I and II.
(Doc. 82 at 5-6).
After careful review of the insurances policies and applicable law, the Court finds
Safeco Illinois to be right. The car and motorcycle policies issued to Tremblay do not
cover any claims arising from the April 2016 accident. (Doc. 78-2, Doc. 78-3, Doc. 78-4).
Consequently, Safeco Illinois has no duty to defend Tremblay, the Lippsons, or anyone
else under these policies. And because there is no duty to defend, there is no duty to
indemnify. See Northern Assurance Co. of Am. v. Custom Docks by Seamaster, Inc.,
No. 8:10-cv-1869-T-27MAP, 2011 WL 117046, at *2 (M.D. Fla. 2011) (“If it is determined
that [an insurer] has no duty to defend its insured, then there would be no corresponding
duty to indemnify.” (citation omitted)).

The Court thus grants Plaintiffs’ motion for

summary judgment as to Counts I and II.

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B. Umbrella Policy (Count III)
Safeco America admits it has a duty to defend Tremblay under the umbrella
insurance policy: “Safeco America is defending Tremblay under the umbrella policy.
There is no declaration necessary on this issue.” (Doc. 78 at 4 n.15). This admission is
important because it means that Safeco America’s duty to indemnify Tremblay is the only
question at issue for summary judgment. See Northland Cas. Co. v. HBE Corp., 160 F.
Supp. 2d 1348, 1360 (M.D. Fla. 2001) (stating an insurer’s duty to indemnify and duty to
defend are distinct concepts under Florida law); Admiral Ins. Co. v. Spira, No. 6:08-cv1772-ORL-22DAB, 2010 WL 11507122, at *4 (M.D. Fla. Mar. 31, 2010) (“An insurer’s
duty to defend is broader then its duty to indemnify” (citation omitted)). This admission is
also important because it precludes summary judgment – because Morrison’s state court
action is ongoing, Safeco America’s quest for a declaration on indemnification is not ripe
for review.4 See Atain Specialty Ins. Co. v. Sanchez, No. 8:17-cv-1600-T-23AEP, 2018
WL 1991937, at *1-2 (M.D. Fla. Apr. 27, 2018) (“The duty to indemnify is determined ‘by
the underlying facts adduced at trial or developed through discovery during litigation’”
(citation omitted)).
The Act grants federal courts discretion to “declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further relief is
or could be sought.” 28 U.S.C. § 2201(a); see also Wilton v. Seven Falls Co., 515 U.S.
277, 286-87 (1995) (stating the Supreme Court has “repeatedly characterized the . . . Act
as ‘an enabling Act, which confers a discretion on the courts rather than an absolute right

Safeco America has produced no evidence that Morrison’s state court suit has settled,
ended in a judgment, or otherwise been resolved.
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upon the litigant” (internal quotation marks and citations omitted)). To prevent an advisory
opinion, a declaratory judgment must resolve actual “Cases” or “Controversies” per Article
III of the United States Constitution. U.S. Const. art. 3, § 2. The case or controversy
requirement means, “under the facts alleged, there must be a substantial continuing
controversy between parties having adverse legal interests.” Emory v. Peeler, 756 F.2d
1547, 1552 (11th Cir. 1985) (citations omitted). “[T]he continuing controversy may not be
conjectural, hypothetical, or contingent; it must be real and immediate, and create a
definite, rather than speculative threat of future injury . . . . The remote possibility that a
future injury may happen is not sufficient to satisfy the ‘actual controversy’ requirement
for declaratory judgments.” Id. (internal and other citations omitted). In other words,
courts may only decide ripe issues. See Atain Specialty, 2018 WL 1991937, at *2 (“The
jurisdictional and prudential components of the ripeness doctrine protect ‘federal courts
from engaging in speculation or wasting their resources through the review of potential or
abstract disputes.’” (quoting Dig. Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th
Cir. 1997))). “The ripeness inquiry requires a determination of (1) the fitness of the issues
for judicial decision, and (2) the hardship to the parties of withholding court consideration.”
Id. (citation omitted).
Count III is not ripe for the Court’s review because Safeco America seeks to define
its duty to indemnify before the state court imposes liability on Tremblay (or anyone else).
See J.B.D. Const., Inc. v. Mid-Continent Cas. Co., 571 F. App’x 918, 927 (11th Cir. 2014)
(“The duty to indemnify is dependent upon the entry of a final judgment, settlement, or a
final resolution of the underlying claims.”); Northland Cas., 160 F. Supp. 2d at 1360
(“Because an insurer’s duty to indemnify is dependent on the outcome of the case, any

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declaration as to the duty to indemnify is premature unless there has been a resolution of
the underlying claim.” (citations omitted)). With the state court case ongoing, Safeco
America is concerned about a future injury that is neither real nor concrete. If Tremblay
is found not liable in the state court case then Safeco America need not indemnify him.
Safeco America thus wants the Court to issue a declaration on its duty to indemnify in the
potential event that Tremblay is liable. This request amounts to nothing more than an
advisory opinion of the parties’ respective rights and liabilities. See Watermark Constr.,
L.P. v. Southern-Owners Ins. Co., No. 6:17-cv-1814-Orl-40TBS, 2018 WL 1305913, at *6
(M.D. Fla. Mar. 13, 2018) (finding that a request for a declaration before a finding of
liability is “nothing more than a request for an impermissive advisory opinion”). “[I]t is not
the function of a United States District Court to sit in judgment on these nice and intriguing
questions which today may readily be imagined, but may never in fact come to pass.”
Am. Fid. & Cas. Co. v. Pa. Threshermen & Farmers’ Mut. Cas. Ins. Co., 280 F.2d 453,
461 (5th Cir. 1960).5
Other courts have similarly declined to decide indemnification before an underlying
state court action ends. See Atain Specialty, 2018 WL 1991937, at *2 (dismissing unripe
requests for a declaratory judgment where an insurance company “aspire[d] to define the
duty to indemnify before the imposition of liability on the insured”); Interstate Fire & Cas.
Co. v. McMurry Constr. Co., Inc., No. 6:16-cv-841-Orl-41TBS, 2017 WL 821746, at *3-4
(M.D. Fla. Mar. 2, 2017) (dismissing a declaratory judgment action because no immediate
controversy or impending injury could be determined until after the underlying state court

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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to October 1, 1981.

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claim was resolved). What is more, Plaintiffs have not articulated what, if any hardships,
they will suffer if the declaratory claim is not decided until after Tremblay’s liability is
determined.

At best, Plaintiffs state that settlement may be facilitated if the Court

determines the parties’ rights under the contract. This argument is not persuasive.
“Although clarification of the indemnity question might expedite a settlement, that
uncertain prospect must yield to the benefits of dismissal.” Atain Specialty, 2018 WL
1991937, at *3 (footnote and citations omitted).
In short, Safeco America’s duty to indemnify issue is not ripe and “prudence
strongly disfavors resolving the unripe question of [this] duty[.]”

Id. at *2 (citations

omitted). The Court, therefore, denies Plaintiffs’ motion for summary judgment on Count
III and dismisses the count without prejudice for lack of jurisdiction.
C. Defaulted Defendants
As noted, all Defendants but Morrison have failed to appear in this action and that
failure has resulted in the entry of Clerk’s defaults. (Doc. 47, Doc. 61, Doc. 70, Doc. 77).
Although resolving a motion for final default judgment would have been inappropriate
before the Court deciding the instant motion for summary judgment, the time has come
for Plaintiffs to seek final default judgment as to Defendants Tremblay, Romarrio Scott,
Raquel Nunez, Julie Lippson, and Steven Lippson.
Accordingly, it is
ORDERED:
(1) Plaintiffs Safeco Insurance Company of Illinois and Safeco Insurance
Company of America’s Motion for Summary Judgment is GRANTED in part
and DENIED in part.

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a. The motion is GRANTED as to Counts I and II.
b. The motion is DENIED as to Count III.
c. The Court DISMISSES without prejudice Count III for lack of
jurisdiction.
(2) Plaintiffs are DIRECTED to move for default judgment as to the remaining
defendants or, alternatively, dismiss them on or before May 14, 2018.
(3) The Clerk is DIRECTED to terminate all pending motions and deadlines.
DONE and ORDERED in Fort Myers, Florida this 7th day of May 2018.

Copies: All Parties of Record

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