Southern-Owners Insurance Company v. MAC Contractors of Florida, LLC et al

Filing 96

ORDER denying as moot 89 Defendant's Motion for Partial Summary Judgment; denying without prejudice 90 Plaintiff's Motion for Summary Judgment. Defendant may file an amended answer, affirmative defenses, and counterclaim to the Second Amended Complaint within FOURTEEN (14) DAYS of this Order. Plaintiff may file a Reply FOURTEEN (14) DAYS thereafter. See Order for further details and amended deadlines. Signed by Judge John E. Steele on 10/3/2019. (BLW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SOUTHERN-OWNERS
COMPANY,

INSURANCE

Plaintiff,
v.

Case No:

2:18-cv-21-FtM-99MRM

MAC CONTRACTORS OF FLORIDA,
LLC
d/b/a
KJIMS
Construction,
PAUL
S.
DOPPELT, Trustee of Paul S.
Doppelt
Revocable
Trust
dated 12/08/90, and DEBORAH
A.
DOPPELT,
Trustee
of
Deborah A. Doppelt Revocable
Trust dated 12/08/90,
Defendants.
ORDER
This insurance-coverage dispute comes before the Court on
remand from the Eleventh Circuit vacating the Judgment entered by
this

Court

in

favor

of

plaintiff

Southern-Owners

Insurance

Company’s claim for declaratory judgment and against defendant MAC
Contractors of Florida, LLC on their counterclaim. (Docs. ##54,
56.)

See Southern-Owners Ins. Co. v. MAC Contractors of Florida

LLC et al., 768 F. App’x 970 (11th Cir. 2019).

The Eleventh

Circuit noted that the district court did not resolve the issue of
coverage,

and

that

plaintiff’s

arguments

regarding

two

other

exclusions barring coverage were never raised or addressed in the

district court.

Therefore, this Court vacated the judgment on May

14, 2019, and the case was reopened.

(Doc. #74.)

After the case was reopened, Southern-Owners moved for leave
to amend (under opposition) and was granted leave to file a Second
Amended Complaint.

(Docs. ## 83, 84.)

Although MAC Contractors

had initially filed a counterclaim to the Amended Complaint (Doc.
#31),

it

did

not

include

a

counterclaim

in

its

Answer

and

Affirmative Defenses to the Second Amended Complaint (Doc. #87).
Even so, MAC Contractors now moves for summary judgment (Doc. #89)
on its initial counterclaim (Doc. #31).
for summary judgment (Doc. #90).

Plaintiff has also moved

Both parties seek a declaratory

judgment as to plaintiff’s duty to defend pursuant to two almost
identical commercial general liability policies against a nowsettled state court lawsuit 1 brought by Paul and Deborah Doppelt
as trustees of their respective trusts, styled Doppelt et al. v.
MAC Contractors of Florida, LLC d/b/a KJIMS Construction, No. 2016CA-1530 (the “Doppelt Action”).
Because there is currently no operative counterclaim before
the Court, MAC Contractors’ Motion for Summary Judgment (Doc. #90)
is moot.

See Malowney v. Federal Collection Deposit Group, 193

F.3d 1342, 1345 n.1 (11th Cir. 1999) (noting that “[a]n amended

1

The Doppelt Action recently settled, and an Order of
Dismissal with Prejudice was entered in that case on September 5,
2019. (Doc. #95.)

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complaint supersedes a previously filed complaint”); Meterlogic,
Inc. v. Copier Solutions, Inc., 185 F. Supp. 2d 1292, 1297 (S.D.
Fla. 2002) (noting that the plaintiff’s filing of an amended
complaint “rendered moot the parties’ previous pleadings and the
defendants’ summary judgment and Daubert motions”).

Additionally,

MAC Contractors relies on its now-moot Motion for Summary Judgment
in response to Southern-Owners’ Motion for Summary Judgment (Doc.
#93).
In order to place this case in the correct procedural posture,
the

Court

affirmative

will

allow

defenses,

defendant
and

to

file

counterclaim

to

Complaint, after which plaintiff may reply.

an

amended

answer,

Second

Amended

the

Once the claims are

properly asserted, the parties may move for summary judgment.
This will necessitate an extension of the deadlines as set forth
below.
One final issue.

The Court previously stayed the indemnity

issue pending the Court’s determination of the duty to defend issue
or the Doppelt Action’s conclusion, reasoning that if SouthernOwners had no duty to defend MAC, it follows that Southern-Owners
has no duty to indemnify.

(Doc. #39.)

Because the Doppelt Action

has resolved, the Court informed the parties that it was inclined
to have the parties brief both the defense and indemnity issues in
their

summary

judgment

motions.

(Doc.

#94.)

The

parties

responded that despite the resolution of the Doppelt Action, the

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indemnity issue should remain stayed pending the Court’s ruling on
the duty to defend because if Southern-Owners has no duty to
defend, there would be no duty to indemnify.

While that may be

the case, in order to avoid the filing of yet another round of
summary judgment briefing in the event the Court finds there is a
duty to defend, the Court lifts the stay on the indemnity issue
and will require the parties to argue their positions on both
defense and indemnity in their summary judgment motions.

The

Court will extend the page limitations to accommodate this.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Defendant’s Motion for Partial Summary Judgment (Doc.

#89) is denied as moot.
2.

Plaintiff’s Motion for Summary Judgment (Doc. #90) is

denied without prejudice.
3.

Defendant

may

file

an

amended

answer,

affirmative

defenses, and counterclaim to the Second Amended Complaint within
FOURTEEN (14) DAYS of this Order.

Plaintiff may file a Reply

FOURTEEN (14) DAYS thereafter.
4.

The following deadlines shall apply for the remainder of

the case:
Dispositive motions (limited December 2, 2019
to 35 pages)
Meeting in person to prepare April 2, 2020
the Final Pretrial Statement

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Joint
Final
Pretrial April 9, 2020
Statement
All other motions including April 2, 2020
motions in limine and trial
briefs
Final Pretrial Conference
April 24, 2020 at 9:30 a.m.
Trial Term begins (Jury)

May 4, 2020

DONE and ORDERED at Fort Myers, Florida, this _3rd__ day of
October, 2019.

Copies:
Counsel of Record

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