Nationwide Mutual Fire Insurance Company v. Kaloust Financial, LLC et al

Filing 47

ORDER: Nationwide's Motion to Strike 39 is GRANTED IN PART and DENIED IN PART. Nationwide's Motion for Final Summary Judgment 36 is DENIED. Stephen and Jackie Bleile's Dispositive Motion for Summary Judgment 38 is GRANTED. The Clerk is directed to enter judgment in favor of the Bleiles and against Nationwide. Signed by Judge Virginia M. Hernandez Covington on 4/9/2013. (MEB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NATIONWIDE MUTUAL FIRE INSURANCE
COMPANY,
Plaintiff,
v.

Case No.:

8:12-cv-235-T-33MAP

KALOUST FINANCIAL, LLC, ET AL.,
Defendants.
______________________________/
ORDER
This cause is before the Court pursuant to Plaintiff
Nationwide

Mutual

Fire

Insurance

Co.’s

Motion

for

Final

Summary Judgment (Doc. # 36) and Defendants Stephen and Jackie
Bleile’s Dispositive Motion for Summary Judgment (Doc. # 38),
both filed on January 11, 2013.

The parties filed responses

in opposition to the other’s motion on January 25, 2013. (Doc.
## 42, 43).

Also before the Court is Nationwide’s Motion to

Strike (Doc. # 39), filed on January 18, 2013, to which the
Bleiles filed a response in opposition on February 4, 2013
(Doc. # 46).
After due consideration and for the reasons that follow,
Nationwide’s Motion to Strike is granted in part and denied in
part, Nationwide’s Motion for Summary Judgment is denied, and
the Bleiles’ Motion for Summary Judgment is granted.
I.

Factual Background and Procedural History

Nationwide issued a Business Owners Liability Insurance
Policy

to

Defendant

Kaloust

Financial,

LLC,

Policy

No.

77BO7268003001, with effective dates of July 11, 2008, to July
11, 2009 (the “Policy”). (Doc. # 12 at ¶ 11).
On or about May 20, 2009, Defendants Stephen and Jackie
Bleile filed a wrongful death lawsuit in Missouri state court
against Defendants Kaloust Financial, Richard Kaloust,1 and
Daniel Barbosa, among others, Case No. 09WA-CC0066-01 (the
“Underlying Action”). (Id. at ¶ 9; Doc. # 12-1).

A copy of

the fourth amended complaint filed by the Bleiles is attached
to Nationwide’s Motion for Summary Judgment as Exhibit A (the
“Underlying Complaint”).

(Doc. # 36-1).

The Underlying Complaint alleges that on or about January
7, 2009, the Bleiles' son, Mitchell Bleile, was a passenger in
a vehicle operated by Barbosa, who was acting at the time as
an “agent” of Kaloust. (Id. at ¶¶ 16-17).
Underlying

Complaint,

while

approaching

According to the
an

intersection,

Barbosa intentionally disregarded a stop sign and proceeded
into

the

intersection

without

stopping,

causing

another

vehicle, driven by Perle Avery, to strike the passenger’s side

1

The parties collectively refer to Defendants Kaloust
Financial, LLC, Richard Kaloust, and the Estate of Richard
Kaloust as “Kaloust.” The Court will likewise do so hereafter.
2

of Barbosa’s vehicle. (Id. at ¶¶ 19, 20).

As a result of the

impact, Mitchell Bleile sustained serious injuries and died
from those injuries. (Id. at ¶ 21).
The Underlying Complaint alleges counts for negligence
and negligence per se against Kaloust and Barbosa and counts
for negligent

hiring,

negligent

retention,

supervision against Kaloust. (Id.).

and negligent

Kaloust and Barbosa have

sought liability coverage from Nationwide for the Underlying
Action pursuant to the Policy.
On February 3, 2012, Nationwide filed a three-count
Complaint seeking declaratory judgment against Defendants
Kaloust

Financial

LLC

and

the

Bleiles.2

(Doc.

#

1).

Nationwide filed an Amended Complaint on March 12, 2012, which
added Richard Kaloust, the Estate of Richard Kaloust, and
Daniel Barbosa as Defendants and added three counts against
Barbosa.

(Doc.

#

12).

Nationwide

asserts

that

Policy

conditions and exclusions preclude coverage for Kaloust and
Barbosa and thus relieve Nationwide of the duty to defend and
indemnify Kaloust and Barbosa in the Underlying Action.

2

(Id.

Nationwide asserts that the Bleiles are appropriately
named as Defendants in this action because the Bleiles have an
interest in any insurance coverage available to Kaloust and/or
Barbosa should the Bleiles obtain a judgment against Kaloust
and/or Barbosa in the Underlying Action. (Doc. # 12 at ¶ 14;
Doc. # 36 at 8).
3

at ¶ 12).

Specifically, the Amended Complaint alleges that

coverage is barred by the Policy’s Workers Compensation and
Similar Laws Exclusion (Counts I and IV), by the Policy’s
Employers Liability Exclusion (Counts II and V), and/or by the
Policy’s

Aircraft, Auto or Watercraft Exclusion (Counts III

and VI).

(Doc. # 12).

Nationwide seeks a declaration that it

has no duty or obligation to defend or indemnify Kaloust
and/or Barbosa in connection with the Underlying Action and
seeks an award of its costs. (Id.).
Barbosa failed to appear in this action and a Clerk’s
default was entered against him on July 31, 2012. (Doc. # 27).
Nationwide filed a Motion for Judgment on the Pleadings
on July 30, 2012. (Doc. # 24).

On December 18, 2012, the

Court entered an Order denying Nationwide’s Motion. (Doc. #
35).

Nationwide and the Bleiles filed cross Motions for

Summary Judgment on January 11, 2013. (Doc. ## 36, 38).
Thereafter, Nationwide filed a Motion to Strike several of the
depositions the Bleiles filed in support of their Motion for
Summary Judgment. (Doc. # 39).

These motions are now before

the Court.
II.

Motion to Strike
Nationwide requests the Court to strike three depositions

filed by the Bleiles in support of their Motion for Summary
4

Judgment.

Nationwide asserts that two of the depositions --

those of Defendants Richard Kaloust (Doc. ## 38-16, 38-17, 3818, 38-19, 38-20, 38-21) and Barbosa (Doc. ## 38-13, 38-14,
38-15) -- should be stricken because they were taken in the
Underlying

Action,

which

Nationwide

argues

renders

them

inadmissable hearsay in this case. Nationwide requests that a
third deposition, that of non-party Gregory Kempton (Doc. ##
38-11, 38-12), be stricken because it was conducted after the
expiration of the discovery deadline in this case.

The Court

will address each deposition below.
A.

Deposition of Richard Kaloust

Generally, “any evidence which is admissible at trial can
be used on summary judgment.”
Carletta,

46

F.

Supp.

2d

Beiswenger Enters. Corp. v.

1297,

1299

(M.D.

Fla.

1999).

“Whether to admit a deposition from a prior lawsuit is vested
in the . . . court’s sound discretion.”
Payphones,

Inc.,

256

B.R.

341,

343

In re Paramount

(Bankr.

M.D.

Fla.

2000)(citations omitted).
At the summary judgment stage, a party may rely on
deposition testimony from a separate action where the prior
case

involved

the

same

subject

matter

between

the

same

parties, or their representatives or predecessors in interest.
Fed. R. Civ. P. Rule 32(a)(8). Rule 32(a)(8) further provides
5

that “A deposition previously taken may also be used as
allowed by the Federal Rules of Evidence.”
Testimony from a prior proceeding is generally considered
hearsay under the Federal Rules of Evidence.

However, Rule

804(b)(1), Fed. R. Evid., provides that where a declarant is
unavailable as a witness, former testimony of that declarant
is not excluded by the hearsay rule if the party against whom
the testimony is now offered, or its predecessor in interest,
had an opportunity and similar motive to develop the testimony
by direct, cross, or redirect examination.

“[C]ourts have

stated that Fed. R. Civ. P. 32(a)[(8)] and Fed. R. Evid.
804(b)(1) should be construed together to resolve the question
of a deposition’s admissibility.”

Wallace v. City of Tarpon

Springs, No. 8:05-cv-979, 2007 WL 128839, at *2 (M.D. Fla.
Jan. 12, 2007)(citations omitted).
There is no dispute that Richard Kaloust’s death renders
him an unavailable witness in this case. Nationwide also does
not dispute that Kaloust’s deposition addressed the same issue
presently in dispute -- whether Mitchell Bleile and Barbosa
were employees of Kaloust.

However, Nationwide argues that

Kaloust’s prior deposition testimony should not be considered
in this case because Nationwide was not a party to the
Underlying Action and thus, it did not have the opportunity to
6

develop Kaloust’s testimony by direct, cross, or redirect
examination

as

required

for

admissibility

under

Rule

804(b)(1).
In response, the Bleiles argue that “the Bleiles . . .
may be considered predecessors in interest [to Nationwide] who
had sufficient opportunity and similar motive to develop
Kaloust’s testimony in his deposition.” (Doc. # 39).

The

Court agrees.
“The modern test does not require privity between the
current party and the party who participated in the prior
proceeding.

A previous party having like motive to develop

the testimony about the same material facts is a predecessor
in interest to the present party - privity is not the gravaman
of Rule 804(b)(1) analysis.”

Hynix Semiconductor Inc. v.

Rambus, Inc., 250 F.R.D. 452, 458 (N.D. Cal. 2008)(quoting
Jones, Rosen, Wegner & Jones, RUTTER GROUP PRACTICE GUIDE:
FEDERAL CIVIL TRIAL & EVIDENCE ¶ 8:3061 (The Rutter Group
2007)).

Thus, the Bleiles may be deemed a predecessor in

interest to Nationwide for purposes of Rule 804(b)(1) if they
had a similar motive to develop Kaloust’s testimony in the
Underlying Action about the same material facts presently in
dispute in this case.

7

In this action, Nationwide seeks a declaration that
certain Policy provisions preclude coverage for the Underlying
Action. The applicability of the relevant provisions turns on
whether Bleile and Barbosa were employees of Kaloust.

The

operative complaint in the Underlying Action (Doc. # 36-1)
indicates that the Bleiles seek to hold Kaloust vicariously
liable under the doctrine of respondeat superior, which would
necessarily require a determination of whether Barbosa was an
employee, agent, or independent contractor of Kaloust.

See

Blunkall v. Heavy & Specialized Haulers, Inc., No. SD 31526,
2013 WL 1194845 (Mo. App. S.D. Mar. 25, 2013)(“The distinction
between

‘agent,’ ‘servant,’ ‘employee,’ and ‘independent

contractor’ is important because it determines liability.

An

employer is liable under the theory of respondeat superior for
damages attributable to the misconduct of an employee or agent
acting within the course and scope of the employment or
agency. . . . [L]iability of an independent contractor cannot
flow from a theory of respondeat superior.”).3

Thus, the

Court determines that the Bleiles’ counsel had a sufficiently
similar motive to, and did in fact, question Kaloust in depth

3

As the Underlying Action is pending in Missouri state
court, the Court presumes that Missouri law would apply to
this issue.
8

regarding the same material facts of Barbosa’s and Bleile’s
employment status with Kaloust, such that Kaloust’s prior
deposition testimony, on this issue at least, will be allowed
in this case.
Alternatively, even if the Bleiles cannot be considered
“predecessors in interest” to Nationwide, the Court concludes
that Kaloust’s former testimony would fall under the hearsay
residual

exception

provided

by

Rule

807,

Fed.

R. Evid.4

Because Kaloust’s prior testimony was given under oath, it has
equivalent circumstantial guarantees of trustworthiness as if
it had been given under oath in this case; it is offered as
evidence of the material facts of Barbosa’s and Bleile’s
employment status with Kaloust; and it is more probative on
this issue than any other evidence.

Finally, the Court

determines that admitting Kaloust’s former testimony will best
serve the purposes of these rules and the interests of justice

4

Rule
807
provides
that
“[u]nder
the
following
circumstances, a hearsay statement is not excluded by the rule
against hearsay even if the statement is not specifically
covered by a hearsay exception in Rule 803 or 804: (1) the
statement has equivalent circumstantial guarantees of
trustworthiness; (2) it is offered as evidence of a material
fact; (3) it is more probative on the point for which it is
offered than any other evidence that the proponent can obtain
through reasonable efforts; and (4) admitting it will best
serve the purposes of these rules and the interests of
justice.”
9

in this case.

Accordingly, Nationwide’s Motion to Strike the

deposition of Richard Kaloust is denied.
B.

Deposition of Daniel Barbosa

Nationwide also seeks to strike the Bleiles’ filing of
Barbosa’s deposition that was conducted in the Underlying
Action.

Unlike Richard Kaloust, however, Barbosa remains

available as a witness in this case and was in fact deposed
again in this case.
Noting that Barbosa testified in this case that his
memory was affected by the accident, the Bleiles argue that
“Barbosa’s lack of memory renders him an unavailable witness
for this testimony’s subject matter.”

(Doc. # 46 at 6).

The

Court is not convinced.
Rule 804(a)(3), Fed. R. Evid., provides that a declarant
is considered unavailable as a witness if he “testifies to not
remembering the subject matter.”

In his deposition for the

present case, Barbosa testified that he did not remember
receiving interrogatories in the Underlying Action because
“[his] memory is not what you would call great.” (Doc. # 38-9
at 22). Barbosa continued, explaining that he experienced some
“brain injury” as a result of the accident which significantly
affected his memory, and that “[t]here is a big chunk of [his]
life that [he] do[esn’t] recall at all.”
10

(Id.).

While this

testimony reflects that Barbosa may have experienced some
memory loss in general, it does not rise to the level of
constituting testimony that Barbosa does not remember the
subject matter of this action.

To the contrary, Barbosa

testified at length in his deposition in this case regarding
his employment status with Kaloust.
Accordingly, the Court determines that Barbosa is not an
unavailable party, such that his deposition given in the
Underlying Action is not admissible under Rule 804(b)(1) in
this

case.

Furthermore,

the

Court

determines

that

the

deposition does not fall under the hearsay residual exception
because it is not more probative on the point for which it is
offered

than

any

other

evidence,

given

that

Barbosa’s

deposition in this case and live testimony at trial are likely
more or at least equally probative on the relevant issue.
Thus, the Court grants Nationwide’s Motion to Strike Barbosa’s
former testimony and will not consider it in the Court’s
summary judgment analysis.

However, to the extent that any

particular statements within the deposition may be admissible
under other Rules of Evidence -- as a prior inconsistent
statement given under oath for example -- the Court will
determine such issues on an individual basis if and when they
arise at trial.
11

C.

Deposition of Gregory Kempton

Finally, Nationwide requests the Court to strike the
deposition of Kempton taken in this case based on the fact
that it was conducted on January 3, 2013, three days after the
December 31, 2012, discovery deadline in this case.
In response, the Bleiles explain that:
Kempton’s deposition was set multiple times before
the discovery deadline, but was postponed in order
to accommodate Mr. Kempton and his attorney.
Counsel for Nationwide explicitly agreed to the
January 3 date, without giving any indication that
it would object to the deposition’s admissibility
until after the start of the deposition.
If
counsel for Nationwide had not explicitly agreed to
the date, or had indicated in advance that it
intended to object as taking place after the
discovery deadline, then Defendants could have
ensured that the deposition took place earlier. As
it stands, Nationwide had months of advance notice
that Defendants intended to take this deposition,
agreed to the deposition date, and has not been
prejudiced at all by the fact that the deposition
took [place] three days after the discovery
deadline.
(Doc. # 46 at 2-3).
The Court takes case management deadlines seriously and
expects all parties to do likewise and conscientiously abide
by them.

The Court furthermore requires any party who needs

a deadline extension to first request and receive permission
from the Court for the extension; agreements between the
parties are insufficient to alter a case management deadline.

12

See Rule 16(b)(4), Fed. R. Civ. P. (“A schedule may be
modified only for good cause and with the judge’s consent.”).
Thus, the Court does not condone the Bleiles’ failure to
request an extension of the discovery deadline from the Court
prior to conducting Kempton’s deposition after the deadline.
Nonetheless, “[t]he purpose of a discovery cutoff date is
to protect the parties from a continuing burden of producing
evidence

and

to

assure

them

adequate

time

to

prepare

immediately before trial.” Whittaker Corp. v. Execuair Corp.,
736

F.2d

1341,

1347

(9th

Cir.

1984).

Generally,

“[a]

discovery cutoff date does not, however, affect admissibility
of evidence obtained outside of the discovery process of the
case in which the cutoff is ordered.” Id.

Accordingly, given

the circumstances of Kempton’s deposition described above,
including the fact that the deposition was rescheduled several
times to accommodate the non-party witness and was conducted
just

three

days

after

the

discovery

cutoff,

and

that

Nationwide agreed to the date, the Court determines that
striking the deposition is a severe sanction not warranted in
this case. Therefore, Nationwide’s Motion to Strike is denied
as to Kempton’s deposition.
III. Motions for Summary Judgment
A.

Legal Standard
13

Summary judgment is appropriate "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."
Civ. P. 56(a).

Fed. R.

A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment.

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)).

A fact is material if

it may affect the outcome of the suit under the governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).

The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).

“When a moving party has discharged

its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
14

answers to interrogatories, and admissions on file,’ designate
specific facts showing that there is a genuine issue for
trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 59394 (11th Cir. 1995)(citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to be
true and all reasonable inferences must be drawn in the nonmoving party’s favor.

Shotz v. City of Plantation, Fla., 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment.

Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988)(citing Augusta Iron & Steel
Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
B.

The Duty to Defend and the Duty to Indemnify

Under Florida law, which the Court applies in this
diversity case, the duty to defend is broader than the duty to
indemnify.

Sinni v. Scottsdale Ins. Co., 676 F. Supp. 2d

1319, 1323 (M.D. Fla. 2009).

The decision of whether an

insurer has a duty to defend “is determined solely by the
claimant’s complaint if suit has been filed.” Higgins v. State
15

Farm Fire & Cas. Co., 894 So. 2d 5, 9-10 (Fla. 2004).

An

insurer’s duty to defend against a legal action is triggered
“when the complaint alleges facts that fairly and potentially
bring the suit within policy coverage.” Jones v. Fla. Ins.
Guar. Ass’n, Ins., 908 So. 2d 435, 442-43 (Fla. 2005).
In contrast to the duty to defend, the duty to indemnify
is not determined by reference to the claimant’s complaint,
but rather by reference to the actual facts and circumstances
of the injury.

Underwriters at Lloyds London v. STD Enters.,

395 F. Supp. 2d 1142, 1147 (M.D. Fla. 2005).

In this context,

insurance contracts are to be construed in a manner
that is reasonable, practical, sensible, and just.
. . . Terms used in a policy are given their plain
and ordinary meaning and read in the light of the
skill
and
experience
of
ordinary
people.
Provisions that exclude or limit liability of an
insurer are construed more strictly than provisions
that provide coverage.
United States Fire Ins. Co. v. Freedom Vill. of Sun City Ctr.,
279 F. App’x 879, 880-81 (11th Cir. 2008)(internal citations
omitted). Furthermore, if provisions in an insurance contract
are “reasonably susceptible of more than one meaning, they are
ambiguous and construed in favor of the insured.

That rule

applies if a genuine inconsistency, uncertainty, or ambiguity
in meaning remains after a review of the plain language.” Id.
at 881.

16

C.

The Policy’s Relevant Provisions

The Policy provides, in pertinent part, as follows:
B. Exclusions
1.

Applicable to Business Liability Coverage
This insurance does not apply to:
* * *
d.

Workers’
Laws

Compensation

and

Similar

Any obligation of the insured under
a workers’ compensation, disability
benefits
or
unemployment
compensation law or any similar law.
e.

Employer’s Liability
“Bodily Injury” to:
(1)

An “employee” of the insured
arising out of and in the
course of:
(a)

Employment
insured; or

by

the

(b)

Performing duties related
to the conduct of the
insured’s business;

* * *
This exclusion applies:
(a)

Whether the insured may
be liable as an employer
or in any other capacity;
and

17

(b)

To
any
obligation to
share damages with or
repay someone else who
must pay damages because
of the injury.

* * *
g.

Aircraft, Auto Or Watercraft
“Bodily injury” or “property damage”
arising
out
of
the
ownership,
maintenance, use or entrustment to
others of any aircraft, “auto” or
watercraft owned or operated by or
rented or loaned to any insured. Use
includes operations and “loading and
unloading.”

(Doc. # 38-2 at 21, 23)(emphasis in original).

The Policy

additionally provides:
C. Who Is An Insured
* * *
2.

Each of the following is also an insured:
a.

Your “employees” . . . but only for
acts within the scope of their
employment
by
you
or
while
performing duties related to the
conduct of your business. However,
none of these “employees” is an
insured for:
(1)

“Bodily injury”
injury”:
(a)

or

“personal

To you, . . . or to
a
co-“employee”
while
that
co“employee” is either
in the course of his
18

or her employment or
performing
duties
related
to
the
conduct
of
your
business.
(Doc. # 38-3 at 3-4)(emphasis in original).
The Policy defines “employee” as follows:
F. Liability and Medical Expenses Definitions
* * *
5.

“Employee” includes a “leased worker.”
“Employee” does not include a “temporary
worker.”

(Id. at 6)(emphasis in original).
D.

Applicability of the Policy’s Exclusions
1.

Employer’s Liability Exclusion

By its terms, the Policy does not apply to bodily injury
to an “employee” of the insured arising out of and in the
course of employment by the insured or performing duties
related to the conduct of the insured’s business. (Doc. # 38-2
at 21). Thus, the applicability of the exclusion depends upon
whether

Mitchell

Bleile

was

an

“employee”

of

Kaloust.

Nationwide asserts that Bleile was an employee of Kaloust,
while the Bleiles aver that he was not.
The Policy’s definition of “employee” provides only that
the term “employee” includes a “leased worker” but does not
include a “temporary worker.” (Doc. # 38-3 at 6).
19

There is no

dispute that Bleile was not a “leased worker” nor a “temporary
worker” as those terms are defined by the Policy.
The Underlying Complaint does not include any allegations
regarding Mitchell Bleile’s employment status with Kaloust.
In their Answer filed in this case, the Bleiles have admitted
only “that Mitchell Bleile was . . . an ‘agent’ of Richard
Kaloust

and

Kaloust

Financial,

LLC,

as

that

term

is

understood, acting in the course and scope of that agency at
the time of the subject accident.” (Doc. # 14 at ¶ 17).
However,

nowhere

does

the

Underlying

Complaint,

nor

Nationwide’s Amended Complaint, allege that Bleile was an
employee of Kaloust.
As

the

Court

has

previously

determined

in

denying

Nationwide’s Motion for Judgment on the Pleadings, allegations
of a general principal-agent relationship are insufficient to
establish an employer-employee relationship, because the terms
“agent” and “employee” are not interchangeable under Florida
law.

Rather, an “‘employee’ is a subspecies of agent ‘whose

principal controls or has the right to control the manner and
means of the agent’s performance of work.’

Thus, ‘employee’

is a narrower category than ‘agent.’” Estate of Miller v.
Thrifty Rent-A-Car Sys., Inc., 637 F. Supp. 2d 1029, 1037

20

(M.D. Fla. 2009)(quoting Restatement (Third) of Agency §
7.07(3)(a)).
Thus,

the

question

becomes

whether

Bleile

may

be

considered an “employee” of Kaloust under the plain and
ordinary meaning of that term based on the facts and evidence
presented in this case.

Under Florida law, to determine

whether a person is an employee or an independent contractor,
a court considers the following factors:
(a)
(b)
(c)

(d)
(e)
(f)
(g)
(h)
(i)
(j)

the extent of control which, by the agreement,
the master may exercise over the details of
the work;
whether or not the one employed is engaged in
a distinct occupation or business;
the kind of occupation, with reference to
whether, in the locality, the work is usually
done under the direction of the employer or by
a specialist without supervision;
the
skill
required
in
the
particular
occupation;
whether the employer or the workman supplies
the instrumentalities, tools, and the place of
work for the person doing the work;
the length of time for which the person is
employed;
the method of payment, whether by the time or
by the job;
whether or not the work is part of the regular
business of the employer;
whether or not the parties believe they are
creating the relationship of master and
servant; and
whether the principal is or is not in
business.

Victoria Select Ins. Co. v. RCVR Logistics Corp., No. 1123976-CIV,

2012

WL

5818142,
21

at

*3

(S.D.

Fla.

Nov.

15,

2012)(citing Kane Furniture Corp. v. Miranda, 506 So. 2d 1061,
1063 (Fla. 2d DCA 1987)).
The Bleiles assert, and the Court agrees, that Nationwide
has failed to demonstrate that Mitchell Bleile was an employee
of Kaloust.

All of Nationwide’s arguments in its Motion and

response, and the evidence Nationwide has filed in support,
are focused on Barbosa’s employment relationship with Kaloust,
not Bleile’s.

Indeed, Nationwide relies heavily on Barbosa’s

deposition testimony (Doc. # 37-1), in which Barbosa testified
that Kaloust hired, trained, and supervised him, in support of
its contention that Barbosa was an employee of Kaloust. (Doc.
# 36 at 16-18). However, whether Barbosa was an employee of
Kaloust is irrelevant to the issue of whether the Employer’s
Liability Exclusion applies, because the exclusion applies
only if Bleile was an employee of Kaloust.
Barbosa’s deposition testimony -- the only evidence filed
by Nationwide in support of its Motion -- is insufficient to
create a genuine issue of material fact regarding Bleile’s
employment status.

The deposition mentions Bleile only a

handful of times, including testimony that Bleile was working
out of one of Kaloust’s offices (Doc. # 37-1 at 26:8, 40:1718) and that Richard Kaloust directed Barbosa to take Bleile

22

on the trip during which the accident occurred (Id. at 39:1321, 44:15-17).
However, the evidence supplied by the Bleiles in support
of their Motion establishes that Bleile was not an employee of
Kaloust.

In his deposition in the Underlying Action, Richard

Kaloust was specifically questioned about Mitchell Bleile’s
employment status with Kaloust Financial and testified as
follows:
Q:
A:
Q:
A:
Q:
A:
Q:

A.

On January 7th of 2009, what was the
relationship between Mitch Bleile and Kaloust
Financial, LLC?
There is no relationship.
Okay. Is it true that on January 7th of 2009,
Mitchell Bleile was not an agent of Kaloust
Financial, LLC?
Correct. He was not an agent.
Okay. Is it true, sir, that on January 7th of
2009, Mitch Bleile was not an employee of
Kaloust Financial, LLC?
Correct.
He was not an employee of Kaloust
Financial.
And as a corporate represent (sic) of Kaloust
Financial, LLC, is it your testimony that
there was no agency, employment or business
relationship between Mitch Bleile and Kaloust
Financial, LLC, on January 7th of 2009?
Correct.

(Doc. # 38-17 at 79:11-80:4).
at

the

time

of the

Kaloust further explained that

accident,

Mitchell Bleile

was

under

“precontract” with American United Life, meaning “in general
terms that he is in training to eventually become a career
agent.”

(Id. at 107:2-3, 14, 17-18).
23

Kaloust testified that

Bleile was hired by an American United Life career agent,
Christopher Labadie, who was working out of Kaloust’s offices
at that time, and that Bleile was given a cubicle in Kaloust’s
offices to work out of. (Id. at 108:25-109:9, 109:25-110:2).
Kaloust explained that Bleile went on the trip to Missouri
with Barbosa to gain more experience after Kaloust personally
asked him if he would like to go.
However,

Kaloust

did

not

pay

for

(Id. at 114:10-13).
the

trip

expenses

and

informed Bleile that he would be responsible for the costs of
the trip.

(Id. at 116:4-7). Finally, Kaloust testified that

his company never provided any health insurance or other
insurance benefits or workers’ compensation coverage to any of
the

insurance

agents

including Bleile.

working

out

of

Kaloust’s

offices,

(Id. at 117:25-118:16).

Nationwide has not introduced any evidence to refute
Kaloust’s sworn testimony that Bleile was not an employee of
Kaloust at the time of the accident.

Nationwide has not

introduced any other evidence such as tax forms, employment
contracts, or the like, which call into question the accuracy
of Kaloust’s assertions.

Simply, Nationwide has not provided

any evidence which raises a genuine issue of material fact as
to Bleile’s employment status with Kaloust based on the
factors outlined above.

Accordingly, the Court finds that
24

Nationwide has failed to meet its burden of proving the
applicability of the Policy’s Employer’s Liability Exclusion
and that the Bleiles have shown as a matter of law that the
exclusion does not apply based on the facts of this case.
Thus, the Court grants summary judgment on this issue in favor
of the Bleiles.
2.

Workers’
Exclusion

Compensation

and

Similar

Laws

Nationwide also seeks a summary judgment determination
that the Policy’s Workers’ Compensation and Similar Laws
Exclusion precludes coverage for the claims in the Underlying
Action, while the Bleiles request a ruling that the exclusion
is inapplicable to the Underlying Action.

The Court agrees

with the Bleiles.
The Policy states that the insurance “does not apply to
.

.

.

any

obligation

of

the

insured

under

a

workers’

compensation, disability benefits or unemployment compensation
law or any similar law.”

(Doc. # 38-2 at 21).

However,

Nationwide has not supplied any evidence suggesting that the
Bleiles are seeking to recover in the Underlying Action any
amounts Kaloust may owe Bleile under any workers’ compensation
or similar law.

Rather, the Underlying Complaint seeks

damages only for Kaloust’s alleged negligence resulting in

25

their son’s wrongful death.

Nationwide has not provided any

evidence indicating that the Bleiles have sought or received
any workers’ compensation benefits from Kaloust separate and
apart from the Underlying Action. Furthermore, Nationwide has
not supplied any evidence establishing that the Bleiles would
in fact be entitled to recover workers’ compensation benefits
on their son’s behalf from Kaloust were they to file such a
claim.

Indeed, Richard Kaloust testified in the Underlying

Action that Kaloust did not provide any workers’ compensation
coverage for Mitchell Bleile. (Doc. # 38-17 at 120:1-4).
Furthermore, as discussed above, Nationwide has failed to
establish that Bleile was even an employee of Kaloust, a
requirement for recovering any workers’ compensation benefits
from Kaloust under Missouri law. See State ex rel. Tri-County
Elec.

Co-op.

Ass’n

v.

Dial,

192

S.W.

3d

708,

711

(Mo.

2006)(“As to the employer, the only two questions to determine
whether workers’ compensation applies are whether the injured
person was an employee and whether the injury occurred ‘by
accident

arising

out

of

and

in

the

course

of

.

.

.

employment.’”).
“When an insurer relies on an exclusion to deny coverage,
it has the burden of demonstrating that the allegations of the
complaint are cast solely and entirely within the policy
26

exclusion

and

are

interpretation.”

subject

to

no

other

reasonable

Acosta, Inc. v. Nat’l Union Fire Ins. Co.,

39 So. 3d 565, 574 (Fla. 1st DCA 2010)(citations omitted).
Nationwide has failed to carry its burden here.
allegations

in

the

Underlying

Complaint

Rather, the

establish

that

Kaloust’s potential liability to the Bleiles arises only from
the third-party, wrongful death negligence claims they have
brought against Kaloust, and not from any obligation under a
workers’ compensation or similar law.

As Nationwide has

failed to create a genuine issue of material fact as to the
applicability

of

the

Policy’s

Workers’

Compensation

and

Similar Laws Exclusion, the Court determines that summary
judgment against Nationwide and in favor of the Bleiles is
appropriate.
3.

Aircraft, Auto or Watercraft Exclusion

The Bleiles also seek a summary judgment finding that the
Policy’s Aircraft, Auto or Watercraft Exclusion does not apply
to preclude coverage for the claims in the Underlying Action.
(Doc. # 46 at 8-16).

Counts III and VI of the Amended

Complaint allege the applicability of the exclusion (Doc. # 12
at ¶¶ 20-21, 26-27) and Nationwide previously argued in its
Motion for Judgment on the Pleadings that the exclusion was
applicable. (Doc. # 24 at 21).
27

Pursuant to this exclusion, the Policy does not provide
coverage for any bodily injury arising out of the use of an
automobile that is owned or operated by an insured. (Doc. #
38-2 at 23). Again, the Policy includes Kaloust’s “employees”
in

the

definition

limitations.

of

an

insured,

(Doc. # 38-3 at 3).

with

certain

notable

Specifically, the Policy

provides that Kaloust’s “employees” are not insureds for
“‘Bodily injury’ or ‘personal injury’ . . . to a co-‘employee’
while that co-‘employee’ is either in the course of his or her
employment or performing duties relating to the conduct of
your business.” (Id. at 4).
In its Order denying Nationwide’s Motion for Judgment on
the

Pleadings,

the

Court

determined

that

the

Underlying

Complaint alleged only that Barbosa was an agent of Kaloust
and not an “employee” as required for the exclusion to apply.
(Doc. # 35 at 14-15).

The Court also noted that Nationwide

failed to address the Policy’s limitation on the definition of
an insured, stating that:
[I]t may be the case that even if Bleile and
Barbosa were deemed to be “employees” of Kaloust
under the Policy as argued by Nationwide, the
above-quoted provision could apply to remove
Barbosa from the definition of an “insured,” which
in turn would render the Policy’s Aircraft, Auto or
Watercraft Exclusion inapplicable.

28

(Id. at 13 n.6).
Now on summary judgment, Nationwide does not include any
arguments advocating the applicability of the exclusion and
does not address the Bleiles’ arguments against the exclusion
in its response to their Motion. Thus, Nationwide appears to,
and effectively has, abandoned its reliance on and contention
that the Policy’s Aircraft, Auto or Watercraft Exclusion
applies in this case.
As explained above, under Florida law, “[t]he burden
rests on the insurer to show that exclusions in a policy
apply.”

Westport Ins. Corp. v. VN Hotel Grp., LLC, No. 11-

14883, 2013 WL 1196957, at *2 (11th Cir. Mar. 22, 2013).

It

is only after an insurer has proven the applicability of an
exclusion does the burden return to the insured to prove the
applicability

of

any

exception

to

the

exclusion.

Mid-

Continent Cas. Co. v. Frank Casserino Const., Inc., 721 F.
Supp. 2d 1209, 1215 (M.D. Fla. 2010).
By

declining

to

present

any

arguments

or

evidence

regarding the Policy’s Aircraft, Auto or Watercraft Exclusion
and by failing to respond to the Bleiles’ arguments on the
issue, the Court finds that Nationwide has failed to satisfy
its

burden

exclusion.

of

demonstrating

the

applicability

of

the

Thus, the Court need not address the Bleiles’
29

arguments

in

opposition

to

the

exclusion

in

light

of

Nationwide’s failure to meet its initial burden of proof.
Accordingly, the Court determines that Nationwide has
failed to satisfy its burden of proving that the Policy’s
Aircraft, Auto or Watercraft Exclusion applies in this case.
Therefore,

summary

judgment

in

the

Bleiles’

favor

is

appropriate on this issue.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Nationwide’s Motion to Strike (Doc. # 39) is GRANTED IN
PART and DENIED IN PART.

(2)

Nationwide’s Motion for Final Summary Judgment (Doc. #
36) is DENIED.

(3)

Stephen

and

Jackie

Bleile’s

Dispositive

Motion

for

Summary Judgment (Doc. # 38) is GRANTED.
(4)

The Clerk is directed to enter judgment in favor of the
Bleiles and against Nationwide.
DONE and ORDERED in Chambers in Tampa, Florida this 9th

day of April, 2013.

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Copies to: All Counsel of Record

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