Nationwide Mutual Fire Insurance Company v. Kaloust Financial, LLC et al
Filing
55
ORDER: Nationwide's Motion for Clarification 49 is GRANTED and the Court's April 9, 2013, Order 47 as it regards the parties' Motions for Summary Judgment is superseded and amended as detailed herein. Nationwide's Motion for F inal Summary Judgment 36 is DENIED as to coverage for the Kaloust Defendants and GRANTED as to coverage for Daniel Barbosa. Stephen and Jackie Bleile's Dispositive Motion for Summary Judgment 38 is GRANTED. The Clerk is directed to enter an amended Judgment as detailed herein. Signed by Judge Virginia M. Hernandez Covington on 6/26/2013. (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
Clarification (Doc. # 49), filed on April 12, 2013, requesting
clarification of the Court’s Order entered on April 9, 2013
(Doc. # 47).
In that Order, the Court granted in part and
denied in part Nationwide’s Motion to Strike (Doc. # 39),
denied Nationwide’s Motion for Final Summary Judgment (Doc. #
36),
and
granted
Defendants
Stephen
and
Jackie
Bleile’s
Dispositive Motion for Summary Judgment (Doc. # 38).
The
Defendants have not filed a response to Nationwide’s Motion
for Clarification, and the time for doing so has now elapsed.
After
due
consideration,
Nationwide’s
Motion
for
Clarification is granted, and the Court’s April 9, 2013, Order
as to the parties’ Motions for Summary Judgment is superseded
and amended as detailed herein.1
For the reasons that follow,
Nationwide’s Motion for Summary Judgment is granted in part
and denied in part, 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; Doc. # 12-2).
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,2 and Daniel
Barbosa,
among
others,
Case
No.
09WA-CC0066-01
“Underlying Action”). (Doc. # 12 at ¶ 9; Doc. # 12-1).
(the
A copy
1
Nationwide’s Motion for Clarification does not address
or seek clarification of the Court’s Order as it relates to
Nationwide’s Motion to Strike. Thus, the Court’s April 9,
2013, Order as to Nationwide’s Motion to Strike stands as
issued, and to prevent redundancy, is not reproduced herein.
In sum, the Court granted the Motion to Strike as to the
former testimony given by Barbosa in the Underlying Action,
denied the Motion as to the deposition testimony given by
Kaloust in the Underlying Action, and denied the Motion as to
the deposition testimony given by Gregory Kempton in this
case. (Doc. # 47 at 5-13).
2
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
unless otherwise indicated.
2
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. (Id. at ¶¶ 16-17).
to
the
Underlying
Complaint,
while
According
approaching
an
intersection, Barbosa intentionally disregarded a stop sign
and proceeded into the intersection without stopping, causing
another vehicle to strike the passenger’s side of Barbosa’s
vehicle. (Id. at ¶¶ 19, 20).
As a result of the impact,
Mitchell Bleile sustained serious injuries and subsequently
died from those injuries. (Id. at ¶ 21).
The Underlying Complaint alleges that at the time of the
accident, Barbosa was acting as an “agent” of Kaloust. (Id. at
¶ 17). The Underlying Complaint alleges counts for negligence
and negligence per se against Kaloust and Barbosa and counts
for negligent
hiring,
negligent
retention,
and negligent
supervision against Kaloust. (Id. at 4-15).
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 in this Court seeking declaratory judgment against
3
Defendants Kaloust Financial LLC and the Bleiles.3 (Doc. # 1).
Each “count” consists of a Policy exclusion which Nationwide
contends precludes coverage. (Id.).
Nationwide filed an
Amended Complaint on March 12, 2012, which added Richard
Kaloust,
the
Defendants
Estate
and
added
of
Richard
identical
Kaloust,
Policy
and
Barbosa
as
exclusion “counts”
against Barbosa. (Doc. # 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).
(Id.).
Thus, Nationwide seeks a declaration that it has no
duty to defend Kaloust and/or Barbosa in the Underlying Action
and has no duty to indemnify Kaloust and/or Barbosa for any
damages awarded to the Bleiles in the Underlying Action,
whether by judgment, verdict, settlement, or compromise. (Id.
at 15, 19, 23, 26, 29-30, 33).
3
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).
4
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.
35).
(Doc. #
Nationwide and the Bleiles filed Motions for Summary
Judgment on January 11, 2013. (Doc. ## 36, 38). These motions
are now before the Court.
II.
Legal Standard
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.
5
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,
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
6
Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856 (11th
Cir. 1988)).
III. Analysis
A.
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
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.
7
Provisions that exclude or limit liability of an
insurer are construed more strictly than provisions
that provide coverage.
U.S. 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.
B.
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:
8
(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
(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. # 12-2 at 20, 22)(emphasis in original).
additionally provides:
C. Who Is An Insured
9
The Policy
1.
If you are designated in the Declarations
as:
* * *
c.
A limited liability company, you are
an insured. Your members are also
insureds, but only with respect to
the conduct of your business. Your
managers are insureds, but only with
respect to their duties as your
managers.
* * *
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
or her employment or
performing
duties
related
to
the
conduct
of
your
business.
(Id. at 25-26)(emphasis in original).
The Policy defines “employee” as follows:
F. Liability and Medical Expenses Definitions
* * *
10
5.
“Employee” includes a “leased worker.”
“Employee” does not include a “temporary
worker.”
(Id. at 28)(emphasis in original).
C.
Applicability of the Policy’s Exclusions
1.
Employer’s Liability Exclusion
By its terms quoted above, 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. (Id.
at 20).
Thus, the applicability of this 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.” (Id. at 28).
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,
11
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
(M.D. Fla. 2009)(quoting Restatement (Third) of Agency §
7.07(3)(a)).
Under Florida law, to determine whether a person is an
employee or an independent contractor, a court considers the
following factors:
(1)
(2)
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;
12
(3)
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;
(4) the
skill
required
in
the
particular
occupation;
(5) whether the employer or the workman supplies
the instrumentalities, tools, and the place of
work for the person doing the work;
(6) the length of time for which the person is
employed;
(7) the method of payment, whether by the time or
by the job;
(8) whether or not the work is part of the regular
business of the employer;
(9) whether or not the parties believe they are
creating the relationship of master and
servant; and
(10) whether the principal is or is not in
business.
Cantor v. Cochran, 184 So. 2d 173, 174 (Fla. 1966); Univ.
Dental Health Ctr., Inc. v. Agency for Workforce Innovation,
89 So. 3d 1139, 1140-41 (Fla. 4th DCA 2012); Victoria Select
Ins. Co. v. RCVR Logistics Corp., No. 11-23976-CIV, 2012 WL
5818142, at *3 (S.D. Fla. Nov. 15, 2012)(citing Kane Furniture
Corp. v. Miranda, 506 So. 2d 1061, 1063 (Fla. 2d DCA 1987)).4
4
The Court acknowledges that “the question of an
employer/employee relationship is generally a question of
fact, and therefore a question for the trier of fact.” Pate
v. Gilmore, 647 So. 2d 235, 236 (Fla. 1st DCA 1994). However,
“[t]here are of course circumstances in which the undisputed
facts will demonstrate the nonexistence of an employment
relationship as a matter of law and thereby establish the
proper basis for granting summary judgment. Thus, if the only
reasonable view of the evidence compels the conclusion that an
employment relationship did not exist, a court may determine
the issue as a matter of law.” Harper ex rel. Daley v. Toler,
13
“It has been said that the extent of control is the most
important
factor
in
determining
whether
a
person
is
an
independent contractor or an employee.” Kane Furniture Corp.,
506 So. 2d at 1064 (citations omitted). “If a person is
subject to the control or direction of another as to his
results only, he is an independent contractor; if he is
subject to control as to the means used to achieve the
results, he is an employee.” Id. (citation omitted). “Whether
the requisite degree of control is present can be resolved on
summary judgment where the evidence is clear, undisputed, and
capable of only one determination.”
Mais v. Gulf Coast
Collection Bureau, Inc., No. 11-61936-CIV, 2013 WL 1899616, at
*13
(S.D.
Fla.
May
8,
2013)(citing
Johnson
v.
Unique
Vacations, Inc., 498 F. App’x 892, 894 n.3 (11th Cir. 2012)).
Nationwide does not present any evidence establishing
that Mitchell Bleile was an employee of Kaloust based on the
factors outlined above. Indeed, all of Nationwide’s arguments
884 So. 2d 1124, 1129 (Fla. 2d DCA 2004)(citations omitted).
As set out herein, the Court determines that such situation is
present in this case. Moreover, the Florida Supreme Court has
expressly held that declaratory judgment statutes authorize a
court to decide a liability insurer’s obligations to defend
and coverage for indemnity even when it is necessary to decide
issues of fact in order to determine the declaratory judgment.
Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5, 9 (Fla.
2004).
14
in its Motion and response, and the evidence Nationwide has
filed
in
support,
are
focused
on
Barbosa’s
relationship with Kaloust, not Bleile’s.
employment
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 (Barbosa Dep. Doc. # 37-1 at
8, 11) and that Richard Kaloust directed Barbosa to take
Bleile on the trip during which the accident occurred (Id. at
11, 12).
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:
15
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.
(Kaloust Dep. Doc. # 38-17 at 2).
Kaloust further explained
that at the time of the 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 9).
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 9-10).
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.
(Id. at 11).
However, Kaloust did not pay for the trip
expenses and informed Bleile that he would be responsible for
16
the costs of the trip. (Id.). 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 12).
Nationwide has not introduced any evidence to refute
Kaloust’s sworn testimony indicating 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 that raises a genuine issue of
material fact as to whether Bleile was an employee of Kaloust
based on any of the factors outlined above, including the most
important factor of the extent of control.
Rather, the
evidence shows that Kaloust did not exercise the necessary
degree of control, or any control, over Bleile as required to
show an employer-employee relationship.
Accordingly, based
on the evidence supplied in this case, the Court determines
that Bleile was not an employee of Kaloust, and, thus, the
Policy’s Employer’s Liability Exclusion does not apply to
preclude coverage for the claims in the Underlying Action.
17
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. # 12-2 at 20).
However,
Nationwide has not supplied any evidence suggesting that the
Bleiles are seeking to recover in the Underlying Action any
amounts
from
similar law.
Kaloust
under
any
workers’
compensation
or
Rather, the Underlying Complaint seeks damages
only for Kaloust’s alleged negligence resulting in 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 be entitled to recover
18
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. (Kaloust Dep. Doc. # 38-17 at 12).
Moreover, as
discussed above, Nationwide has failed to establish that
Bleile was even an employee of Kaloust, a requirement for
recovering workers’ compensation benefits from Kaloust.
See
Fink v. Fink, 64 So. 2d 770, 771 (Fla. 1953)(“The employeremployee relationship is implicit in the whole scheme of the
Workmen’s Compensation Law . . . .”); Hamilton v. Shell Oil
Co., 215 So. 2d 21, 22 (Fla. 4th DCA 1968)(“[T]he relationship
of employer-employee is essential to liability for workmen’s
compensation benefits.”); State ex rel. Tri-County. Elec. Coop. 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
exclusion
and
are
subject
19
to
no
other
reasonable
interpretation.”
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.
Thus,
the
Court
determines that the Policy’s Workers’ Compensation and Similar
Laws Exclusion does not apply to preclude coverage in this
case.
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).
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. # 12-2 at 22).
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).
20
However, 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
of
demonstrating
the
applicability
of
the
exclusion. Thus, the Court need not discuss the merits of the
Bleiles’ arguments in opposition to the exclusion in light of
21
Nationwide’s failure to meet its initial burden of proof.
Accordingly, the Court finds that the Policy’s Aircraft, Auto
or Watercraft Exclusion does not apply to preclude coverage in
this case.
D.
Duty to Defend and/or Indemnify Kaloust
The Policy’s insuring agreement provides that Nationwide
“will
pay
those
sums
that
the
insured
becomes
legally
obligated to pay as damages because of ‘bodily injury,’
‘property damage,’ ‘personal injury’ or ‘advertising injury’
to which [the] insurance applies.” (Doc. # 12-2 at 18).
Furthermore, Nationwide “will have the right and duty to
defend the insured against any ‘suit’ seeking those damages.”
(Id.).
There is no dispute that Kaloust is the named insured on
the Policy and that the claims in the Underlying Action
trigger coverage under the Policy.
(Id. at 2).
As explained
above, none of the Policy exclusions invoked by Nationwide
apply
to
preclude
coverage
in
this
case.
Accordingly,
pursuant to the unambiguous terms of the Policy, the Court
determines that Nationwide does have a duty to defend Kaloust
in the Underlying Action and to indemnify Kaloust for any sums
Kaloust becomes legally obligated to pay as damages in the
Underlying Action.
Thus, the Bleiles’ Motion for Summary
22
Judgment
is
granted
and
Nationwide’s
Motion
for
Summary
Judgment is denied as to coverage for Kaloust.
E.
Duty to Defend and/or Indemnify Barbosa
Pursuant to the Policy’s insuring agreement provision
quoted above, Nationwide has a duty to defend and indemnify
Barbosa in the Underlying Action only if Barbosa qualifies as
an “insured” under the Policy.
Again, the named insured in
the Policy’s Declarations is “Kaloust Financial LLC.” (Id.).
Regarding who is an insured, the Policy provides, in pertinent
part, as follows:
C. Who Is An Insured
1.
If you are designated in the Declarations
as:
* * *
c.
A limited liability company, you are
an insured. Your members are also
insureds, but only with respect to
the conduct of your business. Your
managers are insureds, but only with
respect to their duties as your
managers.
* * *
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. . . .
(Id. at 25-26).
23
There is no dispute that Barbosa was not a member or
manager of Kaloust Financial LLC.
Thus, Barbosa qualifies as
an insured under the Policy only if he is an “employee” of
Kaloust.
The Policy’s definition of “employee” states only
that the term “employee” includes a “leased worker” but does
not include a “temporary worker.” (Id. at 28).
dispute
that
Barbosa
was
not
a
“leased
There is no
worker”
nor
a
“temporary worker” as those terms are defined by the Policy.
(Id.).
The Underlying Complaint alleges only that Barbosa and
Kaloust were “engaged in a principal-agent relationship” at
the time of the accident. (Doc. # 12-1 at ¶ 23).
noted
above
determined
that
relationship
employee
regarding
Bleile,
allegations
are
of
insufficient
relationship,
the
a
to
because
Court
However, as
has
previously
general principal-agent
establish
the
terms
an
employer-
“agent”
and
“employee” are not interchangeable under Florida law. (Doc. #
47 at 20)(quoting Estate of Miller, 637 F. Supp. 2d at 1037).
Thus, the Underlying Complaint is not illuminative on the
issue of whether Barbosa was an employee of Kaloust.
It
is
of
course
“well-settled
in
Florida
that
an
insurer’s duty to defend an action against its putative
insured is determined by the allegations of the plaintiff’s
24
[underlying] complaint.” Fed. Ins. Co. v. Applestein, 377 So.
2d
229,
exception
231
(Fla.
must
be
3d
DCA
made
1979).
in
However,
those
“an
obvious
instances
where,
notwithstanding allegations in the petition to the contrary,
. . . the alleged insured is not in fact an insured under the
policy.” Nateman v. Hartford Cas. Ins. Co., 544 So. 2d 1026,
1027 (Fla. 3d DCA 1989).
As explained further in Nateman:
The insurer is not obligated to provide a defense
for a stranger merely because the plaintiff alleges
that the defendant is an insured or alleges facts
which, if true, would make the defendant an
insured. The mere allegations of the plaintiff’s
petition may not create an obligation on the part
of the insurer to defend where no such obligation
previously existed. . . . While we acknowledge the
viability of the general rule that the allegations
of the complaint determine an insurer’s duty to
defend, it would be imprudent and illogical to
confer such a duty upon an insurer as to a party
who is not an insured. . . . [T]he creation of the
basic insurer-insured relationship and the ensuing
duty to defend cannot be left to the imagination of
the drafter of a complaint, and as to who is an
insured, the facts as they actually exist must be
determinative.
Id. (emphasis in original)(citations omitted).
This case presents the exact circumstances for which the
exception articulated in Nateman was created.
Here, as
analyzed in depth below, the facts establish that Barbosa was
not an employee of Kaloust; thus, Barbosa does not qualify as
an insured under the Policy’s terms.
25
As such, Nationwide
should not be required to provide a defense or indemnity for
Barbosa,
a
stranger
to
the
Policy,
merely
because
the
Underlying Complaint nebulously describes his relationship
with Kaloust as a “principal-agent relationship.” (Doc. # 12-1
at ¶ 23).
Courts have applied this exception in situations in which
an underlying plaintiff purposely omits a crucial fact in the
underlying complaint in an attempt to “plead into coverage.”
See Wilson ex rel. Estate of Wilson v. Gen. Tavern Corp., 469
F. Supp. 2d 1214, 1220-21 (S.D. Fla. 2006)(finding no duty to
defend when the underlying plaintiff deliberately failed to
mention a fact in order to “plead into coverage”).
However,
the Nateman exception is perhaps even more appropriate here
where the drafters of the Underlying Complaint, the Bleiles,
do not appear to have been attempting to “plead into coverage”
with their choice of language in the Underlying Complaint. To
the contrary, the Bleiles actually acknowledge and argue in
this case that “[b]ecause he was not an employee, Barbosa
cannot constitute an ‘insured’ under the Policy . . .” (Doc.
# 38 at 14-15).
Accordingly, the Court finds it appropriate to look
beyond the Underlying Complaint to the facts of the case to
26
determine whether Barbosa was a Kaloust employee, and, thus,
an insured under the Policy.
Richard
Kaloust
testified
in
his
deposition
in
the
Underlying Action that at the time of the accident he was a
licensed insurance salesman working as a general agent for
American United Life Insurance Company and Barbosa was working
as a career agent for American United Life. (Kaloust Dep. Doc.
# 38-17 at 1-2).
Kaloust explained that Kaloust Financial,
LLC was the name of the business through which he ran his
agency. (Id. at 2). Kaloust’s “General Agent’s Contract” with
American United Life provides that “the General Agent may
recruit, train, and supervise agents and brokers for [American
United Life] in Florida.” (Doc. # 38-7 at 2).
Kaloust
testified that Kaloust Financial “housed” approximately ten
American United Life career agents, including Barbosa, who had
an office in and worked out of Kaloust’s facility. (Kaloust
Dep. Doc. # 38-16 at 8, 12).
Barbosa’s “Career Agent’s Contract” with American United
Life states that “the Agent is now and shall in the future be
an independent contractor of [American United Life].
Nothing
contained in this contract shall be construed to create the
relationship of employer and employee between [American United
Life] and the Agent.” (Doc. # 38-6 at 2).
27
Furthermore,
Barbosa’s contract states that “the Agent shall not enter into
an employment contract or agreement with any individual or
organization while he is a[n] Agent without the prior written
approval of [American United Life].”
(Id.).
The record does not contain any evidence of a written
employment contract entered into between Kaloust and Barbosa,
nor
any
evidence
indicating
that
American
United
Life
authorized Barbosa to enter into such an employment agreement
with Kaloust.
Nevertheless, even if the record reflected an
employment or independent contractor agreement between Kaloust
and Barbosa, any “descriptive labels employed in agreements
are not determinative as to the actual legal relationship
between the parties.” Breed Techs., Inc. v. AlliedSignal,
Inc., 861 So. 2d 1227, 1232 (Fla. 2d DCA 2003).
Rather, as previously noted, the Florida Supreme Court
has adopted the test outlined in the Restatement (Second) of
Agency § 220 for determining whether a person is an employee
or an independent contractor based on a list of ten nonexclusive factors.5
See Cantor, 184 So. 2d at 174; Univ.
5
Again, these factors are: (1) the extent of control
which, by the agreement, the master may exercise over the
details of the work; (2) whether or not the one employed is
engaged in a distinct occupation or business; (3) the kind of
occupation, with reference to whether, in the locality, the
work is usually done under the direction of the employer or by
28
Dental Health Ctr, Inc., 89 So. 3d at
1140-41.
Comment (h)
to Restatement § 220 provides guidance in interpreting these
factors:
The relation of [employer] and [employee] is
indicated by the following factors: an agreement
for close supervision or de facto close supervision
of the servant’s work; work which does not require
the services of one highly educated or skilled; the
supplying of tools by the employer; payment by hour
or month; employment over a considerable period of
time with regular hours; full time employment by
one employer; employment in a specific area or over
a fixed route; the fact that the work is part of
the regular business of the employer; the fact that
the community regards those doing such work as
servants; the belief by the parties that there is
a[n] [employer] and [employee] relation; an
agreement that the work cannot be delegated.
Restatement (Second) of Agency § 220, cmt. h.
“In
addition
to
the
factors
enumerated
in
the
Restatement, the ‘provision of employee benefits’ has been
recognized as a factor militating in favor of a conclusion
that an employment relationship exists.” Harper ex rel. Daley,
a specialist without supervision; (4) the skill required in
the particular occupation; (5) whether the employer or the
workman supplies the instrumentalities, tools, and the place
of work for the person doing the work; (6) the length of time
for which the person is employed; (7) the method of payment,
whether by the time or by the job; (8) whether or not the work
is part of the regular business of the employer; (9) whether
or not the parties believe they are creating the relationship
of master and servant; and (10) whether the principal is or is
not in business. Kane Furniture Corp., 506 So. 2d at 1063
(citing Restatement (Second) of Agency § 220).
29
884 So. 2d at 1131 (quoting Cmty. for Creative Non-Violence v.
Reid, 490 U.S. 730, 752 (1989)).
The Court will analyze this
factor along with each of the Restatement factors below.
(1)
The extent of control which, by the agreement,
the master may exercise over the details of
the work
“It has been said that the extent of control is the most
important
factor
in
determining
whether
a
person
is
an
independent contractor or an employee.” Kane Furniture Corp.,
506 So. 2d at 1064 (citations omitted). “If a person is
subject to the control or direction of another as to his
results only, he is an independent contractor; if he is
subject to control as to the means used to achieve the
results, he is an employee.” Id. (citation omitted). “Whether
the requisite degree of control is present can be resolved on
summary judgment where the evidence is clear, undisputed, and
capable of only one determination.”
Mais, No. 11-61936-Civ,
2013 WL 1899616, at *13 (citing Johnson, 498 F. App’x at 894
n.3).
Regarding the extent of control Kaloust Financial held
over Barbosa,
Kaloust
testified
that
Kaloust Financial
provided education and training through American United Life
to its career agents, including Barbosa.
# 38-16 at 15; # 38-17 at 3-4).
30
(Kaloust Dep. Doc.
However, Kaloust testified
that
Kaloust
Financial
did
not
schedule
Barbosa’s
appointments, make Barbosa’s travel arrangements, or pay for
his trip expenses.
(Kaloust Dep. Doc. # 38-17 at 7, 11).
Indeed, Barbosa testified in his own deposition that he
created and controlled his itinerary and that while on a trip,
he could vary from his itinerary as needed.
(Barbosa Dep.
Doc. # 37-1 at 25).
Moreover, Kaloust testified that he recommended that the
career agents set 8 to 12 appointments per week in order to be
successful, but there was no minimum requirement for the
number of appointments the career agents were required to
conduct per week. (Kaloust Dep. Doc. # 38-16 at 17-18). While
Kaloust would provide some appointment “leads” to the career
agents, the career agents would also purchase and provide
their own leads.
(Id. at 17; Doc. # 38-17 at 7).
Additionally, Kaloust explained that career agents were
free to sell insurance policies for other companies besides
American United Life and, as such, Barbosa also sold insurance
policies for “Prudential and Avalon.” (Kaloust Dep. Doc. # 3816 at 9, 12).
According to Kaloust, he did not earn a
commission directly from the sales of the career agents, but
would receive an “override” for any policies sold for American
United Life or through an affiliated brokerage firm called
31
Ashe. (Id. at 11-13).
Thus, according to Kaloust, he would
not receive any compensation for the policies that Barbosa
sold for Prudential.
(Id. at 12).
Additionally, Kaloust’s General Agent’s Contract with
American United Life did not allow Kaloust the authority to
hire or terminate career agents, but, rather, provides that
American United Life “shall have the sole right to determine
when an agent or broker is under the recognized supervision of
the General Agent.”
(Doc. # 38-7 at 2).
Based on the evidence detailed above, including the fact
that Kaloust did not control Barbosa’s sales schedule or
number of appointments, did not pay for Barbosa’s expenses,
and could not terminate Barbosa, coupled with the fact that
Barbosa was free to sell policies for other companies for
which Kaloust would not receive any compensation, the Court
determines that Kaloust did not possess the requisite degree
of control over Barbosa to establish an employer-employee
relationship.
(2)
Whether or not the one employed is engaged in
a distinct occupation or business
According to Kaloust’s sworn testimony, Kaloust Financial
employed only four other people besides Kaloust, who all
worked in various general administrative capacities, including
32
reception,
filing,
organization,
and
(Kaloust Dep. Doc. # 38-16 at 6-7).
evidence,
including Barbosa’s
office
management.
In contrast, the record
Career
Agent’s
Contract
in
particular, shows that Barbosa signed a contract and was
engaged in business as an insurance career agent for American
United Life. Thus, the Court find that Barbosa was engaged in
a distinct occupation, which supports a finding that he was an
independent contractor and not a Kaloust employee.
(3)
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 record evidence does not shed light on this point
regarding whether an insurance career agent in this locality
would usually work under the direction of an employer or
whether one would normally be considered a specialist who
would work without supervision.
(4)
The
skill
occupation
required
in
the
particular
Unskilled labor is typically performed by employees while
skilled labor is often performed by independent contractors.
Restatement (Second) of Agency § 220, cmt. i. According to
Kaloust’s testimony, in order to become a career agent, an
individual
would
first
have
to
study
for
and
pass
the
appropriate state tests to obtain an insurance sales license
33
and then would have to earn a certain minimum level of sales
commissions.
(Kaloust
Dep.
Doc.
#
38-17
at
10-11).
Furthermore, career agents were provided various types of
training, including training related to acquiring prospects,
insurance products, sales, and regulations. (Kaloust Dep. Doc.
# 38-16 at 18; Doc. # 38-17 at 3-4). Additionally, qualified
agents could attend a “Fast Start Academy” at One America’s
home office to learn the “ins and outs” of One America over a
three day period. (Kaloust Dep. Doc. # 38-17 at 4).
Based on this evidence, it appears that working as a
career agent required some level of training and skill, which
generally
weighs
relationship.
against
finding
an
employer-employee
However, the level of required training does
not appear high enough, nor is the level of necessary skill
specialized enough, to be clearly indicative of an independent
contractor relationship.
Accordingly, the Court finds that
this factor stands in equipoise on the issue.
(5)
Whether the employer or the workman supplies
the instrumentalities, tools, and the place of
work for the person doing the work
Here, the evidence shows that Kaloust Financial provided
career
agents,
including
Barbosa,
with
an
office,
desk,
limited administrative support, “supplies, . . . materials,
applications, paper, pens, . . . prospectuses, all One America
34
products
and
guidelines,”
and
occasionally
(Kaloust Dep. Doc. # 38-16 at 8, 15).
sales
leads.
However, career agents
were required to pay for their own expenses (Kaloust Dep. Doc.
# 38-17 at 11); thus, Barbosa used his own computer and his
own car for his sales trips and paid for air fare, hotels,
gas, and food (Barbosa Dep. Doc. # 37-1 at 29).
Thus, while
Kaloust provided the place of work and some administrative
supplies, the evidence shows that Barbosa supplied a much
greater portion of the tools and instrumentalities for his
work.
Therefore, this factor militates in favor of finding
that Barbosa was an independent contractor.
(6)
The length of time for which the person is
employed
At the time of the accident in January of 2009, Barbosa
had been working as a career agent out of Kaloust Financial’s
office for nearly four years, since March or April of 2005.
(Id. at 20).
As noted in Comment (h) to Restatement § 220,
employment over a considerable period of time favors a finding
of an employee-employer relationship. While four years is not
insignificant, the Court finds that it is not so considerable
as to definitively indicate an employer-employee relationship.
Thus, this factor is neutral.
(7)
The method of payment, whether by the time or
by the job
35
According to Kaloust, Kaloust Financial did not pay the
career
agents,
otherwise;
including
rather,
Barbosa,
Barbosa
would
for
their
receive
a
sales
or
percentage
commission from American United Life for any sales he made of
its products. (Kaloust Dep. Doc. # 38-16 at 10). Barbosa also
testified that any commission checks he received came from
American United Life or One America and not from Kaloust
Financial.
(Barbosa
Dep.
Doc.
#
37-1
at
22,
23).
Additionally, the Bleiles have filed copies of Barbosa’s W-2
Wage and Tax Statement forms for each year from 2007 to 2009,
which reflect American United Life as Barbosa’s employer and
wage provider. (Doc. # 38-8 at 2, 4, 6).
Accordingly,
because
the
evidence
establishes
that
Kaloust did not pay Barbosa for the work he performed as a
career agent, this factor militates against a finding of an
employer-employee relationship between the two.
(8)
Pursuant
Whether or not the work is part of the regular
business of the employer
to
Kaloust’s
General
Agent’s
Contract with
American United Life, in addition to recruiting career agents
and training them to sell insurance policies, Kaloust himself
was
required
to
“solicit
applications
for
the
Company’s
individual and group life, health, and annuity policies and
36
contracts, both personally and through the efforts of his
agents and brokers.”
(Doc. # 38-7 at 3).
Thus, the evidence
shows that the work done by Barbosa in selling insurance
policies was part of the regular business of Kaloust, which
weighs in favor of finding an employer-employee relationship.
(9)
Whether or not the parties believe they are
creating the relationship of master and
servant
Kaloust testified consistently as to his belief that
Barbosa was an independent contractor of American United Life
and not a Kaloust employee. (Kaloust Dep. Doc. # 38-16 at 8,
9, 11, 18, 19; Doc. # 38-17 at 2, 5).
Conversely, Barbosa
maintained during his deposition his belief that Kaloust was
his employer. (Barbosa Dep. Doc. # 37-1 at 5, 8-10, 13-14, 1718, 20).
However, Barbosa eventually explained that this
conclusion was based on Barbosa’s belief that, because Kaloust
was his supervisor, he was therefore necessarily Barbosa’s
employer. (Id. at 24).
Notably, however, when Barbosa was
asked if he agreed that “Mr. Kaloust just worked for the same
company as you, but you felt like he was your boss within the
company,” Barbosa replied affirmatively. (Id.). Accordingly,
the evidence on this factor tends to show that Kaloust and
Barbosa did not believe they were creating an employeremployee relationship with one another.
37
(10) Whether the principal is or is not in business
As stated in Kane Furniture Corp., “the relevance of this
factor is obscure, but for what it is worth, [Kaloust] is in
business.” 506 So. 2d at 1066 (quoting D.O. Creasman Elecs. v.
State Dep’t of Labor & Emp’t Sec., 458 So. 2d 894, 898 (Fla.
2d DCA 1984)). However, given the ambiguous relevance of this
factor, the Court will consider it neutral.
(11) Provision of employee benefits
Regarding the additional factor of the “provision of
employee benefits,” which Florida courts have “recognized as
a
factor
militating
in
favor
of
a
conclusion
that
an
employment relationship exists,” Harper ex rel. Daley, 884 So.
2d at 1131, Barbosa testified that Kaloust did not provide any
benefits to Barbosa including a 401-K or pension, insurance,
vacation pay, sick leave, disability insurance or worker’s
compensation insurance. (Barbosa Dep. Doc. # 37-1 at 30).
Kaloust likewise agreed that Kaloust Financial did not provide
any benefits to the career agents who worked out of Kaloust’s
office. (Kaloust Dep. Doc. # 38-16 at 19; Doc. # 38-17 at 12).
Thus, the Court finds that this consideration also weighs
against finding an employee-employer relationship.
In
sum,
the
Court finds
that
seven of
the
factors
indicate that Barbosa was an independent contractor, three are
38
neutral, and only one factor favors a finding of an employeremployee relationship.
Notably, however, the most important
factor regarding the extent of control, or lack thereof, that
Kaloust wielded over Barbosa militates against finding that
Barbosa was an employee of Kaloust, as do the significant
factors that Kaloust did not provide wages or benefits to
Barbosa. Therefore, the Court determines that the evidence in
this case, when measured against the Restatement criteria and
other relevant considerations, leads to the conclusion that
Barbosa was an independent contractor and not an employee of
Kaloust.
Accordingly, the Court determines that because Barbosa
was not an employee of Kaloust, he is not an insured under the
Policy’s definition for same, and, thus, coverage is not
triggered for Barbosa under the Policy. Therefore, Nationwide
does not have a duty to defend or indemnify Barbosa in the
Underlying Action and Nationwide’s Motion for Summary Judgment
is granted as to coverage for Barbosa.6
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
6
The Bleiles moved for summary judgment only as to
Nationwide’s duty to defend and indemnify Kaloust and, thus,
their Motion is not implicated in the Court’s ruling regarding
Nationwide’s duty to defend and indemnify Barbosa.
39
(1)
Nationwide’s Motion for Clarification (Doc. # 49) is
GRANTED and the Court’s April 9, 2013, Order (Doc. # 47)
as to the parties’ Motions for Summary Judgment is
superseded and amended as detailed herein.
(2)
Nationwide’s Motion for Final Summary Judgment (Doc. #
36) is DENIED as to coverage for Kaloust and GRANTED as
to coverage for Barbosa.
(3)
Stephen
and
Jackie
Bleile’s
Dispositive
Motion
for
Summary Judgment (Doc. # 38) is GRANTED.
(4)
The Clerk is directed to enter an amended Judgment
declaring that:
(a)
Nationwide has a duty to defend and a duty to
indemnify Defendants Kaloust Financial LLC, Richard
Kaloust, and the Estate of Richard Kaloust in the
Underlying Action, Case No. 09WA-CC0066-01, pending
in
the
Circuit
Court
of
St.
Francois
County,
Missouri; and
(b)
Nationwide does not have a duty to defend or a duty
to
indemnify
Defendant
Daniel
Barbosa
in
the
Underlying Action, Case No. 09WA-CC0066-01, pending
in the Circuit Court of St. Francois County, Missouri.
40
DONE and ORDERED in Chambers in Tampa, Florida this 26th
day of June, 2013.
Copies to: All Counsel of Record
41
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