Companion Property & Casualty Insurance Company v. All Roof Systems, LLC et al
ORDER ATTACHED denying 30 Motion for Judgment on the Pleadings. Signed by Judge Richard A. Lazzara on 8/17/2015. (CCB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
COMPANIES PROPERTY &
CASUALTY INSURANCE COMPANY,
CASE NO: 8:15-cv-1097-T-26AEP
ALL ROOF SYSTEMS, LLC; AMS STAFF
LEASING CORPORATION; ANDREW N.
CLARK; and NADINE L. CLARK,
Before the Court is Plaintiff’s Motion for Judgment on the Pleadings Against
Defendants Andrew N. Clark and Nadine L. Clark (Dkt. 30), and Defendants’ Corrected
Response (Dkt. 34). After careful review and consideration of the pleadings, the parties’
arguments, and the applicable law, the Court concludes the motion should be denied.
This action seeks declaratory relief that Plaintiff Companion Property and Casualty
Insurance Company (Companion) has no duty to defend or indemnify All Roof Systems
LLC (All Roof) or AMS Staff Leasing Corporation (AMS) in a state court action brought
by Andrew and Nadine Clark. Companion issued the Workers Compensation and
Employers Liability Insurance Policy (the Policy) at issue. Companion alleges in this
action that it issued the Policy to AMS. AMS allegedly leases employees to All Roof
through a contractual arrangement.1 According to the Amended Complaint, the state
court action alleges that Mr. Clark was seriously injured while working for All Roof
when he fell through a concealed hole in a warehouse roof and that Mrs. Clark suffered
the loss of consortium.2 The state court action was filed against All Roof only.
Companion contends that a judgment on the pleadings should be entered in its favor
because All Roof’s conduct falls within the intentional tort exception under Florida’s
Workers’ Compensation Law, and the Policy excludes from coverage conduct that falls
within the exception.
The standard for determining a motion for judgment on the pleadings is whether
“there are no material facts in dispute” such that “the moving party is entitled to judgment
as a matter of law.” Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014)
(quoting Cannon v. City of W. Palm Beach, 250 F. 3d 1299, 1301 (11th Cir. 2001)).3 In
reviewing the motion, all material facts alleged in the non-moving party’s pleading are
See docket 8, para. 19.
See docket 8, paras. 35 & 36, Exh. 1. Count I of the state court complaint
alleges gross negligence against All Roof, and Count II alleges a loss of consortium. See
docket 8, paras. 13 & 14, Exh. 1.
See also Interline Brands, Inc. v. Chartis Specialty Ins. Co., 749 F.3d 962, (11th
Cir. 2014) (quoting Cunningham v. Dist. Attorney’s Office of Escambia Cnty., 592 F.3d
1237, 1255 (11th Cir. 2010)).
accepted as true, viewing those facts in the light most favorable to the non-moving party.
Perez, 774 F.3d at 1335 (citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370
(11th Cir. 1998)). “If a comparison of the averments in the competing pleadings reveals a
material dispute of fact, judgment on the pleadings must be denied.” Perez, 774 F.3d at
1335. The court may also consider documents attached to the plaintiff’s complaint or
defendant’s answer “if they are (1) central to the plaintiff’s claim and (2) undisputed.”
Bank of Camilla v. St. Paul Mercury Ins. Co., 531 F. App’x 993, 994 (11th Cir. 2013)
(citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)) (unpublished).
The Clarks allege in the state court complaint that All Roof is not entitled to
workers’ compensation immunity afforded under the Florida Workers’ Compensation Act
pursuant to section 440.11(1)(b)(2) of the Florida Statutes.4 Subsection 440.11(1)(b)(2)
provides an exception to the employer’s immunity under no-fault workers’ compensation
insurance when the employer commits an intentional tort that causes injury to the
employee. Companion reasons that the Clarks can prevail only if All Roof’s conduct falls
within the intentional tort exception of section 440.11(1)(b), thereby taking All Roof
outside the protections of the workers’ compensation immunity. Companion argues,
however, that the policy at issue specifically excludes from coverage any conduct that
would cause an insured to lose its “immunity from civil liability under the workers’
See docket 8, para. 37, Exh. 1.
compensation laws.”5 Consequently, argues Companion, there can be no duty to defend
or indemnify an intentional tort claim.
Florida’s Workers’ Compensation Law applies to employees leased from an
employee leasing company. See Fla. Stat. § 440.11(2); United States v. Total Emp’t Co.,
Inc., 305 B.R. 333, 3335 (M.D. Fla. 2004) (explaining “leased back” employees). The
leasing company must provide workers’ compensation coverage. See Fla. Stat. §
468.529(1). The pleadings reveal that both parties agree that “AMS is a related company
to Aspen Staff Leasing.”6 The insurance policy attached to the Amended Complaint
shows the insured as AMS Staff Leasing Corporation.7 In addition to the pleadings of
record, Defendant attaches a copy of the Certificate of Insurance that shows the insured as
“Aspen Staff Leasing, Inc. l/c/f: All Roof Systems LLC.”8
The Clarks take the position that until the exact relationship among AMS, Aspen
Staff Leasing, and All Roof is determined through factual development, this Court will be
unable to sort out the mixed questions of law and facts necessary to determine the duties
to defend and indemnify. The Court agrees. Accordingly, judgment on the pleadings in
See docket 8, Exh. 4 at p. 231.
See dockets 8, para. 18 (Amended Complaint) and 20, para. 18 (Answer). After
Companion filed its initial complaint, it realized that AMS Staff Leasing Corporation was
in fact AMS Staff Leasing, Inc. d/b/a AMS Staff Leasing Corporation. See docket 8 at
See docket 8, Exh. 4.
See docket 34-1.
favor of Companion is due to be denied but without prejudice to raising the issue of duty
to defend and indemnify again in a motion for summary judgment after the close of
It is, therefore, ORDERED AND ADJUDGED that Plaintiff’s Motion for
Judgment on the Pleadings Against Defendants Andrew N. Clark and Nadine L. Clark
(Dkt. 30) is DENIED.
DONE AND ORDERED at Tampa, Florida, on August 17, 2015.
s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?