Evanston Insurance Company v. Boone et al
Filing
83
ORDER granting in part and denying in part 71 Motion for summary judgment. Evanston is directed to file a short brief, not to exceed 7 pages, by August 20,2019 addressing the remaining claims. The Estate may file a response brief, not to exceed 7 pages, by August 27, 2019. Signed by Judge Susan C. Bucklew on 8/9/2019. (JD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EVANSTON INSURANCE COMPANY,
Plaintiff,
v.
Case No. 8:17-cv-2747-T-24 CPT
JACK BOONE, ET AL.,
Defendants.
______________________________/
ORDER
This cause comes before the Court on Plaintiff’s Motion for Summary Judgment. (Doc.
No. 71). Defendant Kyla Roberts opposes the motion. (Doc. No. 75). Plaintiff has filed a reply
brief. (Doc. No. 78). As explained below, the motion is granted in part and denied in part.
I. Standard of Review
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.” Fed. R. Civ. P.
56(a). The Court must draw all inferences from the evidence in the light most favorable to the
non-movant and resolve all reasonable doubts in that party's favor. See Porter v. Ray, 461 F.3d
1315, 1320 (11th Cir. 2006)(citation omitted). 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. See id. (citation omitted). 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 there is a genuine issue for trial. See id. (citation omitted).
II. Background
On July 8, 2013, Namon Smith and Zachary Roberts were working on a cell tower.
Namon Smith was not properly secured to the cell tower and fell and struck Zachary Roberts,
which caused Zachary Roberts to fall over 200 feet to the ground below. Zachary Roberts died
from his injuries.
A. The Underlying State Court Action
Zachary Roberts is survived by his wife, Kyla Roberts, and she is the personal
representative of the Estate of Zachary Roberts. Defendant Kyla Roberts, as personal
representative of the Estate of Zachary Roberts (hereinafter referred to as “the Estate”), filed suit
in state court against Defendant Monarch Towers, Inc. (“Monarch”), Defendant Jack Boone (an
executive officer and/or director of Monarch), Defendant Broadcast Tower Technologies, Inc.
(“Broadcast”), and Defendant Southeast Personnel Leasing, Inc. (“SPL”).1
In the state court action, the Estate asserted vicarious liability under respondeat superior
and negligence claims against Boone, Monarch, Broadcast, and SPL based on the Estate’s
contention that Namon Smith and Zachary Roberts were the agents or employees of Boone
and/or Monarch and/or Broadcast and/or SPL. (Doc. No. 1-1, ¶ 9). Specifically, in the vicarious
liability under respondeat superior claims asserted in state court, the Estate alleged that Boone,
Monarch, Broadcast, and/or SPL employed Namon Smith, and that Smith negligently failed to
use reasonable care which caused him to fall and strike Zachary Roberts. In the negligence
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The Estate also sued Defendant Capital Safety USA in the state court action. Capital
Safety manufactured the protective full-body harness that Zachary Roberts was wearing during
the fall. Plaintiff Evanston Insurance Company has dismissed its claims for declaratory relief
against Capital Safety in this case. (Doc. No. 13, 14).
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claims asserted in state court, the Estate alleged that Boone, Monarch, Broadcast, and SPL acted
negligently and that their negligence led to Zachary Roberts’ fall and death. The state court
action is ongoing.
B. The Commercial General Liability Policy
Plaintiff Evanston Insurance Company (“Evanston”) issued a Commercial General
Liability policy (“the Policy”) to Monarch that was in place at the time of the accident. Boone
and Monarch sought coverage for the claims asserted against them in the state court action, and
they requested that Evanston provide them with a defense and indemnification for the claims
asserted by the Estate in the state court action.2 Evanston is providing them with a defense in the
state court action, pursuant to a reservation of rights.
The Policy provides the following regarding coverage for bodily injuries:
[Evanston] will pay those sums that the insured becomes legally
obligated to pay as damages because of “bodily injury” . . . to which
this insurance applies. [Evanston] will have the right and duty to
defend the insured against any “suit” seeking those damages.
However, [Evanston] will have no duty to defend the insured against
any “suit” seeking damages for “bodily injury” . . . to which this
insurance does not apply.
(Doc. No. 1-1, p. 37).
The Combination General Endorsement provides the following exclusion from coverage:
This insurance does not apply to liability for “bodily injury” to . . .
[a]n “employee” of any insured arising out of and in the course of
employment or while performing duties related to the conduct of an
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Monarch is the named insured, and references in the Policy to “you” refer to Monarch.
(Doc. No. 1-1, p. 34, 37). The policy also defines an insured to include Monarch’s executive
officers and directors, but only with respect to their duties as Monarch’s officers or directors.
(Doc. No. 1-1, p. 44). As such, Evanston acknowledges that Boone qualifies as a insured under
the policy.
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insured’s business. . . . [Employee] shall also mean any . . . coemployee, “leased worker”, casual worker, “temporary worker” . . .
“volunteer worker”, or any person . . . loaned to or volunteering
services to [Monarch].
(Doc. No. 1-1, p. 63). The Policy defines a “leased worker” as follows:
“Leased worker” means a person leased to [Monarch] by a labor
leasing firm under an agreement between [Monarch] and the labor
leasing firm, to perform duties related to the conduct of [Monarch’s]
business.
(Doc. No. 1-1, p. 48). Evanston contends that Zachary Roberts was, in fact, an employee of
Monarch or a leased employee to Monarch (by SPL), and therefore, there is no coverage for his
bodily injuries.
Evanston also contends that Broadcast is not an additional insured under the Policy. The
Blanket Additional Insured Endorsement provides that an insured includes any organization to
which Monarch is “obligated by a valid written contract to provide such coverage.” (Doc. No. 11, p. 56).
C. Declaratory Judgment Action
Evanston filed the instant action, in which it asks this Court to declare that: (1) there is no
coverage for the claims against Monarch, Boone, and Broadcast; (2) Broadcast is not an
additional insured; (3) Evanston has no duty to defend Monarch, Boone, and Broadcast in the
underlying state court action; and (4) Evanston has no duty to indemnify Monarch, Boone, and
Broadcast for any liability assessed in the underlying state court action.
Boone, Monarch, and Broadcast have not appeared in this case, and default judgment has
been entered against them. (Doc. No. 33, 34, 35). Evanston voluntarily dismissed its claims
against SPL. (Doc. No. 13, 14). The only remaining defendant in this case is the Estate.
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III. Motion for Summary Judgment
In the instant motion, Evanston moves for summary judgment, arguing that there is no
coverage under the Policy for the claims asserted by the Estate against Monarch, Boone, and
Broadcast. As explained below, Evanston is only entitled to summary judgment with respect to
its arguments that Broadcast is not an additional insured and that Evanston does not owe
Broadcast a duty to defend or indemnify it.
A. Monarch and Boone
Evanston argues that there is no coverage under the Policy for the claims asserted by the
Estate against Monarch and Boone. Evanston concedes, however, that both Monarch and Boone
are insureds under the Policy. Thus, there are two issues: (1) whether Evanston has a duty to
defend them in the state court action; and (2) whether Evanston has a duty to indemnify them for
any liability assessed in the state court action. The Court will analyze each issue.
1. Duty to Defend
The Eleventh Circuit has explained that “[u]nder Florida law, ‘an insurer’s duty to defend
is separate and distinct from its duty to indemnify.’” Mid-Continent Cas. Co. v. American Pride
Bldg. Co., LLC, 601 F.3d 1143, 1148 (11th Cir. 2010)(citation omitted). The duty to defend is
broader than the duty to indemnify. See Mid-Continent Cas. Co. v. Delacruz Drywall Plastering
& stucco, Inc., 766 Fed. Appx. 768, 771 (11th Cir. 2019).
The Eleventh Circuit has stated the following regarding an insurer’s duty to defend:
In Florida, the general rule is that an insurance company's duty to
defend an insured is determined solely from the allegations in the
complaint against the insured, not by the true facts of the cause of
action against the insured, the insured's version of the facts or the
insured's defenses. The insurer must provide a defense in the
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underlying action if the complaint states facts that bring the injury
within the policy's coverage. If the complaint alleges facts partially
within and partially outside the scope of coverage, the insurer is
obligated to defend the entire suit. The merits of the underlying suit
have no bearing on whether the duty is owed. Furthermore, any doubt
about the duty to defend must be resolved in favor of the insured.
Trailer Bridge, Inc. v. Illinois Nat. Ins. Co., 657 F.3d 1135, 1141–42 (11th Cir. 2011)(internal
citations and quotation marks omitted). Furthermore:
[A]n insurer is obligated to defend a claim even if it is uncertain
whether coverage exists under the policy. Under these circumstances,
an insurer may reserve its right to challenge coverage under the policy
without breaching its duty to defend by providing a defense under a
reservation of rights. Such a conditional defense resolves the urgent
question of who shall defend and postpones resolution of the
contingent question of who shall pay any judgment.
American Pride, 601 F.3d at 1149 (internal citations and quotation marks omitted).
In the underlying state court complaint, the Estate alleges that Monarch and Boone are
liable for Zachary Roberts’ fall and death because: (1) Monarch and/or Boone employed Namon
Smith, who caused Zachary Roberts’ fall and death, and therefore, Monarch and/or Boone are
vicariously liable; and/or (2) Monarch and/or Boone’s negligence caused Zachary Roberts’ fall
and death, and therefore Monarch and/or Boone are directly liable. If Zachary Roberts was not
employed by Monarch and/or Boone, and the Estate specifically alleges that Zachary Roberts
may have been employed by SPL and/or Broadcast, then there would be coverage for the Estate’s
claim against Monarch and Boone.
The Court notes that Evanston has submitted substantial evidence that Zachary Roberts
was, in fact, employed by Monarch or was a leased worker of Monarch. Thus, Evanston argues
that there can be no coverage for the Estate’s claim. However, with regard to the duty of
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Evanston to defend Monarch and Boone in the state court action, the allegations of the state court
complaint control, even if they are actually factually incorrect. See Mt. Hawley Ins. Co. v.
Miami River Port Terminal, LLC, 228 F. Supp.3d 1313, 1322 (S.D. Fla. 2017). Therefore,
Evanston must defend Monarch and Boone in the state court action, and Evanston’s motion for
summary judgment on this issue is denied.
2. Duty to Indemnify
The duty to indemnify differs from the duty to defend in a significant way: “While the
duty to defend is controlled by the allegations in the complaint against the insured, the duty to
indemnify is determined by the underlying facts of the case. This duty is dependent upon the
entry of a final judgment, settlement, or a final resolution of the underlying claim.” Mt. Hawley,
228 F. Supp.3d at 1325 (internal citations and quotation marks omitted).
The duty to indemnify is controlled by the actual facts regarding who employed Zachary
Roberts. However, that issue is not ripe for review, because the state court action is ongoing and
neither Monarch nor Boone’s liability has been established. See Delacruz Drywall, 766 Fed.
Appx. at 770 (agreeing with the district court that “an insurer’s duty to indemnify is not ripe until
the underlying lawsuit is resolved or the insured’s liability is established”). As such, Evanston’s
motion for summary judgment on this issue is denied.
B. Broadcast
Evanston argues that Broadcast is not an additional insured under the Policy, and
therefore, Evanston has no duty to defend or indemnify Broadcast. As previously stated, the
Blanket Additional Insured Endorsement in the Policy provides that an insured includes any
organization to which Monarch is “obligated by a valid written contract to provide such
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coverage.” (Doc. No. 1-1, p. 56). Evanston argues that there is no evidence that Monarch was
obligated by a valid written contract to provide additional insured coverage for Broadcast.
In response, the Estate points to a contract between Monarch and Broadcast that states the
following: “Contracting Parties will comply with the insurance requirements set forth in
Schedule 1 attached hereto and incorporated herein by this reference.” (Doc. No. 1-1, p. 79).
However, neither the Estate nor Evanston has produced Schedule 1, and it may be that Schedule
1 does not exist. Even if Schedule 1 does exist, there is no evidence that Schedule 1 mandates
that Monarch provide additional insured coverage for Broadcast.
Thus, there is no evidence before this Court that shows that Monarch was obligated by a
valid written contract to provide additional insured coverage for Broadcast. As such, the Court
finds that Broadcast is not an additional insured under the Policy. Therefore, the Court agrees
with Evanston that it does not have a duty to defend or indemnify Broadcast for the Estate’s
claims in the state court action, and Evanston is entitled to summary judgment on this issue.
IV. Remaining Claims
The Court has resolved Evanston’s claim in Count III that Broadcast is not an additional
insured under the Policy, and therefore, Evanston does not have a duty to defend or indemnify
Broadcast for the Estate’s claims in the state court action. The Court has also resolved
Evanston’s claim in Counts I and II that it does, in fact, have a duty to defend Monarch and
Boone in the underlying state court action. Finally, with regard to the indemnification
declaratory judgment claims in Counts I and II, the Court has stated that whether Evanston has a
duty to indemnify Monarch and/or Boone is not ripe for review as their liability has not been
established. As such, the Court directs Evanston to file a short brief, not to exceed 7 pages, by
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August 20, 2019 addressing why the remaining claims should not be dismissed or the case stayed
until the claims against Monarch and Boone are resolved. The Estate may file a response brief,
not to exceed 7 pages, by August 27, 2019.
V. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1)
Plaintiff’s Motion for Summary Judgment (Doc. No. 71) is GRANTED to the
extent that the Court finds that Broadcast is not an additional insured under the
Policy, and therefore, Evanston does not have a duty to defend or indemnify
Broadcast for the Estate’s claims in the state court action (Count III). Otherwise,
the motion is DENIED.
(2)
Evanston is directed to file a short brief, not to exceed 7 pages, by August 20,
2019 addressing why the remaining claims should not be dismissed or the case
stayed until the claims against Monarch and Boone are resolved. The Estate may
file a response brief, not to exceed 7 pages, by August 27, 2019.
DONE AND ORDERED at Tampa, Florida, this 9th day of August, 2019.
Copies to:
Counsel of Record
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