Southern-Owners Insurance Company v. Tasman Services et al

Filing 75

ENDORSED ORDER: Plaintiff Southern-Owners Insurance Company's Daubert Motion (Doc. # 55) is GRANTED. Plaintiff Southern-Owners Insurance Company's Motion for Summary Judgment (Doc. # 54) is GRANTED. Defendants Tasman Services LLC and Jamie Lynn Baumgartner's Motion for Summary Judgment (Doc. # 56) is DENIED. The Clerk shall enter judgment for Plaintiff and against Defendants and, thereafter, CLOSE this case. Signed by Judge Virginia M. Hernandez Covington on 9/16/2022. (DRG)

Case 8:21-cv-01510-VMC-TGW Document 75 Filed 09/16/22 Page 1 of 22 PageID 634

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SOUTHERN-OWNERS INSURANCE
COMPANY,
Plaintiff,
v.

Case No. 8:21-cv-1510-VMC-TGW

TASMAN SERVICES LLC and JAMIE
LYNN BAUMGARTNER,
Defendants.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Plaintiff Southern-Owners Insurance Company’s Daubert Motion
(Doc. # 55), Southern-Owners’ Motion for Summary Judgment
(Doc. # 54), and Defendants Tasman Services LLC and Jamie
Lynn Baumgartner’s Motion for Summary Judgment (Doc. # 56),
all filed on April 15, 2022. Tasman and Baumgartner have
responded to both of Southern-Owners’ Motions (Doc. ## 57;
58)

and

Southern-Owners

has

replied.

(Doc.

##

60;

61).

Southern-Owners has responded to Tasman and Baumgartner’s
Motion for Summary Judgment. (Doc. # 59). For the reasons
that follow, both of Southern-Owners’ Motions are granted,
and Tasman and Baumgartner’s Motion is denied.

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I.

Background
A. The Insurance Dispute
Southern-Owners

initiated

this

action

against

Baumgartner and Tasman on June 22, 2021, asserting a claim
for declaratory relief. (Doc. # 1). Southern-Owners was the
insurer for Tasman when a vehicle leased by Tasman was in an
automobile accident with Baumgartner in 2016. (Id. at 2–4).
The accident involved a leased U-Haul operated by Tasman’s
employee, Kasey Mitchell. (Doc. # 56 at 2). Baumgartner
brought suit in state court against multiple defendants,
including Tasman, alleging Tasman was vicariously liable for
the

injuries

Baumgartner

sustained

in

the

automobile

accident. (Doc. # 1-2 at ¶¶ 11-16) (the “Underlying Action”).
The present action arises out of the parties’ dispute over
whether

the

Southern-Owners

policy

covers

Baumgartner’s

claims in that action. (Doc. # 1 at 3–5). Southern-Owners
thus seeks a declaration that there is no coverage under the
policy for defense or indemnity of the state court action.
(Id. at 6).
At the time of the accident, Southern-Owners insured
Tasman under a Commercial General Liability Policy (the “CGL
Policy”). (Doc. # 1 at ¶ 9). The CGL Policy includes a
Commercial General Liability Coverage Form, which excludes
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coverage for bodily injury or property damage arising out of
Tasman’s use of rented or loaned automobiles. (Doc. # 1-1 at
27). However, Tasman also purchased a Commercial General
Liability Plus Endorsement (the “CGL Plus Endorsement”) from
Southern-Owners, which expands coverage for bodily injury or
property damage arising out of Tasman’s use of an automobile
that

“[Tasman]

do[es]

not

own”

and

“which

is

used

in

[Tasman’s] business.” (Id. at 15). The coverage applies so
long as Tasman “do[es] not have any other insurance available
to [it] which affords the same or similar coverage.” (Id.)
(emphasis added). The per occurrence limit is $1 million.
(Id. at 6).
At the time of the accident, Tasman was also afforded
liability protection under the U-Haul lease agreement. (Doc.
#

54-3

at

2–3).

The

agreement

provided

Tasman

and

any

authorized driver with “the minimum limits required by the
automobile financial responsibility or compulsory insurance
law of the jurisdiction in which the accident occurs.” (Id.
at 3). Under Florida law, these minimum limits are $20,000
($10,000 per person) of bodily injury liability coverage and
$10,000 of property damage liability coverage. (Doc. # 1-4 at
1). The agreement also provided statutorily required PIP
benefits. (Id.). However, the agreement stated that “[t]he
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protection provided . . . is excess or secondary to any
insurance coverage of the Customer [Tasman] or the Authorized
Driver [Mitchell].” (Id. at 5).
At the time of the accident, Mitchell was insured under
a Florida Family Insurance Policy issued by GEICO. (Doc. # 13). The GEICO Policy provided coverage for bodily injury and
property

damage

arising

out

of

Mitchell’s

use

of

an

automobile, as well as PIP benefits, UM/UIM coverage, and a
handful of other protections. (Id. at 4). The per occurrence
limit for bodily injury coverage was $20,000 ($10,000 per
person). (Id.). The policy provided for up to $25,000 in
property damage liability coverage. (Id.).
Southern-Owners thus seeks a declaration that the CGL
Plus Endorsement policy does not provide coverage to Tasman
in the Underlying Action. (Doc. # 1 at 6). On August 12, 2021,
Tasman

counterclaimed

for

a

declaratory

judgment

that

Southern-Owners is obligated to fully defend and indemnify
Tasman in the Underlying Action. (Doc. # 10 at 10). The
parties’ dispute centers on the meaning of “similar coverage”
and whether it unambiguously includes the GEICO and U-Haul
policies

such

that

Southern-Owners

is

not

obligated

to

provide coverage to Tasman under the CGL Plus Endorsement
Policy.
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The parties now both seek entry of summary judgment in
their favor. (Doc. ## 54, 56). Each party has responded (Doc.
## 57, 59) and Southern-Owners has replied. (Doc. # 61). The
Motions are now ripe for review.
B. The Expert Testimony
Southern-Owners filed Tasman and Baumgartner’s Notice of
Expert disclosure with its Motion in Limine. (Doc. # 55-1).
In the Notice, Tasman and Baumgartner provide the expert
report of Jeffrey M. Posner, an insurance and risk management
professional with experience in the insurance, brokerage, and
risk management fields. (Id. at 1). Mr. Posner’s expert report
includes five opinions, all of which Southern-Owners objects
to. (Id. at 2–4; Doc. # 55 at 2).
Mr. Posner’s report compares a policy with a coverage
limit of $1 million with a policy with a limit of $10,000,
opining that “an insurance professional would not refer to
these policies as containing the same or similar coverage.”
(Doc. # 55-1 at 3). Mr. Posner explains that his opinion is
not “on what the policy means when it refers to other coverage
being the same or similar” but rather is offered to “explain
to the Court how insurance professionals go about comparing
insurance

policies

to

determine

5

the

difference

(or

Case 8:21-cv-01510-VMC-TGW Document 75 Filed 09/16/22 Page 6 of 22 PageID 639

similarities)

between

the

coverage

afforded

by

different

insurance policies and programs.” (Id. at 3).
Southern-Owners filed a Daubert motion to exclude Mr.
Posner’s

testimony.

(Doc.

#

55).

Tasman

and

Baumgartner

responded (Doc. # 58) and Southern-Owners has replied (Doc.
# 61). The Motion is now ripe for review.
II.

Legal Standard
A. Daubert Motion
Federal Rule of Evidence 702 states:
A witness who is qualified as an expert by
knowledge,
skill,
experience,
training,
or
education may testify in the form of an opinion or
otherwise
if:
(a)
the
expert’s
scientific,
technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to
determine a fact in issue; (b) the testimony is
based on sufficient facts or data; (c) the
testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case.

Fed. R. Evid. 702.
Implementing

Rule

702,

Daubert

v.

Merrell

Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), requires district
courts to ensure that any and all scientific testimony or
evidence admitted is both relevant and reliable. See Id. at
589–90. The Daubert analysis also applies to non-scientific
expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137,
147 (1999). District courts must conduct this gatekeeping
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function
testimony

“to

ensure

does

reliability

not

that

that
reach

speculative,
the

jury

accompanies

the

unreliable

under

the

expert

mantle

appellation

of

‘expert

testimony.’” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291
(11th Cir. 2005). The Eleventh Circuit “requires trial courts
acting as gatekeepers to engage in a ‘rigorous three-part
inquiry.’” Hendrix v. Evenflo Co., 609 F.3d 1183, 1194 (11th
Cir. 2010).
The district court must assess whether:
(1) the expert is qualified to testify competently
regarding the matters he intends to address; (2)
the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined
by the sort of inquiry mandated in Daubert; and (3)
the testimony assists the trier of fact, through
the application of scientific, technical, or
specialized expertise, to understand the evidence
or to determine a fact in issue.
Id. The proponent of the expert testimony bears the burden of
showing,

by

a

preponderance

of

the

evidence,

that

the

testimony satisfies each of these requirements. Id.
B. Summary Judgment
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). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
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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., 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,
593–94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).

8

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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
non-moving party’s favor. Shotz v. City of Plantation, 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). But, if the non-movant’s
response consists of nothing “more than a repetition of his
conclusional

allegations,”

summary

judgment

is

not

only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
Finally,

the

filing

of

cross-motions

for

summary

judgment does not give rise to any presumption that no genuine
issues of material fact exist. Rather, “[c]ross-motions must
be considered separately, as each movant bears the burden of
establishing that no genuine issue of material fact exists
and that it is entitled to judgment as a matter of law.” Shaw
Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 53839 (5th Cir. 2004); see also United States v. Oakley, 744
F.2d 1553, 1555 (11th Cir. 1984) (“Cross-motions for summary
9

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judgment

will

not,

granting

summary

in

themselves,

judgment

unless

warrant
one

of

the

the

court

in

parties

is

entitled to judgment as a matter of law on facts that are not
genuinely disputed[.]” (citation omitted)).
III. Analysis
The Court will address Southern-Owners’ Motion in Limine
first,

followed

Judgment,

and

by

then

Southern-Owners’
Tasman

and

Motion

for

Baumgartner’s

Summary

Motion

for

Summary Judgment.
A. Daubert Motion
Southern-Owners seeks to exclude the expert testimony of
Jeffrey M. Posner on the grounds that it lacks the usefulness
required by Rule 702 of the Federal Rules of Evidence and
constitutes an ultimate legal conclusion. (Doc. # 55 at 2).
Southern-Owners also argues that Mr. Posner’s testimony
is contrary to binding precedent and is irrelevant under Rule
401 of the Federal Rules of Evidence. (Doc. # 55 at 2).
Because these arguments are not necessary to resolve the
current

dispute,

the

Court

addresses

only

whether

Mr.

Posner’s testimony is admissible under Rule 702.
Southern-Owners

does

not

challenge

Mr.

Posner’s

qualifications or the reliability of his testimony. Rather,
Southern-Owners argues that Mr. Posner’s testimony is not
10

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helpful to the trier of fact because it is an impermissible
legal conclusion. (Doc. # 55 at 2).
Again, to be admissible, expert testimony must assist
the trier of fact. Fed. R. Evid. 702. “By this requirement,
expert testimony is admissible if it concerns matters that
are beyond the understanding of the average lay person.”
United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004)
(citation

omitted).

“[T]he

court

must

‘ensure

that

the

proposed expert testimony is “relevant to the task at hand,”
. . . i.e., that it logically advances a material aspect of
the proposing party’s case.’” Allison v. McGhan, 184 F.3d
1300, 1312 (11th Cir. 1999) (citation omitted).
So, while “[t]he ‘basic standard of relevance . . . is
a liberal one,’ Daubert, 509 U.S. at 587, . . .[,] if an
expert opinion does not have a ‘valid scientific connection
to the pertinent inquiry[,]’ it should be excluded because
there is no ‘fit.’” Boca Raton Cmty. Hosp., Inc. v. Tenet
Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009)
(citations omitted). “Proffered expert testimony generally
will not help the trier of fact when it offers nothing more
than

what

lawyers

for

the

parties

can

argue

in

closing

arguments.” Frazier, 387 F.3d at 1262–63 (citation omitted).

11

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Southern-Owners argues that Mr. Posner’s opinion on how
members of the insurance industry would interpret “similar
coverage” is an impermissible legal conclusion. (Doc. # 55 at
9). “An expert witness may not testify as to his opinion
regarding ultimate legal conclusions.” U.S. v. Delatorre, 308
F. App’x 380, 383 (11th Cir. 2009). Indeed, “[a] witness . .
. may not testify to the legal implications of conduct; the
court must be the jury’s only source of law.” Montgomery v.
Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990).
In Florida, “the initial determination of whether a
contractual term is ambiguous is a question of law for the
court.” Escobar v. United Auto. Ins. Co., 898 So. 2d 952, 954
(Fla.

3d

admissible

DCA
to

2005).
assist

Although
the

jury

expert

testimony

determine

factual

may

be

issues,

questions of fact in contract interpretation arise only upon
a finding of ambiguity. Campaniello v. Amici P’ship, 832 So.
2d 870, 872 (Fla. 4th DCA 2002) (“[W]hen the terms of a
written instrument are disputed and rationally susceptible to
more than one construction, an issue of fact is presented .
. . .”). Expert testimony purporting to interpret the terms
of a contract is therefore proper only after a court has
determined contractual language to be ambiguous. See Armstead
v. Allstate Property & Cas. Ins. Co., No. 1L14-cv-586-WSD,
12

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2016 WL 4123838, at *5 (N.D. Ga. July 1, 2016) (“The Court
finds that there is no ambiguity in the policy and that [the]
expert opinions are not required for the Court to determine
whether ambiguity exists . . . . The question of what the
contract provisions mean is for the Court to determine.”);
Lincoln Adventures, LLC v. Certain Underwriters at Lloyds of
London, No. 05-60444-CIV-COHN/SNOW, 2005 WL 8156837, at *2
(S.D. Fla. Dec. 16, 2005) (“[E]xpert testimony is usually not
necessary

in

interpreting

an

insurance

contract,

because

there are no issues of fact to resolve.”)
Thus, the admissibility of Mr. Posner’s testimony turns
on whether the interpretation of “similar coverage” presents
a question of fact. Here, the Court is guided by the Eleventh
Circuit’s finding in Southern-Owners Insurance Co. v. Easdon
Rhodes & Associates LLC, 872 F.3d 1161, 1166 (11th Cir. 2017),
that “similar coverage” is unambiguous. While the Florida
Supreme Court has not addressed the issue of whether “similar
coverage” is ambiguous, the First District Court of Appeal
has favorably cited Easdon for the proposition that “the plain
meaning of similar coverage is insurance coverage that covers
a similar risk” in Walls v. Southern Owners Insurance Company,
321 So. 3d 856, 860 (Fla. 1st DCA 2021).

13

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In Easdon, interpreting the terms of the same policy at
issue here, the Eleventh Circuit found that the contract
phrase “similar coverage” refers to the “inclusion of a
specific risk in an insurance policy.” Id. The Eleventh
Circuit explained that “the Endorsement’s exclusion clause
remains solely concerned with whether the other available
insurance protects against the same risks as the Endorsement
rather than whether it offers the same overall level of
protection.” Id.
Despite

Easdon,

Tasman

and

Baumgartner

offer

Mr.

Posner’s testimony to demonstrate that the phrase “similar
coverage” is ambiguous. Tasman and Baumgartner argue that Mr.
Posner’s testimony serves as “expert evidence establishing
that there exists at least one ‘reasonable interpretation’ .
.

.

of

the

policy

term

‘similar

coverage’

that

affords

coverage to Tasman,” thereby creating ambiguity. (Doc. # 58
at 5). Tasman and Baumgartner thus make clear that the purpose
of the expert testimony is to provide a basis upon which the
Court can find ambiguity. (Id.).
Tasman and Baumgartner’s position mischaracterizes the
relevant law. Although Tasman and Baumgartner cite to Florida
and federal cases permitting expert testimony to clarify the
terms of insurance contracts, these cases focus on the use of
14

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expert testimony to elucidate issues of fact. (Doc. # 56 at
10–11). See Red Carpet Corp. of Panama City Beach v. Calvert
Fire Ins. Co., 393 So. 2d 1160, 1161 (Fla. 1st DCA 1981) (“We
feel that had the expert testimony been allowed in the present
case, the jury would have been better informed as to the
meaning of the policy terms . . . and, therefore, better
equipped to property resolve the issues of fact.”) (emphasis
added); see also Montgomery v. Aetna Cas. & Sur. Co., 898
F.2d 1537, 1541 n.9 (11th Cir. 1990) (noting that cases
stating that courts may admit expert testimony on the meaning
of an insurance contract, such as Red Carpet Corp., “appear
inconsistent with the Florida Supreme Court cases holding
that interpretation of an insurance contract is a question of
law to be decided by the judge”).
The Court thus agrees with Southern-Owners that Mr.
Posner’s testimony is not helpful to a jury because “similar
coverage”

is

unambiguous

as

a

matter

of

law,

such

that

testimony meant to demonstrate ambiguity is not useful. While
extrinsic evidence may be permissible upon a finding of
ambiguity,
ambiguity

Tasman
by

and

Baumgartner

introducing

expert

may

not

testimony

manufacture

purporting

to

interpret a phrase the Eleventh Circuit has already found to
be clear. See Emergency Assoc. of Tampa, P.A. v. Sassano, 664
15

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So.

2d

1000,

1002

(Fla.

2d

DCA

1995)

(explaining

that

extrinsic evidence may be admissible to interpret ambiguous
contractual terms) (emphasis added). There is therefore no
issue of fact in dispute that expert testimony would help
clarify.
coverage”

Rather,
is

an

the

parties

ambiguous

dispute

term

such

whether

that

it

“similar
should

be

construed against Southern-Owners. (Doc. # 54 at; Doc. # 56
at 3).
In short, because the Eleventh Circuit has already found
“similar coverage” to have an unambiguous meaning, expert
testimony

on

how

insurance

professionals

would

compare

policies is not useful to a jury, and Mr. Posner’s testimony
is excluded for this reason.
B. Southern-Owner’s Motion for Summary Judgment
Plaintiff Southern-Owners moves for summary judgment on
the basis that its duty to defend Tasman in connection with
the Underlying Action can be resolved as a matter of law.
Specifically, Southern-Owners argues that Tasman’s CGL Plus
Endorsement

policy

does

not

provide

coverage

for

the

underlying action because of the clause in the policy that
states the policy applies only if the policyholder “do[es]
not have any other insurance available to [it] which affords
the same or similar coverage.” (Doc. # 54 at 5–6). According
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to Southern-Owners, the GEICO and U-Haul policies constitute
“similar coverage” under the terms of the CGL Endorsement
such that the Tasman is not entitled to coverage under the
CGL Endorsement. (Id. at 12; Doc. # 1 at ¶ 16).
1.
In

a

substantive

Definition of Similar Coverage

diversity
law

of

action,
the

the

forum

Court

must

state.”

apply

Tech.

“the

Coating

Applicators, Inc. v. U.S. Fid. & Guar. Co., 157 F.3d 843, 844
(11th Cir. 1998). Here, Florida law governs whether SouthernOwners owed Tasman a duty to defend against Baumgartner’s
suit in state court.
Under

Florida

law,

the

terms

used

in

an

insurance

contract are given their ordinary meaning, and the policy
must be construed as a whole “to give every provision its
full meaning and operative effect.” Auto–Owners Ins. Co. v.
Anderson, 756 So. 2d 29, 34 (Fla. 2000). An unambiguous policy
provision is “enforced according to its terms whether it is
a basic policy provision or an exclusionary provision.” Hagen
v. Aetna Cas. & Sur. Co., 675 So. 2d 963, 965 (Fla. 5th DCA
1996).
The terms of the CGL Plus Endorsement covering Tasman
state that the policy applies so long as Tasman “do[es] not
have any other insurance available to [it] which affords the
17

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same or similar coverage.” (Doc. # 1-1 at 15) (emphasis
added). At issue here is whether the GEICO and U-Haul policies
unambiguously

constitute

“similar

coverage”

within

the

meaning of the CGL Policy Endorsement, which would relieve
Southern-Owners of its duty to defend.
Southern-Owners
coverage”

contends

unambiguously

that

includes

the
the

phrase
GEICO

“similar

and

U-Haul

policies, and thus the underlying accident does not trigger
coverage

under

the

CGL

Policy

Endorsement.

Tasman

and

Baumgartner argue that the phrase is ambiguous, and so under
Florida law must be construed “against the drafter.” (Doc. #
56 at 6); Anderson, 756 So. 2d at 34. Specifically, Tasman
and

Baumgartner

argue

that

“similar

coverage”

could

be

construed to refer to coverage that is similar both as to the
type of risk covered and as to the amount and application of
coverage. (Doc. # 56 at 13–14). Such a definition, according
to Tasman and Baumgartner, would render the GEICO and U-Haul
policies dissimilar from the CGL Plus Endorsement, and so the
exclusionary provision of the latter would not apply. (Id. at
14). Resolution of the parties’ dispute thus turns on whether
“similar coverage” is ambiguous.
The Eleventh Circuit has found that the phrase “similar
coverage” as used in Southern-Owners’ CGL Plus Endorsement
18

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Policy unambiguously refers to the “inclusion of a specific
risk in an insurance policy.” Easdon, 872 F.3d at 1167. The
Eleventh Circuit’s determination thus ends the inquiry into
whether “similar coverage” is ambiguous.
While Tasman and Baumgartner argue that the present case
is distinguishable from Easdon because of expert testimony
purporting to interpret the term “similar coverage,” the
Court has determined that Mr. Posner’s testimony is not
admissible under Federal Rule of Evidence 702. The Court thus
applies the law as articulated by the Eleventh Circuit. See
Dorsey v. United States, No. 8:16-cv-1253-MSS-AEP, 2019 WL
11720285, at *5 (M.D. Fla. Jan. 10, 2019) (“This Court is
obligated

to

follow

the

holdings

of

published

Eleventh

Circuit opinions.”).
The Eleventh Circuit has held that “similar coverage” as
used in Southern-Owners CGL Plus Endorsement unambiguously
refers to “the inclusion of a specific risk in an insurance
policy.” Easdon, 872 F.3d at 1167. Accordingly, the Court
applies this definition of “similar coverage” to determine
whether the GEICO and U-Haul policies fall within the scope
of the CGL Plus Endorsement exclusion.

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Case 8:21-cv-01510-VMC-TGW Document 75 Filed 09/16/22 Page 20 of 22 PageID 653

2.

The GEICO and U-Haul Policies

The CGL Plus Endorsement policy that Tasman holds with
Southern-Owners

extends

coverage

for

bodily

injury

and

property damage “only if [the insured] do[es] not have any
other insurance available . . . which affords the same or
similar coverage.” (Doc. # 1-1 at 15) (emphasis added). Given
the definition of “similar coverage” as coverage that extends
to the same insurable risk, the only remaining question is
whether the GEICO and U-Haul policies cover similar risks as
the CGL Plus Endorsement Policy.
The parties do not dispute that the various insurance
policies cover similar risks. (Doc. # 56 at 3–4, 11). Indeed,
the GEICO policy covering Mitchell provides coverage for
bodily injury and property damage arising out of Mitchell’s
use of an automobile. (Doc. # 1-3 at 4). Likewise, the U-Haul
policy provides coverage to Tasman and any authorized driver
for bodily injury and property damage. (Doc. # 1-4 at 5). The
CGL Plus Endorsement covers bodily injury or property damage
arising out of Tasman’s use of an automobile that Tasman does
not own and is used in Tasman’s business. (Doc. # 1-1 at 15).
Regardless of the specific policy limits, the three policies
cover the same specific insurable risks – bodily injury and

20

Case 8:21-cv-01510-VMC-TGW Document 75 Filed 09/16/22 Page 21 of 22 PageID 654

property damage arising out of Tasman’s use of an automobile
in its business.
Accordingly,

because

the

GEICO

and

U-Haul

policies

provide similar coverage as the CGL Plus Endorsement, the
exclusions

section

of

the

CGL

Plus

Endorsement

policy

applies. Tasman is not entitled to coverage under the CGL
Plus Endorsement policy. Because the CGL Plus Endorsement is
inapplicable to the Underlying Action, Southern-Owners does
not have a duty to defend or on indemnify Tasman as a matter
of law and summary judgment for Southern-Owners is warranted.
C. Tasman and Baumgartner’s Motion for Summary Judgment
As

the

Court

has

already

determined

that

summary

judgment in favor of Southern-Owners is appropriate, the
Court denies Tasman and Baumgartner’s Motion for Summary
Judgment (Doc. # 56).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff Southern-Owners Insurance Company’s Daubert
Motion (Doc. # 55) is GRANTED.

(2)

Plaintiff Southern-Owners Insurance Company’s Motion for
Summary Judgment (Doc. # 54) is GRANTED.

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Case 8:21-cv-01510-VMC-TGW Document 75 Filed 09/16/22 Page 22 of 22 PageID 655

(3)

Defendants

Tasman

Services

LLC

and

Jamie

Lynn

Baumgartner’s Motion for Summary Judgment (Doc. # 56) is
DENIED.
(4)

The Clerk shall enter judgment for Plaintiff and against
Defendants and, thereafter, CLOSE this case.
DONE and ORDERED in Chambers in Tampa, Florida, this

16th day of September, 2022.

22