Publix Super Markets, Inc. v. ACE Property and Casualty Insurance Company et al

Filing 281

ORDERED: Plaintiff's Renewed Unopposed Motion for the Court to Enter Final Judgment 279 is granted. The Clerk is directed to enter judgment in favor of Defendants and against Plaintiff Publix Super Markets, Inc. (See Order for details.) The Clerk is further directed to terminate any pending motions and deadlines and CLOSE this case.. Signed by Senior Judge Charlene Edwards Honeywell on 3/12/2025. (MMS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PUBLIX SUPER MARKETS, INC.,
Plaintiff,
v.

Case No: 8:22-cv-2569-CEH-AEP

ACE PROPERTY AND CASUALTY
INSURANCE COMPANY, et al.,
Defendants.
ORDER
This cause comes before the Court on Plaintiff Publix Super Markets, Inc.’s
(“Publix”) Renewed Unopposed Motion for the Court to Enter Final Judgment (Doc.
279). In the renewed motion, Publix again asks the Court to enter a final judgment in
this matter so that it may file an appeal of the Court’s determination that the opioid
lawsuits do not allege damages “because of bodily injury.” See Doc. 270. The parties
have also filed a Joint Policy Stipulation (Doc. 278), which stipulates to the content of
all policies at issue in the instant action. Upon review and full consideration, the Court
finds that the renewed motion for final judgment is due to be granted.
BACKGROUND
The Court’s Order dated December 6, 2024, recounted the background of
Publix’s first motion for final judgment as follows:
In this insurance action, Publix sought a declaration that its
insurers have a duty to defend and indemnify it in pending lawsuits
related to the opioid epidemic (“the underlying lawsuits”). The

Amended Complaint names as defendants the 19 insurance
companies that issued policies to Publix providing layers of
coverage between 1995 and 2018. Docs. 11, 11-1. Count I alleges
breach of contract against the two insurers who issued first-layer
policies, Hartford Fire Insurance Company and Twin City Fire
Insurance Company, for failing to provide coverage for defense
costs for the opioid lawsuits. Doc. 11 ¶¶ 39, 94-101. Count II
alleges anticipatory breach of contract against all insurers for
anticipatorily repudiating their alleged obligation to provide
coverage for defense costs, settlements, or judgments. Id. ¶¶ 102110. Counts III and IV seek a declaratory judgment that all
insurers have a duty to defend and indemnify it, respectively, in
the opioid lawsuits. Id. ¶¶ 111-126.
On September 13, 2023, in response to a motion to dismiss, the
Court stayed Count IV, the duty to indemnify, as to all defendants,
and dismissed Counts II and III as to Fireman’s Fund Insurance
Company and National Surety Corporation. Doc. 214.
Publix moved for partial summary judgment. Doc. 176. It sought
a declaration that seven defendants—Hartford Fire Insurance
Company, Liberty Mutual Fire Insurance Company, ACE
Property and Casualty Insurance Company, Great American
Insurance Company of New York, Liberty Insurance
Underwriters Inc., XL Insurance America, Inc., and The Ohio
Casualty Insurance Company—have a duty to provide coverage
for Publix’s defense costs incurred in the underlying lawsuits under
policies they issued for the policy period January 1, 2013, to
January 1, 2014. Id. Publix explained that it was limiting its
motion to the 2013 policies “in order to streamline motion practice
before this Court, and because a ruling on this issue has the
potential to significantly simplify this litigation going forward.” Id.
at 8.
On October 29, 2024, the Court issued an Order denying Publix’s
motion for partial summary judgment (“the October 29 Order”).
Doc. 270. The Court found that the 2013 policies issued by the
seven insurers did not provide coverage for the opioid lawsuits. Id.
As a result, it directed Publix to show cause as to why it should
not grant partial summary judgment in favor of those defendants
with respect to those policies, pursuant to Fed. R. Civ. P. 56(f)(1).
Id. at 32-33.

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Publix filed its Unopposed Motion for the Court to Enter Final
Judgment in response to the Court’s Order to show cause. Doc.
275. Publix explains that it “cannot show cause why summary
judgment on the duty to defend issue should not be granted in
favor of the 2013 insurer Defendants given the Court’s
determination” in the October 29 Order, which Publix intends to
appeal. Id. at 2. In addition, Publix represents that the 2013
policies at issue in the motion for partial summary judgment
“served as exemplars for the policies issued in all years by all
Defendant insurers,” and that “all policies at issue in this case
contain language that the Court ruled is functionally similar to that
discussed in the Court’s Order[.]” Id. The Order therefore “applies
with equal force to all Defendants, not just the 2013 insurers,
resolving Publix’s First, Second, and Third Causes of Action
against all Defendants to the extent those causes of action seek a
declaration that Defendants have a duty to defend Publix or pay
Publix’s defense costs for the underlying lawsuits.” Id. The Order
also “effectively resolves” Count IV, because a duty to indemnify
cannot exist if there is no duty to defend. Id. at 2-3. Thus, Publix
asks the Court to enter final judgment against it as to all counts of
the Amended Complaint and all defendants, so that Publix may
file an appeal. Id. at 3-4. Defendants do not oppose the requested
relief. Id. at 4.
Doc. 276 at 1-3.
The Court denied Publix’s first motion for final judgment. Doc. 276. 1 The
Court observed that its ruling that there was no coverage under the 2013 policies did
not automatically extend to the remaining policies, which were not before the Court.
Id. at 5. Publix’s mere statement that the remaining policies contained language that
was functionally similar to the 2013 polices was not enough to authorize a final
judgment with respect to those policies; the Court noted, however, that the remaining
policies could come before the Court “on motion or by stipulation of the parties.” Id.

The Court did, however, grant summary judgment in favor of the 2013 insurers under Fed.
R. Civ. P. 56(f).
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Publix now seeks to place the remaining policies before the Court. The parties’
Joint Policy Stipulation attaches 150 polices, which span from coverage years 1995 to
2020, issued by all defendants in this action. Doc. 278. The parties stipulate that each
policy “limit[s] coverage to claims against Publix alleging ‘damages’ ‘because of’ or
‘for’ ‘bodily injury,’ or follow form to the same.” Id. ¶ 2.
In its renewed motion for final judgment, Publix argues that the Joint Policy
Stipulation demonstrates that the Court’s ruling in the October 29 Order “resolves all
of Publix’s causes of action in its Amended Complaint,” because it “applies with equal
force to all Defendants, not just the 2013 insurers.” Doc. 279 at 2.
DISCUSSION
Ordinarily, “any order…that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties does not end the action as to any of the
claims or parties[.]” Fed. R. Civ. P. 54(b). Rule 54(b) provides that a district court
may direct entry of a final judgment as to “fewer than all” of the claims in an action—
and thereby green-light an appeal—if it determines that there is no just reason for a
delay. See id.; Gelboim v. Bank of Am. Corp., 547 U.S. 405, 409 (2015). Here, however,
instead of seeking a Rule 54(b) certification of the Court’s October 29 Order regarding
the 2013 insurers only, Publix argues that the October 29 Order on its motion for
partial summary judgment has the effect of resolving all the claims in this action.
Publix therefore seeks entry of a final judgment of the entire action under Rule 58. See
Fed. R. Civ. P. 58.

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In support of its request, Publix cites Rule 56(f), which permits a district court
to grant summary judgment for a nonmovant if it has provided notice and a reasonable
time to respond. Doc. 279 at 1, citing Fed. R. Civ. P. 56(f)(1). In this unusual case,
Publix is the movant who is requesting judgment in favor of the opposing party for the
purpose of proceeding to an appeal. Publix maintains that the Court’s findings in the
October 29 Order necessarily resolve the remaining claims. The Court finds that
Publix’s two unopposed motions requesting this relief, coupled with the parties’
thorough briefing on the motion for partial summary judgment, constitute adequate
notice and an opportunity to be heard under Rule 56(f). It will therefore consider the
merits of Publix’s request.
In its October 29 Order denying Publix’s motion for partial summary judgment,
the Court found that the opioid lawsuits do not allege damages “because of bodily
injury” under Florida law. Doc. 270. The Court also observed that one of the 2013
policies and some of the caselaw use the term “because of bodily injury”
interchangeably with the term “for bodily injury,” although Publix asked the Court to
adopt the Seventh Circuit’s view that “for” is narrower than “because of.” Id. at 25.
Either view compels the conclusion that the opioid lawsuits also do not allege damages
“for bodily injury.” The October 29 Order concluded that the 2013 policies do not
cover the opioid lawsuits, as they only cover damages “because of bodily injury” or,
in one instance, “for bodily injury.” Doc. 270.
The Joint Policy Stipulation demonstrates that, like the 2013 policies, the
remaining policies that Defendants issued to Publix cover only claims alleging
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damages “because of bodily injury” or “for bodily injury.” Doc. 278. Accordingly,
pursuant to Florida law and for the reasons explained in the October 29 Order, see
Doc. 270 at 21-32, 2 none of the policies offer coverage of the opioid lawsuits. Because
none of the Defendants have a duty to defend or indemnify Publix in the underlying
lawsuits, Publix is correct that the findings in the October 29 Order resolve all counts
of the Amended Complaint as to the remaining Defendants. Defendants are therefore
entitled to summary judgment in their favor under Rule 56(f). The Court will grant
Publix’s motion and enter a final judgment in Defendants’ favor with respect to all
counts of the Amended Complaint.
Accordingly, it is ORDERED:
1. Plaintiff’s Renewed Unopposed Motion for the Court to Enter Final
Judgment (Doc. 279) is granted.
2. The Clerk is directed to enter judgment in favor of all Defendants listed in
the Amended Complaint (Doc. 11):
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ACE Property and Casualty Insurance Company
American Guarantee & Liability Insurance Company
Fireman’s Fund Insurance Company, as to Count IV only*
Great American Assurance Company
Great American Insurance Company of New York
Great American Spirit Insurance Company
The Hartford Fire Insurance Company
Indian Harbor Insurance Company
Liberty Insurance Underwriters, Inc.

This Order adopts and incorporates that discussion.

* The Order dated September 15, 2023 (Doc. 214), dismissed without prejudice Counts II and
III against Defendants Fireman’s Fund Insurance Company and National Surety Corporation
for lack of subject matter jurisdiction.

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Liberty Mutual Fire Insurance Company
Liberty Surplus Insurance Corporation
National Fire & Marine Insurance Company
National Surety Corporation, as to Count IV only
Navigators Specialty Insurance Company
Ohio Casualty Insurance Company
St. Paul Fire & Marine Insurance Company
Steadfast Insurance Company
Twin City Fire Insurance Company
XL Insurance America, Inc.

and against Plaintiff Publix Super Markets, Inc.
3. The Clerk is further directed to terminate any pending motions and
deadlines and CLOSE this case.
DONE and ORDERED in Tampa, Florida on March 12, 2025.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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