Empire Fire and Marine Insurance Company v. Span et al

Filing 125

ORDER. Plaintiffs Second Renewed Motion for Summary Judgment DE# 118 is DENIED. Signed by Judge Roy K. Altman on 6/2/2021. See attached document for full details. (ebz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 19-61102-CIV-ALTMAN/Hunt
EMPIRE FIRE AND MARINE
INSURANCE COMPANY,
Plaintiff,
v.
KIVEN LASHAWN SPAN, et al.,
Defendants.
______________________________/

ORDER
This is an insurance dispute over a car crash. In 2018, Kiven Lashawn Span crashed into a car
that then rear-ended Patricia Charles, Francoise Dubois, Patrick Simonis, and Antonine Leveque.
Having suffered severe injuries, the crash victims (Charles, Dubois, Simonis, and Leveque) sued Span
in state court. In this separate (federal) action, Span’s insurer, Empire Fire and Marine Insurance
Company, asks the Court to declare that it has no duty to defend or indemnify Span in the underlying
state-court lawsuit. After some tortuous litigation and several rounds of motions practice, Empire Fire
has filed its Second Renewed Motion for Summary Judgment [ECF No. 118] (the “Motion”).
In its Motion, Empire Fire contends that, when he crashed, Span was driving drunk—a fact
Empire Fire views as dispositive because its policy precludes coverage for impaired drivers. But there
are two fundamental problems with Empire Fire’s position. First, the duty to defend is generally
governed solely by the allegations in the underlying complaint, and our state-court complaint says
nothing about alcohol or drunk driving. Second, the duty to indemnify is, as this Court has already held,
not yet ripe. Because the state court has entered no judgment, there’s simply nothing for Empire Fire

to indemnify. For these reasons, the Motion is DENIED. 1

THE FACTS
A.

The Crash

On February 8, 2018, Span rented a car from Enterprise Rent-A-Car. See Plaintiff’s Statement
of Undisputed Facts [ECF No. 107] (“Plaintiff’s SOF”) ¶ 6. The next day, while driving the car, Span
rear-ended one car that, in turn, rear-ended another car occupied by our crash victims. Id. ¶ 2.
Responding to the scene, an investigating police officer concluded that Span was intoxicated. Id. ¶ 3.
The officer based this conclusion on several indicators, including: (1) Span was asleep in his car when
the officer arrived; (2) Span’s eyes were watery and bloodshot; (3) Span’s breath smelled of alcohol;
and (4) Span failed the roadside sobriety test. Id. ¶ 4. At the same time, Span—who had just been in a
serious car crash—never took a breathalyzer test and never provided a blood sample. See Opposition
to Motion for Summary Judgment [ECF No. 121] (“Opposition”) at 6.
B.

The Underlying Complaint

On March 11, 2019, the crash victims sued in Florida state court, asserting a single count of
negligence against Span. See Complaint, Charles v. Span, No. CA CE19005429 (Fla. Super. Ct. Mar. 11,
2019), ¶¶ 11–14. That count alleges that Span crashed into the state-court plaintiffs when he “carelessly
and negligently operated” his car, causing “significant and severe bodily injury.” Id. ¶¶ 13–14. The
complaint never says that Span had consumed alcohol or that he was impaired or intoxicated in any
way. Id. ¶¶ 1–24. In fact, the complaint never even hints at the possibility. Instead, the state-court
plaintiffs only (generally) allege that Span drove negligently. Id.
C.

The Insurance Policy

Because Span had no personal auto insurance, he elected to pay for optional coverage when

1

The Motion is ripe for resolution. See Opposition [ECF No. 121]; Reply [ECF No. 124].
2

he rented his car from Enterprise. See Opposition at 2. Through Empire Fire, Span purchased a
“Supplemental Liability Protection” policy (the “Policy”). See Plaintiff’s SOF ¶ 18. 2 The Policy has a
$1 million limit and (broadly) covers any “‘loss’ involving ‘bodily injury’ . . . caused by an ‘accident.’”
Policy [ECF No. 1-2] at 2, 6. This coverage is subject to several policy exclusions. Id. at 7–8. The
Policy, for example, excludes coverage both for any loss arising from an accident that occurs while the
renter is under the influence and for any loss that occurs when the car is used in violation of the
Enterprise rental agreement. To quote from the Policy:
[T]his insurance does not apply to the following:
1. Loss arising out of an “accident” which occurs while the “insured” is under the
influence of alcohol or drugs, or other substances unless prescribed by a physician.
2. Loss arising out of the use of a “rental vehicle” when such use is in violation of the
terms and conditions of the “rental agreement.”
Id. at 7; see also Plaintiff’s SOF ¶ 19. The rental agreement, in turn, prohibits the renter from using the
car in any illegal or reckless manner or from driving the car while under the influence of drugs or
alcohol. It says (in relevant part):
4. Limits on Use and Termination of Right to Use.
a. Renter agrees to the following limits on use: . . .
(4) Vehicle should not be used for: any illegal purposes; in any illegal or reckless
manner; in a race or speed contest; or to tow or push anything[;] . . .

The parties quibble over whether Span agreed to either the rental agreement or the Policy. As the
Defendants note, the rental agreement identifies the renter as “KIVEN STAN,” not “KIVEN
SPAN”—an incongruity the Defendants attribute, not to a typo, but to the near-miraculous
appearance of a Kiven Stan, who (by striking coincidence) walked into the very same Enterprise on
the very same day and rented the very same car as Kiven Span. See Opposition at 4–5 (disputing
“whether Kiven SPAN (not ‘STAN’ as is evidenced in the agreement) ever received the Rental
Agreement Jacket, the Rental Agreement, and agreed to either terms prior to renting the vehicle”).
Empire Fire, for its part, maintains that it was Span who signed the rental agreement that day—a far
more plausible inference. See Reply (“Defendants’ focus on an apparent misspelling in the Rental
Agreement is nothing more than a red herring.”). Fortunately, because we resolve the Motion on other
grounds, we needn’t disentangle this mystery. So (for now anyway), we’ll just assume that Span agreed
to the rental agreement’s terms.

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(7) Vehicle shall not be driven by any person impaired by the use of narcotics, alcohol,
intoxicants, or drugs, used with or without a prescription.
Id. ¶ 17; see also Rental Agreement Jacket [ECF No. 107-3] ¶ 4. In short, Span agreed that he would
not use his rental car (1) while he was “under the influence of alcohol or drugs, or other substances
unless prescribed”; (2) while he was “impaired by the use of narcotics, alcohol, intoxicants, or drugs,
used with or without a prescription”; or (3) “in any illegal or reckless manner.” Plaintiff’s SOF ¶¶ 17,
19.
D.

This Case

Empire Fire filed this lawsuit on May 1, 2019, a few short months after the crash victims sued
Span in state court. See generally Docket. In response to Empire Fire’s First Renewed Motion for
Summary Judgment [ECF No. 106], this Court stayed Empire Fire’s duty-to-indemnify claim because,
without a state-court judgment against Span, that claim isn’t yet ripe. As the Court explained: “If there
has been no judgment, then there is no duty-to-indemnify claim, it’s not yet ripe. I don’t have Article
III jurisdiction over that claim.” Transcript [ECF No. 120] at 6:6–8; see also Order [ECF No. 112]
(staying the duty-to-indemnify claim). But the Court allowed Empire Fire to file a second renewed
motion for summary judgment as to its (alleged) duty to defend. Id. This is that Motion.

STANDARD OF REVIEW
Summary judgment is appropriate when “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). “By its very terms,
this standard provides that the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
An issue of fact is “material” if it might affect the outcome of the case under the governing law. Id. at
248. A dispute about a material fact is “genuine” if the evidence could lead a reasonable jury to find
for the non-moving party. Id.
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At summary judgment, the moving party bears the initial burden of “showing the absence of
a genuine issue as to any material fact.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“[A] party seeking summary judgment always
bears the initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate the absence of a genuine issue of material
fact.”). Once the moving party satisfies its initial burden, the burden then shifts to the non-moving
party to “come forward with specific facts showing there is a genuine issue for trial.” See Bailey v. Allgas,
Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The Court, in ruling on a motion for summary judgment, “need consider only the cited
materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3); see also Green v.
Northport, 599 F. App’x 894, 895 (11th Cir. 2015) (“The district court could consider the record as a
whole to determine the undisputed facts on summary judgment.”). In any event, on summary
judgment, the Court must “review the facts and all reasonable inferences in the light most favorable
to the non-moving party.” Pennington v. City of Huntsville, 261 F.3d 1262, 1265 (11th Cir. 2001).
In sum, then, if there are any genuine issues of material fact, the Court must deny summary
judgment and proceed to trial. Whelan v. Royal Caribbean Cruises Ltd., 2013 WL 5583970, at *2 (S.D.
Fla. Aug. 14, 2013). On the other hand, the Court must grant summary judgment if a party “has failed
to make a sufficient showing on an essential element of her case.” Celotex, 477 U.S. at 323; see also Lima
v. Fla. Dep’t of Children & Families, 627 F. App’x 782, 785–86 (11th Cir. 2015) (“If no reasonable jury
could return a verdict in favor of the nonmoving party, there is no genuine issue of material fact and
summary judgment will be granted.” (quoting Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th
Cir.1994))).

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ANALYSIS
A.

The Duty to Defend

Empire Fire has failed to establish that it has no duty to defend Span in the state-court case.
Under Florida law, courts “generally look only to the four corners of a complaint to determine an
insurer’s duty to defend.” Mid-Continent Cas. Co. v. Arpin & Sons, LLC, 824 F. App’x 644, 649 (11th
Cir. 2020); see also State Farm Fire & Cas. Co. v. Steinberg, 393 F.3d 1226, 1230 (11th Cir. 2004) (noting
that the duty to defend is generally “determined solely from the allegations in the complaint against
the insured, not by the true facts of the cause of action against the insured”). And an insurer’s duty to
defend is triggered when the complaint against its insured “fairly bring[s] the case within the scope of
coverage.” Princeton Excess & Surplus Lines Ins. Co. v. Hub City Enterprises, Inc., 808 F. App’x 705, 708
(11th Cir. 2020) (cleaned up).
“If the complaint alleges facts that bring the injury within the policy’s coverage, the insurer
must defend as a matter of law, ‘regardless of the merits of the lawsuit.’” Addison Ins. Co. v. 4000 Island
Boulevard Condo. Ass’n, Inc., 721 F. App’x 847, 854 (11th Cir. 2017) (quoting Steinberg, 393 F.3d at 1230).
That is, “the duty to defend attaches ‘even if the allegations in the complaint are factually incorrect or
meritless.’” Id. (quoting Jones v. Fla. Ins. Guar. Ass’n, Inc., 908 So. 2d 435, 443 (Fla. 2005)). Indeed,
“[w]hen the actual facts are inconsistent with the allegations in the complaint, the allegations in the
complaint control in determining the insurer’s duty to defend.” Jones, 908 So. 2d at 443 (quoting Baron
Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So. 2d 810, 814 (Fla. 1st DCA 1985)). “If there is any doubt
about the insurer’s duty to defend, then the ambiguity must be resolved in favor of the insured.”
Princeton Excess, 808 F. App’x at 708.
These principles easily dictate the result in our case. The Policy provides coverage for any loss
involving bodily injury arising from an accident. See Policy at 6. And an accident is exactly what the
underlying complaint alleges happened here: that Span negligently crashed into the state-court
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plaintiffs, causing their injuries. See Complaint, Charles v. Span, No. CA CE19005429, ¶¶ 11–14. While
the Policy excludes coverage in cases where the negligent driver is under the influence of drugs or
alcohol (or where the driver uses the vehicle illegally or recklessly), see Plaintiff’s SOF ¶¶ 17, 19, the
underlying state-court complaint never suggests that Span was drunk or intoxicated in any way. The
underlying complaint, in fact, says only that Span “carelessly and negligently” caused the crash—a
carelessness that’s perfectly consistent with any number of negligent (but sober) acts. So, for instance,
Span might have fallen asleep at the wheel, he might have been lost in thought, he might have been
texting and driving (or reading and driving), or he might have been driving blindfolded. Either way,
the complaint alleges nothing from which this Court might reasonably infer that Span was drunk when
he crashed into the state-court plaintiffs.
Florida, to be sure, has recognized two narrow exceptions to the four-corners rule—neither
applicable here.
First, under Florida law, courts may look to extrinsic evidence (i.e., evidence outside the
underlying complaint) “where an insurer’s claim that there is no duty to defend is based on factual
issues that would not normally be alleged in the underlying complaint.” Higgins v. State Farm Fire and
Cas. Co., 894 So. 2d 5, 10 (Fla. 2004). This makes sense: a plaintiff is unlikely to include in his statecourt negligence suit allegations about (for instance) whether the state-court defendant properly
notified its insurer; whether the defendant is an insured under the policy; or whether the defendant
had knowledge of a claim against it before it bought coverage. 3 In these scenarios, of course, courts will

See Composite Structures, Inc. v. Cont’l Ins. Co., 560 F. App’x 861, 866 (11th Cir. 2014) (relying on the
“uncontroverted date of written notice when determining its duty to defend because the date of
written notice to the insurance company is not a fact that would normally be alleged in the complaint”);
Nateman v. Hartford Cas. Ins. Co., 544 So. 2d 1026, 1028 (Fla. 3d DCA 1989) (relying on extrinsic
evidence that left “no room for doubt” that the defendant was not an insured); Diamond State Ins. Co.
v. Boys’ Home Ass’n, Inc., 172 F. Supp. 3d 1326, 1340 (M.D. Fla. 2016) (“It appears that application of
a prior knowledge exclusion may constitute a circumstance where consideration of extrinsic evidence
is appropriate.”).

3

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need to look beyond the underlying complaint. 4
But this exception has absolutely nothing to do with our case. Unlike the sort of allegation a
plaintiff would have no reason to add to its state-court complaint—like whether the defendant
properly notified its insurer of a potential claim—the crucial fact in question here (that Span was drunk
when he crashed into the plaintiffs) is precisely the kind of allegation that would be included in that
complaint. See generally Mt. Hawley Ins. Co. v. Tactic Sec. Enf’t, Inc., 2017 WL 8316925, at *6 (M.D. Fla.
Sept. 28, 2017) (“Higgins stands for a limited exception where an insurer’s denial of the duty to defend
is based on only those factual issues that would not normally be alleged; it is not a holding that allows for
denial based on any and all facts that were not alleged, nor facts that are contrary to facts that are
alleged.”), report and recommendation adopted, 2017 WL 6947453 (M.D. Fla. Nov. 15, 2017). Empire Fire
thus cannot avail itself of this first exception here.
Second, Florida courts have found “that in special circumstances, a court may consider extrinsic
facts if those facts are undisputed, and, had they been pled in the complaint, they clearly would have
placed the claims outside the scope of coverage.” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318,
1323 (11th Cir. 2014). The Eleventh Circuit has cautioned, however, that “such cases are best viewed
‘as exceptional cases in which courts have crafted an equitable remedy when it is manifestly obvious
to all involved that the actual facts placed the claims outside the scope of coverage.’” Id. at 1323–24
(quoting First Specialty Ins. Corp. v. 633 Partners, Ltd., 300 Fed. App’x 777, 786 (11th Cir. 2008)). This
second exception, in short, aims to prevent plaintiffs from “omitt[ing] a ‘crucial, undisputed fact in a

See generally 3 NEW APPLEMAN ON INSURANCE LAW LIBRARY EDITION § 17.01 (2021) (“Some courts
have held that an insurer may properly base a refusal to defend on extrinsic facts that relate solely to
an issue of coverage, provided that the facts have no relation to any disputed issue of liability in the
underlying action. Examples of coverage issues for which the insurer may be able to base a denial to
defend on extrinsic facts include: Nonpayment of a premium; Cancellation of a policy; Failure to
cooperate or lack of timely notice; Whether the person sued has been specifically excluded by name
or description from any coverage; Whether the property involved in the suit is included in or has been
expressly excluded from any coverage; and Nonexistence of the policy.”).

4

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patent attempt to plead into coverage.’” BBG Design Build, LLC v. S. Owners Ins. Co., 820 F. App’x 962,
965 (11th Cir. 2020) (quoting Wilson ex rel. Estate of Wilson v. Gen. Tavern Corp., 469 F. Supp. 2d 1214,
1220 (S.D. Fla. 2006)).
This exception likewise doesn’t apply to our case. For starters, the “fact” that Span was
intoxicated at the time of the collision is not at all undisputed. Indeed, in a section of their brief entitled
“Defendant[s] [d]ispute[] Span was intoxicated,” the Defendants very much dispute that Span was
intoxicated. See Opposition at 5–6. And, for all the reasons set out in that section, Span’s alleged
intoxication isn’t obvious to all. So, for instance, as the Defendants point out, even though Span “had
just been involved in a serious collision,” there is “no concrete evidence that there was an intoxicant
in Mr. Span’s system.” Id. at 6. Span, after all, didn’t take a breathalyzer test or provide a urine or blood
sample. Id. And Empire Fire has presented no judicial finding that Span was intoxicated. Nor has
Empire Fire produced any evidence of gamesmanship—i.e., any evidence that the state-court plaintiffs
purposefully omitted Span’s drunkenness from the state-court complaint as a way of pleading themselves
into coverage. This (very limited) exception, then, is inapposite here. 5
This result is consistent with fundamental principles of federalism and with the caution we
generally employ when we risk encroaching on the traditional role of the jury. As we’ve said, the
underlying case is still pending before a state court. The principal dispute in that case will (almost
undoubtedly) revolve around this question—namely, whether Span was drunk when he crashed into
the state-court plaintiffs. For the Court to find now—without hearing any testimony—that Span’s

One more thing: Although Empire Fire references the “manifestly obvious to all” exception in
passing, it never actually contends that the exception applies. It relies, instead, only on the “undisputed”
exception, arguing that “the undisputed evidence establishes that . . . Span was intoxicated at the time
of the accident.” Motion at 8–9. Empire Fire has thus waived any argument it could have advanced
under the “manifestly obvious to all” exception. See, e.g., Hamilton v. Southland Christian Sch., Inc., 680
F.3d 1316, 1319 (11th Cir. 2012) (“A passing reference to an issue in a brief is not enough, and the
failure to make arguments and cite authorities in support of an issue waives it.”).
5

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drunkenness is “undisputed” or “manifestly obvious to all” would thus constitute a gross (not to
mention uninformed) infringement on the sovereignty of the state. See, e.g., Huffman v. Pursue, Ltd., 420
U.S. 592, 601 (1975) (noting that federalism is concerned primarily with “the notion of ‘comity,’ that
is, a proper respect for state functions, a recognition of the fact that the entire country is made up of
a Union of separate state governments, and a continuance of the belief that the National Government
will fare best if the States and their institutions are left free to perform their separate functions in their
separate ways” (quoting Younger v. Harris, 401 U.S. 37, 44 (1971)); see also Ex parte Young, 209 U.S. 123,
162 (1908) (“But the Federal court cannot, of course, interfere in a case where the proceedings were
already pending in a state court.”). 6 No less problematically, to decide that question here—particularly
on cold papers and without the benefit of cross-examination—would be to intrude on the province
of the jury, hallowed ground on which we should not blithely tread. Cf. THE FEDERALIST No. 83
(Alexander Hamilton) (“The friends and adversaries of the plan of the convention, if they agree in
nothing else, concur at least in the value they set upon the trial by jury. . . : the former regard it as a
valuable safeguard to liberty; the latter represent it as the very palladium of free government.”).
In any event, our decision today fits neatly within the strong current of recent decisions that
have refused to extend the narrow scope of Florida’s “undisputed” and “manifestly obvious to all”
exception. See, e.g., Orange & Blue Constr., Inc. v. HDI Glob. Specialty SE, 2020 WL 6343327, at *6 (S.D.
Fla. Aug. 25, 2020) (declining to consider extrinsic evidence because the application of a policy
exclusion for independent contractors wasn’t “obvious”); Mt. Hawley Ins. Co. v. Roebuck, 383 F. Supp.
3d 1351, 1365 (S.D. Fla. 2019) (refusing to consider extrinsic evidence because the parties “hotly
dispute[d]” the facts that supported application of a policy exclusion), aff’d, 797 F. App’x 518 (11th

Worse, passing on this question now—while the state case is pending—may lead to inconsistent
results. The Court, after all, may find it “manifestly obvious to all” that Span was intoxicated only for
a state jury to find that he was not.
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Cir. 2020); S.-Owners Ins. Co. v. Wentworth Constr. Co., LLC, 2019 WL 8275154, at *8 (S.D. Fla. Dec. 10,
2019) (concluding that, because the facts “are not undisputed and do not seem to be of the sort
intentionally omitted from the underlying complaint, the Court is unpersuaded that this is an
extraordinary case that requires the Court to look beyond the [four] corners”); GEICO Indem. Ins. Co.
v. Silva, 2017 WL 5634717, at *5 (S.D. Fla. Jan. 4, 2017) (rejecting the insurer’s request to rely on
extrinsic evidence to support insurer’s view that the relevant act was intentional—and so, not
covered—because the evidence suggesting “intentional[] rather than negligent[]” conduct was “not
‘undisputed’”); Advanced Sys., Inc. v. Gotham Ins. Co., 272 So. 3d 523, 528 (Fla. 3d DCA 2019) (refusing
to consider extrinsic evidence the insurer proffered in its effort to show that a pollution exclusion
applied because the insured “consistently contested the nature and composition of the released fire
suppression foam”).
Against all this, Empire Fire relies almost entirely on two decisions—both unavailing. We’ll
start with Nationwide Mut. Fire Ins. Co. v. Keen, 658 So. 2d 1101 (Fla. 4th DCA 1995). In that case, before
the suit was filed, “the insured conceded to his carrier that on the occasion in question he operated
[a] water craft with a 40-hp engine”—a concession that (indisputably) “place[d] any claim arising from
the occurrence outside the coverage afforded by the policy.” Id. at 1102. The court found that, in the
underlying suit, the claimant had purposefully omitted any mention of the engine’s horsepower in an
obvious “attempt to bar any consideration of the evidence showing that the engine was not covered.”
Id. at 1103. Given these facts, the court concluded that, “if uncontroverted evidence places the claim
outside of coverage, . . .we think the carrier is relieved of defending.” Id. Our case, of course, is very
different: Neither Span nor the crash victims has ever admitted that Span was driving drunk. To the
contrary, from the beginning of this litigation, the question of Span’s intoxication has been very much
disputed. And, as we’ve said, there’s absolutely no evidence that the crash victims omitted Span’s
(alleged) drunkenness from the underlying complaint as part of some clever stratagem. Keen thus
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doesn’t control us here.
Empire Fire’s reliance on Underwriters at Lloyds London v. STD Enterprises, Inc., 395 F. Supp. 2d
1142 (M.D. Fla. 2005), fares no better. In that case, the insurer sought a declaration that it had no duty
to defend or indemnify a person who was injured on the insured’s tractor. Id. at 1144. The policy had
a cross-liability exclusion that eliminated coverage for claims brought by one insured against another.
Id. As to the duty to defend—the duty at issue here—the court looked only to the allegations of the
underlying state-court complaint. Id. at 1146. And, finding no indication that the victim was also an
insured, the court held that the insurer had a duty to defend. Id. But the court absolved the insurer of
its duty to indemnify after concluding, by reviewing the extrinsic evidence, that the victim was also an
insured. Id. at 1150. The court thus granted summary judgment on both the duty to indemnify and the
duty to defend, reasoning that “the duty to defend ceases when it is shown that there is no potential
for coverage, i.e., when there is no duty to indemnify.” Id. at 1146, 1150–51.
As should be clear already, STD Enterprises is inapplicable for two reasons. First, in that case—
unlike ours—the extrinsic evidence (the victim’s deposition testimony) was undisputed. See id. (noting
that the insured “does not offer any evidence contradicting [the victim’s] testimony, therefore none
of the facts presented in his testimony are disputed”). We have no similar admission from Span (or
anyone else), and—more importantly—the Defendants do dispute the evidence of Span’s intoxication.
See 633 Partners, 300 F. App’x at 786 (distinguishing STD Enterprises on the ground that, in that case,
“[n]either party disputed this fact [that the employee was an insured], and the employee’s deposition
testimony clearly supported its veracity”). Second, as Empire Fire concedes, see Motion at 7 & n.1, STD
Enterprises held that, because the insurer had no duty to indemnify, it could bear no duty to defend.
But “[t]he STD Enterprises court did not address the ripeness of the duty to indemnify claim.” Great
Am. Assurance Co. v. Walters, 2015 WL 13567713, at *2 (M.D. Fla. Oct. 7, 2015). Since our duty-toindemnify claim (by contrast) is not yet ripe, we cannot opine on its viability and, as such, cannot use
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it to resolve Empire Fire’s separate duty-to-defend claim.
In sum, Empire Fire’s request for summary judgment on its duty-to-defend claim is
DENIED.
B.

The Duty to Indemnify

As we’ve foreshadowed, Empire Fire’s duty-to-indemnify claim isn’t yet ripe. “The ripeness
doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for
refusing to exercise jurisdiction.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003)
(cleaned up). “The ripeness doctrine protects federal courts from engaging in speculation or wasting
their resources through the review of potential or abstract disputes.” Digital Properties, Inc. v. City of
Plantation, 121 F.3d 586, 589 (11th Cir. 1997); see also Nat’l Advert. Co. v. City of Miami, 402 F.3d 1335,
1339 (11th Cir. 2005) (“Strict application of the ripeness doctrine prevents federal courts from
rendering impermissible advisory opinions and wasting resources through review of potential or
abstract disputes.”).
Applying these principles, the Eleventh Circuit has repeatedly found that the “duty to
indemnify [an insured] is not ripe for adjudication until the underlying lawsuit is resolved.” MidContinent Cas. Co. v. Delacruz Drywall Plastering & Stucco, Inc., 766 F. App’x 768, 770 (11th Cir. 2019); see
also J.B.D. Const., Inc. v. Mid-Continent Cas. Co., 571 F. App’x 918, 927 n.4 (11th Cir. 2014) (“The duty
to indemnify is dependent upon the entry of a final judgment, settlement, or a final resolution of the
underlying claims.”); Am. Safety Indem. Co. v. T.H. Taylor, Inc., 513 F. App’x 807, 810 (11th Cir. 2013)
(holding that the “district court correctly declined to consider [the duty to indemnify] claim because it
was premature and did not constitute a present case or controversy”). Indeed, this Court, relying on
those decisions, has reached the same conclusion. See Dream Builders of S. Fla. Corp. v. Mid-Continent Cas.
Co., 2019 WL 3821552, at *4 (S.D. Fla. Aug. 15, 2019) (Altman, J.) (noting that “the duty to indemnify
does not ripen until the state-court plaintiff has obtained a favorable judgment”).
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These decisions rely on two important principles. First, when a federal judge adjudicates a
duty-to-indemnify claim before there’s been a judgment or settlement in state court, that judge is opining
“on a matter which might never arise,” and it is emphatically not our role to address “nice and intriguing
questions which . . . may never in fact come to pass.” Am. Fid. & Cas. Co. v. Pennsylvania Threshermen
& Farmers’ Mut. Cas. Ins. Co., 280 F.2d 453, 461 (5th Cir. 1960). Second, “in the development of the
substantive causes of action . . . , evidence might be relevant and adduced which has a decisive bearing
on the [application of the] policies.” Id. In other words, the duty to indemnify hinges, at least in part,
on “the underlying facts adduced at trial.” Stephens, 749 F.3d at 1324 (emphasis added) (quoting U.S.
Fire Ins. Co. v. Hayden Bonded Storage Co., 930 So. 2d 686, 691 (Fla. 4th DCA 2006)). And it would be
unfair—if not imprudent—to resolve the fact-intensive question of indemnification before the record
in the underlying state-court suit is fully developed.
Here, for instance, the crash victims’ state-court case against Span is ongoing. That case may
result in a finding that Span isn’t liable—in which case Empire Fire’s (hypothetical) duty to indemnify
would never arise. Even if Span were found liable, however, Empire Fire would still have a chance to
show that, by virtue of certain facts adduced in the state-court case, Span is excluded from the Policy’s
coverage. Or that trial may show that Span’s accident had nothing to do with drunkenness and that the
crash victims’ claims are governed by the Policy. Either way, under well-settled law from this Circuit,
Empire Fire’s duty to indemnify is not properly before us. See, e.g., Orange & Blue, 2020 WL 6343327,
at *7 (“The duty to indemnify issue will only become ripe to adjudicate upon resolution of the
underlying action.”); AIX Specialty Ins. Co. v. Dginguerian, 2019 WL 4573255, at *3 (S.D. Fla. Sept. 20,
2019) (Altonaga, J.) (“[T]he duty to indemnify is not ripe for adjudication until the underlying lawsuit
is resolved.” (cleaned up)). 7

The Eleventh Circuit has said that one possible “exception to the ripeness rule applies when
‘the court can determine that the allegations in the complaint could under no circumstances lead to a

7

14

Empire Fire’s request for summary judgment on its duty-to-indemnify claim is thus likewise
DENIED.
***
After careful review, the Court hereby ORDERS and ADJUDGES that the Plaintiff’s Second
Renewed Motion for Summary Judgment [ECF No. 118] is DENIED.
DONE AND ORDERED in Fort Lauderdale, Florida, this 2nd day of June 2021.

cc:

_________________________________
ROY K. ALTMAN
UNITED STATES DISTRICT JUDGE

counsel of record

result which would trigger the duty to indemnify.’” Delacruz Drywall, 766 F. App’x at 771 (quoting
Northland Cas. Co. v. HBE Corp., 160 F. Supp. 2d 1348, 1360 (M.D. Fla. 2001)). The Eleventh Circuit,
however, added that Northland’s “under no circumstances” exception (1) “is not binding on this court”;
(2) would permit the court to reach the duty to indemnify, but “would not compel the district court to
assess [the insurer’s] duty to indemnify at this time”; and (3) has been applied only when a court finds
no duty to defend and, on that basis, must find no duty to indemnify. Id.
As a preliminary matter, Empire Fire never suggests that this exception applies here, so it’s
waived any such argument. See In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009) (“Arguments not
properly presented . . . are deemed waived.”). But, even if this exception did apply—and, for the three
reasons outlined in Mid-Continent, it doesn’t—there’s no basis to say that the crash victims’ complaint
could, “under no circumstances,” trigger Empire Fire’s duty to indemnify. Again, whether Span was
drunk when he crashed into the state-court plaintiffs is a hotly disputed question of fact about which
this Court cannot (and does not), on a cold record, express any opinion.
15