Opinion
Case No. 6:19-cv-1444-CEM-GJK
2021-12-09
NATIONWIDE INSURANCE COMPANY OF AMERICA, Plaintiff, v. SOUTHLAND LAWN CARE, INC., Anthony Acquafredda, Diane Wolfe, John Wolfe, and Dawn Wolfe, Defendants.
John E. Herndon, Conroy Simberg, Tallahassee, FL, for Plaintiff. Scott A. Turner, Beachside Legal Services, P.L.L.C., Satellite Beach, FL, for Defendants Southland Lawn Care, Inc., Anthony Acquafredda. Gary Lindsey Holland, Gary Holland, Attorney at Law, West Melbourne, FL, for Defendants Diane Wolfe, John Wolfe, Dawn Wolfe.
John E. Herndon, Conroy Simberg, Tallahassee, FL, for Plaintiff.
Scott A. Turner, Beachside Legal Services, P.L.L.C., Satellite Beach, FL, for Defendants Southland Lawn Care, Inc., Anthony Acquafredda.
Gary Lindsey Holland, Gary Holland, Attorney at Law, West Melbourne, FL, for Defendants Diane Wolfe, John Wolfe, Dawn Wolfe.
ORDER
CARLOS E. MENDOZA, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on Plaintiff's Motion for Summary Final Judgment ("MSJ," Doc. 44). Defendants Diane Wolfe, John Wolfe, and Dawn Wolfe ("Estate Defendants") as co-personal representatives of the estate of Michael Wolfe ("Wolfe") filed a Response (Doc. 51), to which Defendants Southland Lawn Care, Inc. ("Southland") and Anthony Acquafredda joined, (Defs.’ Join In, Doc. 52, at 1), and Plaintiff filed a Reply (Doc. 57). Plaintiff also filed a Motion to Remove Matter from Jury Trial Date/Calendar ("Motion to Remove," Doc. 75). For the reasons stated herein, the MSJ will be granted and the Motion to Remove will be denied as moot.
To the extent that the Response also contains a Motion to Strike, the Court has previously ruled on that request. (See Aug. 27, 2021 Order, Doc. 60, at 14; Dec. 6, 2021 Order, Doc. 77, at 8–9). Additionally, the Court notes that the Response violates Local Rule 1.08(a)–(b) in that the main text, which appears to be in Times New Roman typeface, is in twelve-point font and not the required fourteen-point font. (See generally Doc. 51). Additionally, the indented quotations are in ten-point font instead of the required thirteen-point font. (See, e.g. , id. at 17–18); M.D. Fla. R. 1.08(a)–(b). Despite the Local Rule violation, in consideration of the nearing trial date for this case, the Court will consider the Response. M.D. Fla. R. 1.01(b) (noting that "[i]f reasonably necessary to achieve the purpose of these rules, a judge can modify or suspend for all or part of an action the application of any rule," with a sole exception that does not apply here). However, the Court reminds counsel for the Estate Defendants of his duty to read and comply with the Local Rules.
I. BACKGROUND
This case is a declaratory judgment action regarding Commercial General Liability Insurance Policy No. ACP GLZO 5944720720 ("Insurance Policy," Doc. 45-5) issued by Plaintiff to Southland. (Second Am. Compl., Doc. 32, at 1, 7; Doc. 45-5 at 1–2). This action relates to Case No. 2017-CA-045278 filed by the Estate Defendants against Southland and Acquafredda in state court. (Doc. 32 at 3; State Court Second Am. Compl. ("Underlying Complaint"), Doc. 45-4, at 1). After commencement of the state court case, Plaintiff filed this suit, seeking a declaration as to whether Plaintiff has a duty to defend or indemnify Southland or Acquafredda in the state court case under the Insurance Policy. (Doc. 32 at 10–11). Plaintiff now moves for summary judgment. (See generally Doc. 44).
II. LEGAL STANDARD
"The court shall grant summary judgment 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 dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it may "affect the outcome of the suit under the governing law." Id.
"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." Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1313–14 (11th Cir. 2007). In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). However, when faced with a "properly supported motion for summary judgment," the nonmoving party "must come forward with specific factual evidence, presenting more than mere allegations." Gargiulo v. G.M. Sales, Inc. , 131 F.3d 995, 999 (11th Cir. 1997) (citing Anderson , 477 U.S. at 248–49, 106 S.Ct. 2505 (1986) ); see also LaRoche v. Denny's, Inc. , 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999) ("The law is clear ... that suspicion, perception, opinion, and belief cannot be used to defeat a motion for summary judgment.").
"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249, 106 S.Ct. 2505. "[T]he proper inquiry on summary judgment is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ " Stitzel v. N.Y. Life Ins. Co. , 361 F. App'x 20, 22 (11th Cir. 2009) (quoting Anderson , 477 U.S. at 251–52, 106 S.Ct. 2505 ). Put another way, a motion for summary judgment should be denied only "[i]f reasonable minds could differ on the inferences arising from undisputed [material] facts." Pioch v. IBEX Eng'g Servs. , 825 F.3d 1264, 1267 (11th Cir. 2016) (quoting Allen , 121 F.3d at 646 ).
III. ANALYSIS
It is undisputed that Florida law governs the interpretation of the insurance policy at issue. In Florida, "[s]ummary judgment is appropriate in declaratory judgment actions seeking a declaration of coverage when the insurer's duty, if any, rests solely on the applicability of the insurance policy, the construction and effect of which is a matter of law." Northland Cas. Co. v. HBE Corp. , 160 F. Supp. 2d 1348, 1358 (M.D. Fla. 2001) ; see also Gas Kwick, Inc. v. United Pac. Ins. Co. , 58 F.3d 1536, 1538–39 (11th Cir. 1995) ("Under Florida law, interpretation of an insurance contract is a matter of law to be decided by the court.").
"In interpreting insurance contracts, the Florida Supreme Court has made clear that ‘the language of the policy is the most important factor.’ " James River Ins. Co. v. Ground Down Eng'g, Inc. , 540 F.3d 1270, 1274 (11th Cir. 2008) (footnote omitted) (quoting Taurus Holdings, Inc. v. U.S. Fid. and Guar. Co. , 913 So. 2d 528, 537 (Fla. 2005) ). "The scope and extent of insurance coverage is determined by the language and terms of the policy." Westport Ins. Corp. v. VN Hotel Grp., LLC , 513 F. App'x 927, 930 (11th Cir. 2013) (quoting Bethel v. Sec. Nat'l Ins. Co. , 949 So. 2d 219, 222 (Fla. 3d DCA 2006) ). "Under Florida law, insurance contracts are construed according to their plain meaning." Taurus Holdings , 913 So. 2d at 532.
"[I]f a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision." Id. (quoting Hagen v. Aetna Cas. & Sur. Co. , 675 So. 2d 963, 965 (Fla. 5th DCA 1996) ). In order for an insurance contract to be found ambiguous, "[t]here must be ‘a genuine inconsistency, uncertainty, or ambiguity in meaning [that] remains after resort to the ordinary rules of construction.’ " Valiant Ins. Co. v. Evonosky , 864 F. Supp. 1189, 1191 (M.D. Fla. 1994) (quoting Excelsior Ins. Co. v. Pomona Park Bar & Package Store , 369 So. 2d 938, 942 (Fla. 1979) ). "[A] court may not rewrite the policy or add meaning to create an ambiguity." Id. (emphasis in original) (citing State Farm Mut. Auto. Ins. Co. v. Pridgen , 498 So. 2d 1245, 1248 (Fla. 1986) ). Additionally, the mere fact that policy language requires interpretation does not render the language ambiguous. Id. However, where "the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the [other] limiting coverage, the insurance policy is considered ambiguous." Westport Ins. , 513 F. App'x at 931 (alteration in original) (quoting Auto-Owners Ins. Co. v. Anderson , 756 So. 2d 29, 34 (Fla. 2000) ). "Ambiguous policy provisions are interpreted liberally in favor of the insured and strictly against the drafter who prepared the policy." Calvert v. Safeco Ins. Co. , 841 F. App'x 169, 172 (11th Cir. 2021) (quoting Auto-Owners Ins. , 756 So. 2d at 34 ).
When considering whether coverage exists under an insurance policy, "[a]n insurer's ‘duty to defend is distinct from and broader than the duty to indemnify.’ " Lime Tree Vill. Cmty. Club Ass'n v. State Farm Gen. Ins. Co. , 980 F.2d 1402, 1405 (11th Cir. 1993) (quoting Baron Oil Co. v. Nationwide Mut. Fire Ins. Co. , 470 So. 2d 810, 813 (Fla. 1st DCA 1985) ). Whether an insurer has a duty to defend "is determined by examining the allegations in the complaint filed against the insured." Id. (citing Nat'l Union Fire Ins. Co. v. Lenox Liquors Inc. , 358 So. 2d 533, 536 (Fla. 1978) ). When the underlying complaint "alleges facts which fairly and potentially bring the suit within policy coverage," the insurer must defend the suit on behalf of the insured. Id. "If the allegations of the complaint leave any doubt as to the duty to defend, the question must be resolved in favor of the insured." Id. As a result, "[a]n insurer may be required to defend a suit even if the later facts show there is no coverage." Orlando Nightclub Enters., Inc. v. James River Ins. Co. , No. 6:07-cv-1121-Orl-19KRS, 2007 WL 4247875, at *9 (M.D. Fla. Nov. 30, 2007). However, "if the pleadings show that there is no coverage or that a policy exclusion applies to bar coverage, the insurer has no duty to defend." Goldberg v. Nat'l Union Fire Ins. Co. , 143 F. Supp. 3d 1283, 1294 (S.D. Fla. 2015) (citing Md. Cas. Co. v. Fla. Atl. Orthopedics, P.L. , 771 F. Supp. 2d 1328, 1332 (S.D. Fla. 2011), aff'd , 469 F. App'x 722 (11th Cir. 2012) ).
Here, Plaintiff cites as record evidence the Underlying Complaint and other evidence such as requests for admission and responses in the state court case. However, as explained above, "the framework for analysis on a duty to defend issue is determined solely by the underlying complaint." Luhman v. Covington Specialty Ins. Co. , No. 16-20044-CIV-GOODMAN, 2017 WL 850178, at *4, 2017 U.S. Dist. LEXIS 29713, at *12 (S.D. Fla. Mar. 2, 2017) (citation omitted). Therefore, this Court must look only to the allegations in the Underlying Complaint to determine whether Plaintiff has a duty to defend the state court case.
The state court case arose from an accident involving Wolfe, during which Wolfe was driving a truck with an attached trailer. (Doc. 45-4 at 2, 7). The Underlying Complaint alleges that at some point, "the trailer became unattached from the truck or otherwise inoperable in the middle of the roadway," causing Wolfe to stop, exit the truck, and attempt to reattach the trailer along with another man. (Id. at 2). Further, the Underlying Complaint alleges that while attempting to reattach the trailer, the trailer was struck by another vehicle, causing Wolfe to be struck by the trailer and resulting in Wolfe's death. (Id. ).
Plaintiff argues that two different Insurance Policy exclusions apply to exclude coverage—the Employer's Liability Bodily Injury Exclusion ("Bodily Injury Exclusion"), (Doc. 45-5 at 17), and the Aircraft, Auto or Watercraft Exclusion ("Auto Exclusion"), (id. at 19). "Under Florida law, exclusionary insurance provisions are ‘construed even more strictly against the insurer than coverage clauses,’ " and the insurer has the burden of demonstrating that an exclusion in a policy applies. Westport Ins. , 513 F. App'x at 932 (quoting Auto-Owners Ins. , 756 So. 2d at 34 ).
The Auto Exclusion states that the Insurance Policy "does not apply to" " ‘[b]odily injury’ ... arising out of the ownership, maintenance, use or entrustment to others of any ... ‘auto’ ... owned or operated by or rented or loaned to any insured." (Doc. 45-5 at 19). "This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the ‘occurrence’ which caused the ‘bodily injury’ ... involved the ownership, maintenance, use or entrustment to other of any ... ‘auto’ ... that is owned or operated by or rented or loaned to any insured." (Id. ). "Bodily injury" is defined to mean "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." (Id. at 29). "Auto" is defined to mean, inter alia , "[a] land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment." (Id. ). "Use includes operation and ‘loading or unloading.’ " (Id. at 19). And the "insured," as applicable to the instant Insurance Policy, is the "organization" and its " ‘executive officers’ and directors ..., but only with respect to their duties as ... officers or directors." (Id. at 24).
It is undisputed that Wolfe's death was a bodily injury, as that term is defined by the Insurance Policy. So, the questions that remain are whether his death: (1) "ar[ose] out of," (2) "the ownership, maintenance, use or entrustment to others," (3) "of any ... ‘auto,’ " (4) "owned or operated by or rented or loaned to any insured." (Id. ).
First, Plaintiff argues that "Florida and Federal Courts have consistently held that the term ‘arising out of’ is not ambiguous such that an auto use exclusion is applicable even though the chain of events leading up to the accident were comprised of or contained ‘non-use’ factors." (Doc. 44 at 8). The Florida Supreme Court has held that the phrase " ‘[a]rising out of’ [i]s [u]nambiguous and [s]hould [b]e [i]nterpreted [b]roadly." Taurus Holdings , 913 So. 2d at 539. "The term ‘arising out of’ is broader in meaning than the term ‘caused by’ and means ‘originating from,’ ‘having its origin in,’ ‘growing out of,’ ‘flowing from,’ ‘incident to’ or ‘having a connection with.’ " Id. at 539–40 (quoting Hagen v. Aetna Cas. & Sur. Co. , 675 So. 2d 963, 965 (Fla. 5th DCA 1996) ). "[T]his requires more than a mere coincidence between the conduct ... and the injury," id. (citing Race v. Nationwide Mut. Fire Ins. Co. , 542 So. 2d 347, 351 (Fla. 1989) ), "[b]ut it does not require proximate cause," id. (citing Race , 542 So. 2d at 348 ). See also N.H. Ins. Co. v. Champion , No. 6:12-cv-1832-Orl-22GJK, 2013 WL 12156445, at *6, 2013 U.S. Dist. LEXIS 200232, at *18 (M.D. Fla. Nov. 25, 2013) ("It is important to note ... that the covered auto does not have to be the proximate cause of the accident.") (citing Watson v. Watson , 326 So. 2d 48, 49 (Fla. 2d DCA 1976) ).
Prior to Taurus , the Florida Supreme Court discussed a three-factor test for "analyzing liability coverage for an act arising out of the ownership, maintenance, and use of a motor vehicle." Race v. Nationwide Mut. Fire Ins. Co. , 542 So. 2d 347, 349 (Fla. 1989). In Race , the Florida Supreme Court noted "three rather interesting rules ... to determine the insurer's liability": (1) "The accident must have arisen out of the inherent nature of the automobile, as such;" (2) "[t]he accident must have arisen within the natural territorial limits of an automobile, and the actual use, loading, or unloading must not have terminated;" and (3) "[t]he automobile must not merely contribute to cause the condition which produces the injury, but must, itself, produce the injury," id. (quoting 6B J. Appleman, Insurance Law and Practice , section 4317 (Buckley ed. 1979)). However, "[t]here is no basis for limiting causation to the narrow Race three-factor test" because "[t]he Florida Supreme Court never [formally] adopted the three-factor test." N.H. Ins. Co. v. Champion , No. 6:12-cv-1832-Orl-22GJK, 2013 WL 12156445, at *6, 2013 U.S. Dist. LEXIS 200232, at *18 (M.D. Fla. Nov. 25, 2013).
Here, Wolfe had exited the truck and was attempting to reattach the trailer when the trailer was struck by another vehicle, causing the trailer to strike and kill Wolfe. Interpreting the phrase "arising out of" in the broad manner required by Florida law, it is clear that Wolfe's death was "incident to" and "ha[d] a connection with" his attempts to reattach the trailer because those attempts are what placed him on the roadway between the truck and trailer when the other vehicle struck the trailer, and it was the trailer itself that hit Wolfe resulting in his death. Taurus Holdings , 913 So. 2d at 539 ; id. at 533 (interpreting the phrase "arising out of" to only require "some level of causation greater than coincidence").
Second is the question of whether the accident arose out of "the ownership, maintenance, use or entrustment to others" of the trailer. (Doc. 45-5 at 19). "Courts have typically defined ‘use’ broadly: ‘[u]se extends to any activity involved in the utilization of the covered vehicle in the manner intended or contemplated by the insured.’ " N.H. Ins. , 2013 WL 12156445, at *7, 2013 U.S. Dist. LEXIS 200232, at *20 (quoting Nat'l Indem. Co. v. Corbo , 248 So. 2d 238, 240 (Fla. 3d DCA 1971) (emphasis added)). At the time of the accident, Wolfe was attempting to reattach the trailer to the truck, which is certainly utilization of a trailer in the manner intended, i.e., attaching it to a vehicle to be towed.
Next is the issue of whether the trailer falls within the Insurance Policy definition of an "auto." (Doc. 45-5 at 19). As noted above, the Insurance Policy defines "auto" to mean, inter alia , "[a] land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment." (Id. at 29 (emphasis added)). The Underlying Complaint specifically uses the term "trailer" throughout, (e.g. , Doc. 45-5 at 2), making it clear that it falls within the Insurance Policy definition of an auto. The Estate Defendants nonetheless argue that the trailer was not an auto and was instead "mobile equipment," as defined by the Insurance Policy. (See Doc. 45-5 at 19, 30). The Court is unconvinced and need not look beyond the clear and unambiguous policy definition of an auto, which clearly includes trailers. James River , 540 F.3d at 1274 ("[T]he Florida Supreme Court has made clear that the language of the policy is the most important factor," and "insurance contracts are construed according to their plain meaning."); Taurus Holdings , 913 So. 2d at 532 ("[I]f a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision.").
To the extent that the Florida Fourth District Court of Appeal held to the contrary in Frontier Ins. Co. v. Pinecrest Preparatory Sch. , 658 So. 2d 601 (Fla. 4th DCA 1995), the case is factually distinguishable, and this Court disagrees with and is not bound by that holding. See Valiant , 864 F. Supp. at 1191 ("[A] court may not rewrite the policy or add meaning to create an ambiguity.").
The final question is whether the trailer was "owned or operated by or rented or loaned to any insured." (Doc. 45-5 at 19). The Underlying Complaint states that the trailer was "owned by Acqu[a]fredda." (Doc. 45-4 at 3). It is undisputed that Acquafredda, as the owner of Southland, is an insured under the Insurance Policy, as that term is defined by the policy. (See Doc. 44 at 1 (stating that Acquafredda is the owner of Southland); see generally Doc. 51 (not disputing such)); Fed. R. Civ. P. 56(e) ("If a party fails to ... properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion.").
Alternatively, if Acquafredda is not an insured under the Insurance Policy, then the allegations in Count I of the Underlying Complaint do not fairly bring the claim within coverage because the Insurance Policy only covers Southland and Acquafredda as "insureds." (Doc. 45-4 at 1–4; Doc. 45-5 at 24). Or, based on the remaining allegations in the Underlying Complaint, the trailer was being operated by Southland while Wolfe was acting within the course and scope of his employment, (Doc. 45-4 at 7), which also triggers the Auto Exclusion, (Doc. 45-5 at 19).
Having determined that Wolfe's death was a " ‘[b]odily injury’ ... arising out of the ... use ... [by] others of any ... ‘auto’ ... owned ... by ... any insured," (Doc. 45-5 at 19), the Auto Exclusion applies, and the claims in the state court case are not covered by the Insurance Policy. Therefore, Plaintiff has no duty to defend the state court case under the Insurance Policy. Consequently, it follows that Plaintiff also has no duty to indemnify. See Trailer Bridge, Inc. v. Ill. Nat. Ins. Co. , 657 F.3d 1135, 1146 (11th Cir. 2011) ("A court's determination that the insurer has no duty to defend requires a finding that there is no duty to indemnify." (quotation omitted)). Accordingly, summary judgment is due to be granted to Plaintiff on both the duty to defend and the duty to indemnify.
Because the application of the Auto Exclusion is dispositive of Plaintiff's duty to defend, the Court need not address whether the Bodily Injury Exclusion applies.
IV. CONCLUSION
In accordance with the foregoing, it is ORDERED and ADJUDGED as follows:
1. Plaintiff's Motion for Summary Final Judgment (Doc. 44) is GRANTED .
2. The Clerk is directed to enter a declaratory judgment in favor of Plaintiff, stating that Plaintiff has no duty to defend or indemnify Defendants Southland Lawn Care, Inc. or Anthony Acquafredda under Policy No. ACP GLZO 5944720720 in relation to the claims made in Case No. 2017-CA-045278.
3. Plaintiff's Motion to Remove Matter from Jury Trial Date/Calendar (Doc. 75) is DENIED as moot . The Jury
Trial (Doc. 70) currently to begin on January 11, 2022, is CANCELLED .
4. The Clerk is directed to close this case.
DONE and ORDERED in Orlando, Florida on December 9, 2021.