Allstate Ins. Co. v. Ginsberg, 99-10983.

Citation351 F.3d 473
Decision Date14 November 2003
Docket NumberNo. 99-10983.,99-10983.
PartiesALLSTATE INSURANCE COMPANY, Allstate Indemnity Company, Plaintiffs-Appellees-Cross-Appellants, v. Victor GINSBERG, Elaine A. Scarfo, Defendants-Appellants-Cross-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Maurice J. Baumgarten, Anania, Bandklayder & Blackwell, Miami, FL, Martha Ann Chapman, Orlando, FL, for Ginsberg and Scarfo.

David Bryan Shelton, Rumberger, Kirk & Caldwell, Orlando, FL, for Plaintiffs-Appellees-Cross-Appellants.

Appeals from the United States District Court for the Southern District of Florida.

Before ANDERSON and DUBINA, Circuit Judges.1

PER CURIAM:

This appeal involves a declaratory judgment action brought by Allstate Insurance Company and Allstate Indemnity Company asking the district court to declare whether they had a duty to defend their insured, Victor Ginsburg, in Elaine A. Scarfo's state court invasion of privacy action against him. On cross motions for summary judgment, the district court issued an order granting summary judgment in favor of Allstate. The district court concluded that Scarfo's allegations of unwelcome conduct did not state a cause of action for invasion of privacy under the relevant category of that tort identified by the Supreme Court of Florida as "intrusion — physically or electronically intruding into one's private quarters." Agency for Health Care Admin. v. Assoc. Indus. of Florida, Inc., 678 So.2d 1239, 1252 n. 20 (Fla.1996).

Because the Supreme Court of Florida had never directly considered whether intrusion into "one's private quarters" included unwelcome conduct directed to one's physical person, the district court looked to the Florida intermediate courts for guidance and noted that the intermediate courts appeared divided on that question. The district court concluded that the approach taken by Florida's Fourth District Court of Appeal was more in accord with the category of intrusion identified by the Supreme Court of Florida. Thus, based on the Fourth District Court of Appeal's rationale in Guin v. City of Riviera Beach, 388 So.2d 604 (Fla.Dist.Ct.App. 1980), the district court concluded that the invasion of privacy tort could not be "construed so broadly as to include a battery occurring in the workplace absent an intrusion into a place where the victim has a reasonable expectation of privacy." [Dist. Ct. Order at 8]. Consequently, the district court found that Allstate had no duty to defend and granted summary judgment in favor of Allstate. The parties then perfected their appeals.

Because the appeal of this declaratory judgment action presented unsettled questions of state law for which there was no definitive Supreme Court of Florida precedent, we certified the following questions of law to the Supreme Court of Florida:

(1) Do pleadings of unwelcome conduct including touching in a sexual manner and sexually offensive comments state a cause of action for the Florida common law tort law claim of invasion of privacy?

(2) Do allegations of intentional unwelcome conduct including touching in a sexual manner and sexually offensive comments constitute an "occurrence" under Florida law for purposes of insurance coverage?

(3) Do pleadings of unwelcome conduct including touching in a sexual manner and sexually offensive conduct fall within the business exception to coverage when the alleged conduct occurred in the workplace in the context of an employer-employee relationship but did not pertain to the purpose of the business?

(4) Are allegations of intentional invasions of privacy excluded from coverage by an intentional acts exception when the policy expressly provides coverage for invasions of privacy?

The Supreme Court of Florida has answered the first question in the negative. The court then declined to answer the remaining three certified questions because the court concluded that its answer to the first certified question rendered the remaining questions moot. See Allstate Ins. Co. v. Ginsberg, ___ So.2d ___, No. SC 00-2614, 2003 WL 22145227 (Fla. Sept. 18, 2003).

In light of the Supreme Court of Florida's opinion, attached hereto as an appendix, we affirm the district court's order granting summary judgment in favor of Allstate.

AFFIRMED.

APPENDIX

Allstate Insurance Company and Allstate Indemnity Company, Appellants,

v.

Victor Ginsberg and Elaine A. Scarfo, Appellees.

No. SC00-2614.

Supreme Court of Florida.

Sept. 18, 2003.

PER CURIAM:

We have for consideration several issues of Florida law certified by the Eleventh Circuit Court of Appeals that are asserted to be determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const.

This case involves a declaratory decree action, which is proceeding in the federal court. The underlying tort action is proceeding in the state courts of Florida. In Allstate Co. v. Ginsberg, 235 F.3d 1331, 1333 (11th Cir.2000), the Eleventh Circuit reviewed a summary judgment holding that appellants Allstate Insurance Company and Allstate Indemnity Company (Allstate) had no duty to defend a state court complaint against its insured, appellee Victor Ginsberg, for invasion of privacy because the complaint failed to state a privacy claim. In its opinion, the Eleventh Circuit summarized the litigation history of this case:

From November 1991 until September 1992, Elaine A. Scarfo was employed as a secretary for various Florida corporations owned by Victor Ginsberg. Prior to that time, from approximately November 1987 until November 1991, Scarfo worked for her husband without pay at Ginsberg's corporation. On September 18, 1992, Scarfo was terminated. In 1993, Scarfo filed a federal civil rights action against Ginsberg in the United States District Court for the Southern District of Florida, alleging that from approximately 1988 and throughout her employment, Ginsberg subjected her to unwelcome offensive conduct, including physical touching and comments of a sexual nature. In addition, Scarfo's complaint included common law tort claims for battery, intentional infliction of emotional distress, and invasion of privacy.

During the time of the actions alleged by Scarfo, Ginsberg was covered under a Personal Umbrella Policy issued by Allstate, which applies to an "occurrence" anywhere in the world while the insurance is in force. In 1995, Ginsberg tendered the defense of the action to Allstate, demanding that Allstate indemnify him for any potential liability.

Allstate, in providing a defense to the actions under a reservation of rights, filed a declaratory judgment action seeking a determination whether Allstate's policies cover the claims alleged by Scarfo against Ginsberg. In 1997, the district court dismissed Scarfo's federal civil rights action on jurisdictional grounds, and dismissed Scarfo's state law claims without prejudice. The Eleventh Circuit affirmed the dismissal in Scarfo v. Ginsberg, 175 F.3d 957 (11th Cir.1999). Scarfo re-filed her claims against Ginsberg in the state court as common law torts.

The Personal Umbrella Policy in this case provides as follows:

Coverage — When we Pay

Allstate will pay when an insured becomes legally obligated to pay for personal injury or property damage caused by an occurrence.

The policy defines "Personal Injury" as follows:

(a) bodily injury, sickness, disease or death of any person. Bodily injury includes disability, shock, mental anguish and mental injury.

(b) false arrest; false imprisonment; wrongful detention; wrongful entry; invasion of rights; invasion of occupancy; or malicious prosecution;

(c) libel, slander, misrepresentation; humiliation; defamation of character; invasion of rights of privacy; and

(d) discrimination and violation of civil rights, where recovery is permitted by law. Fines and penalties imposed by law are not included.

(Emphasis added.)

The parties filed cross motions for summary judgment, raising the question whether Scarfo properly alleged an invasion of privacy, thereby triggering Allstate's duty to defend. On April 21, 1999, the district court issued an order granting summary judgment in favor of Allstate. The district court concluded that Scarfo's allegations of unwelcome conduct did not state a cause of action for invasion of privacy under the relevant category of that tort identified by the Supreme Court of Florida as "intrusion — physically or electronically intruding into one's private quarters." Agency for Health Care Admin. v. Assoc. Indus. of Florida, Inc., 678 So.2d 1239, 1252 (Fla.1996), cert. denied, 520 U.S. 1115, 117 S.Ct. 1245, 137 L.Ed.2d 327 (1997).

Because the Supreme Court of Florida had never directly considered whether intrusion into "one's private quarters" included unwelcome conduct directed to one's physical person, the district court looked to the Florida intermediate courts for guidance and noted that the intermediate courts appeared divided on that question. The district court concluded that the approach taken by Florida's Fourth District Court of Appeal was more in accord with the category of intrusion identified by the Supreme Court of Florida. Thus, based on the Fourth District's rationale in Guin v. City of Riviera Beach, 388 So.2d 604 (Fla. 4th DCA 1980), the district court concluded that the invasion of privacy tort could not be "construed so broadly as to include a battery occurring in the workplace absent an intrusion into a place where the victim has a reasonable expectation of privacy." The district court held that Allstate had no duty to defend, and granted summary judgment in favor of Allstate. This appeal and cross-appeal followed.

Id. at 1333-34 (footnote omitted).

In view of this Court not having ruled on the precise issue framed by the Eleventh Circuit, the Eleventh Circuit certified four questions to this Court. The questions certified are:

[1] DO PLEADINGS OF UNWELCOME CONDUCT INCLUDING TOUCHING IN A...

To continue reading

Request your trial
3 cases
  • Malphurs v. Cooling Tower Sys., Inc., CIVIL ACTION NO. 5:13-CV-443(MTT)
    • United States
    • United States District Courts. 11th Circuit. Middle District of Georgia
    • March 4, 2016
    ...rather than simply a factor to prove severe emotional distress or the minimum amount of effort a plaintiff must make. 5. 351 F.3d 473 (11th Cir. 2003). 6. 280 Ga. App. 486, 634 S.E.2d 466 (2006). 7. CTS also argues against applying respondeat superior and ratification. (Doc. 25-1 at 17-18).......
  • Catlin Syndicate 2003 v. Rinkus, Case No. 11–60290–CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • July 16, 2012
    ...duty to defend Gulfstream against Eric's claim because Eric failed to state a claim as a matter of law. See Allstate Ins. Co. v. Ginsberg, 351 F.3d 473, 475 (11th Cir.2003) (affirming the district court's declaration that insurer did not have a duty to defend or indemnify insured because th......
  • Catlin Syndicate 2003 v. Rinkus, Case No. 11–60290–CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • July 17, 2012
    ...duty to defend Gulfstream against Eric's claim because Eric failed to state a claim as a matter of law. See Allstate Ins. Co. v. Ginsberg, 351 F.3d 473, 475 (11th Cir.2003) (affirming the district court's declaration that insurer did not have a duty to defend or indemnify insured because th......
2 books & journal articles
  • CHAPTER 9 Comprehensive General Liability Insurance—The Pollution Exclusions
    • United States
    • Full Court Press Insurance for Real Estate-Related Entities
    • Invalid date
    ...Travelers Casualty & Surety Company of America, 267 F. Supp.2d 1041 (D. Colo. 2003). Eleventh Circuit: Allstate Insurance Co. v. Ginsberg, 351 F.3d 473 (11th Cir. 2003). State Courts: California: Stein-Brief Group, Inc. v. Home Indemnity Co., 76 Cal. Rptr.2d 3 (Cal. App. 1998). Connecticut:......
  • Chapter 8
    • United States
    • Full Court Press Business Insurance
    • Invalid date
    ...Travelers Casualty & Surety Company of America, 267 F. Supp.2d 1041 (D. Colo. 2003). Eleventh Circuit: Allstate Insurance Co. v. Ginsberg, 351 F.3d 473 (11th Cir. 2003). State Courts: California: Stein-Brief Group, Inc. v. Home Indemnity Co., 76 Cal. Rptr.2d 3 (Cal. App. 1998). Connecticut:......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT