Aix Specialty Ins. Co. v. Ashland 2 Partners, LLC
| Decision Date | 19 April 2019 |
| Docket Number | Case No: 8:18-cv-209-T-36SPF |
| Citation | 383 F.Supp.3d 1334 |
| Parties | AIX SPECIALTY INSURANCE COMPANY, Plaintiff, v. ASHLAND 2 PARTNERS, LLC and Demetra Asberry, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Gregory A. Victor, Tiya S. Rolle, DeMahy Labrador Drake Payne & Cabeza, Coral Gables, FL, Scott A. Markowitz, DeMahy Labrador Drake Payne & Cabeza, Fort Lauderdale, FL, for Plaintiff.
Ashland 2 Partners, LLC, pro se.
Christopher R. Violette, Moran, Sanchy & Associates, Sarasota, FL, William John Gadd, W. John Gadd, Attorney at Law, Clearwater, FL, Dean Burnetti, Dean Burnetti Law, Lakeland, FL, for Defendants.
This matter comes before the Court upon the Plaintiff's Amended Motion for Summary Judgment (the "Motion") (Doc. 44), Defendants' response in opposition (Doc. 47), and the Stipulation of Agreed Facts Pursuant to Local Rule 4.15 and Case Management and Scheduling Order (the "Stipulation") (Doc. 46). In the Motion, Plaintiff states it has no duty to defend or indemnify its insured, Ashland 2 Partners, LLC, in Demetra Asberry's underlying tort action because the assault and battery exclusion applies under these facts. The Court, having considered the Motion, Stipulation, complaint in the underlying action, policy at issue, and being fully advised in the premises will grant Plaintiff's Amended Motion for Summary Judgment.
Plaintiff, AIX Specialty Insurance Company ("AIX"), insured Defendant Ashland 2 Partners, LLC, ("Ashland") under a surplus commercial general liability policy numbered L1J-A582378-02 with effective dates March 13, 2017, through March 13, 2018, (the "Policy"). Doc. 46-1. Ashland operated a business called "The Hall" at 1330 U.S. Highway 301 N, Palmetto, Florida. Doc. 46 at ¶ 3. The Policy provided coverage for occurrences at the address that corresponds to The Hall's location. See Doc. 46-1 at 6. AIX is providing Ashland a defense in Asberry's underlying tort action subject to a reservation of rights. Doc. 46 at ¶ 7.
Plaintiff seeks a declaration that it has no duty to defend or indemnify Ashland against Asberry's lawsuit regarding an incident that occurred at The Hall Doc. 1. It requests a determination of no coverage under the Policy based on the "Assault and Battery and Other Physical Altercation" exclusion.
In the underlying litigation, Case No. 2017-CA-3469 pending before the 12th Judicial Circuit in and for Manatee County, Florida, Asberry alleges the following. On June 10, 2017, she was an invitee of a nightclub called "The Hall." Doc. 44-2 at ¶ 7. Ashland's employee/agent/servant, "John Doe," negligently handled her by grabbing her and knocking her to the floor. Id. Asberry sustained personal injuries. Id. at ¶ 8. Ashland is vicariously liable for John Doe's negligence and directly liable for its negligent supervision of its employee. Id. at ¶¶ 10, 14.
In her deposition, Asberry stated that while she was on the stage waiting for a music performer to arrive, "TJ, the bouncer" walked around and asked everyone to step back. The crowd stepped back, but he returned and asked them to step back more. She showed him her VIP badge to indicate that she could be on the stage. He told her "Fuck your badge," and "out of nowhere" grabbed her by wrapping both arms around her in a "bear hug." They fell off the stage and he landed on top of her. Doc. 44-3 at 36:4-18, 43:5-44:2. The grab and fall resulted in scratches on her side in the rib area. Id. at 49:1-25.
Asberry contests the application of the "Assault, Battery, or Other Altercation" exclusion. She argues that the evidence does not establish that the person who grabbed her intended to cause a fall from the stage; only that he negligently mishandled her. Thus, she argues, the Court cannot find as a matter of law that the exclusion applies under these facts.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of stating the basis for its motion and identifying those portions of the record demonstrating the absence of genuine issues of material fact. Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ; Hickson Corp. v. N. Crossarm Co. , 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden can be discharged if the moving party can show the court there is "an absence of evidence to support the nonmoving party's case." Celotex , 477 U.S. at 325, 106 S.Ct. 2548.
When the moving party has discharged its burden, the nonmoving party must then designate specific facts showing there is a genuine issue of material fact. Id. at 324, 106 S.Ct. 2548. Issues of fact are "genuine only if a reasonable jury, considering the evidence present, could find for the nonmoving party," and a fact is "material" if it may affect the outcome under governing law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, the court must consider all the evidence in the light most favorable to the nonmoving party. Celotex , 477 U.S. at 323, 106 S.Ct. 2548. However, a party cannot defeat summary judgment by relying upon conclusory allegations. See Hill v. Oil Dri Corp. of Ga. , 198 Fed. Appx. 852, 858 (11th Cir. 2006).
In this diversity case, the substantive law of the forum state, Florida, applies. Sphinx Int'l, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. , 412 F.3d 1224, 1227 (11th Cir. 2005). A declaratory judgment is an appropriate method for the court to determine coverage issues, including the duty to defend and indemnify. Higgins v. State Farm Fire & Cas. Co. , 894 So. 2d 5, 9 (Fla. 2004). Under Florida law, the interpretation of an insurance contract is a matter of law to be decided by the court. Gulf Tampa Drydock Co. v. Great Atl. Ins. Co. , 757 F.2d 1172, 1174 (11th Cir. 1985) (citing Smith v. State Farm Mut. Auto. Ins. Co. , 231 So. 2d 193, 194 (Fla. 1970) ).
The duty to defend is generally determined from the allegations of the underlying suit. Stephens v. Mid–Continent Cas. Co. , 749 F.3d 1318 (11th Cir. 2014) ; Meridian Constr. & Dev., LLC v. Admiral Ins. Co. , 105 F.Supp. 3d 1331, 1338 (M.D. Fla. 2013). The underlying suit triggers a duty when its allegations assert facts that could bring the injury within the policy's coverage. State Farm Fire & Cas. Co. v. Steinberg , 393 F.3d 1226, 1230 (11th Cir. 2004). A duty to defend the entire suit arises even if the complaint alleges facts "partially within and partially outside the scope of coverage." Auto–Owners Ins. Co. v. Elite Homes, Inc. , 676 Fed. Appx. 951, 954 (11th Cir. 2017) (citation omitted); Trailer Bridge, Inc. v. Ill. Nat'l Ins. Co. , 657 F.3d 1135, 1141–42 (11th Cir. 2011).
There is no duty to defend if there is no doubt that the allegations of the underlying suit do not fall within the policy's coverage. Lawyers Title Ins. Corp. v. JDC (Am.) Corp. , 52 F.3d 1575, 1580-81 (11th Cir. 1995). The burden of demonstrating that the allegations of the underlying suit are "cast solely and entirely within the policy exclusion" rests with the insurer. Hartford Accident and Indem. Co. v. Beaver , 466 F.3d 1289, 1296 (11th Cir. 2006) (quotation omitted).
The duty to defend is broader than the duty to indemnify because the duty to indemnify is determined by the actual underlying facts as opposed to the allegations. Jones v. Fla. Ins. Guar. Ass'n, Inc. , 908 So. 2d 435, 442-43 (Fla. 2005). If the Court finds no duty to defend, then no duty to indemnify exists.
The Court looks to the "eight corners" of the underlying suit and policy to assess whether they trigger Plaintiff's duty to defend. "[T]he trial court is restricted to the allegations of the [underlying] complaint, regardless of what the defendant and others say actually happened." Marr Inv., Inc. v. Greco , 621 So. 2d 447, 449 (Fla. 4th DCA 1993) (citation omitted).
Here, the Policy's exclusion provides:
Doc. 44-1 at 21 (emphasis added).
The Policy does not define the terms assault or battery, which is typical. See Evanston Ins. Co. v. S & Q Prop. Inv., LLC , 2012 WL 4855537, at *2 (M.D. Fla. 2012). But "[t]he mere failure to provide a definition of a term involving coverage does not render the term ambiguous." Those Certain Underwriters at Lloyd's London v. Karma Korner, LLC , 2011 WL 1150466, at *2 (M.D. Fla. 2011) (citation omitted). When the policy does not define a term, the plain and generally accepted meaning should be applied. Evanston , 2012 WL 4855537, at *2 (citation omitted); Karma Korner , 2011 WL 1150466, at *2.
Under Florida law, assault is "an...
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