Certain Underwriters at Lloyds v. Waveblast Watersports, Inc.

• Decision Date: 14 January 2015
• Docket Number: Case No. 13–61979–CIV.
• Parties: CERTAIN UNDERWRITERS AT LLOYDS, LONDON SUBSCRIBING TO POLICY NO. SA 10092–11581, Plaintiff, v. WAVEBLAST WATERSPORTS, INC., Waveblast Watersports II, Inc., Casey Fuller, Jeffrey Zabadal, Sands Harbor, Inc., and Scottsdale Insurance Company, Defendants.
• Court: U.S. District Court — Southern District of Florida

80 F.Supp.3d 1311

CERTAIN UNDERWRITERS AT LLOYDS, LONDON SUBSCRIBING TO POLICY NO. SA 10092–11581, Plaintiff

v.WAVEBLAST WATERSPORTS, INC., Waveblast Watersports II, Inc., Casey Fuller, Jeffrey Zabadal, Sands Harbor, Inc., and Scottsdale Insurance Company, Defendants.

Case No. 13–61979–CIV.

United States District Court, S.D. Florida.

Signed Jan. 14, 2015.

Chris Gabriel, Christopher W. Baker, Harrison H. Yoss, Thompson, Coe, Cousins & Irons, LLP, Dallas, TX, Domingo Carlos Rodriguez, Rodriguez Law Office, LLC, Sarah Dawn Schooley, Schooley Law, Miami, FL, for Plaintiff.

Richard Mark Benrubi, Liggio Benrubi & Williams, Karen Elizabeth Terry, Searcy Denney Scarola Barnhart & Shipley, West Palm Beach, FL, John Edward Herndon, Jr., Conroy Simberg Ganon Krevans Abel Lurvey Morrow & Schefer, Tallahassee, FL, A. Hinda Klein, Conroy Simberg Ganon Krevans & Abel, Hollywood, FL, Michael Francis Kelley, Valle & Craig, Miami, FL, Fay E. Ryan, Jennifer J. Kennedy, Kimberly Nanice Gorak, Butler Pappas Weihmuller Katz Craig, Tampa, Fl, for Defendants.

ORDER

BETH BLOOM, District Judge.

THIS CAUSE is before the Court on Defendant Sands Harbor, Inc.'s Motion for Summary Judgment, ECF No. [84], joined by Defendant Scottsdale Insurance Company, see ECF No. [87]; Plaintiff's Partial Motion for Summary Judgment, ECF No. [86]; and Defendants Scottsdale Insurance Company and Sands Harbor, Inc.'s Motions to Strike, ECF Nos. [93], [95]. The Court is fully advised after careful review of the record, the parties' briefs, and the applicable law.

I. Background

Plaintiff filed this action on September 11, 2013, seeking a judgment under the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., that Plaintiff owes no duty to defend or indemnify Defendants Waveblast Watersports Inc., Waveblast Watersports II, Inc., Casey Fuller, Jeffrey Zabadal, Sands Harbor, Inc., or Scottsdale Insurance Company, or to provide insurance coverage or defense of claims made against any or all of the parties of this case by Steven Miskell, as administrator of the Estate of Kathleen Miskell, deceased, or individually, for bodily injury, wrongful death or other damages, in any lawsuits which may be filed within the jurisdiction of this Court arising out of Kathleen Miskell's death during a parasailing accident. Defendants Waveblast and Waveblast II filed counterclaims against Plaintiff, requesting that the Court issue a declaratory judgment that Plaintiff has the duty to defend and indemnify them in the underlying lawsuit. See ECF No. [65] at 8. Defendant Sands Harbor filed a counterclaim against Plaintiff, stating two counts—the first for declaratory relief that Plaintiff has the duty to defend and indemnify it in the underlying lawsuit, see ECF No. [66] at 13, and the second for breach of contract for Plaintiff's failure to defend and has requested attorney's fees. Id. at 14–15.

Plaintiff is the insurer of a policy, number SA10092–11581, pursuant to which Defendant Waveblast is the named insured, and Defendant Sands Harbor is named as an additional insured. See ECF No. [86–2] at 1, 4. Defendant Scottsdale is the insurer of a policy, number BCS0025806, pursuant to which Defendant Sands Harbor is the named insured. See ECF No. [86–5] at 4. The underlying complaint alleges:

47. On or about August 15, 2012, Stephen Miskell and Kathleen Miskell were invitees at the Sands Harbor Hotel and Resort and went to that facility because it offered and/or advertised recreational parasail excursions from its location.

48. Upon arriving at the Defendant, Sands Harbor Resort, Stephen Miskell and Kathleen Miskell were offered a parasailing excursion by Defendants, Sands Harbor, Waveblast II and Waveblast. Due to an oncoming storm, Stephen Miskell and Kathleen Miskell were told to wait at the bar area of the Sands Harbor Resort until the storm passed.

49. Sometime later, the storm passed and Defendants, Sands Harbor, Waveblast II and/or Waveblast undertook to provide a tandem parasail excursion to Stephen Miskell and Kathleen Miskell. The excursion left from a marina owned and operated by Defendant Sands Harbor, and the marina is also adjacent to the bar area of Sands Harbor. Waveblast II and/or Waveblast had an office in the Sands Harbor Hotel as well. The excursion was to occur in the navigable waters offshore from Pompano Beach, Broward County, Florida, utilizing Defendants, Sands Harbor, Waveblast II and/or Waveblast's parasail vessel, the vessel's crew, and its/their parasail equipment. The parasail apparel, appurtenances, etc. (“the equipment”) were provided, distributed and/or sold by Defendants, Custom Chutes and/or Waterbird and/or Sport Chutes. Sport Chutes and/or Custom Chutes served as Waterbird's distributor in the U.S. and sold Waterbird products including parasail harnesses.

50. During the Parasail excursion, while the parasail containing Stephen Miskell and Kathleen Miskell was aloft and being towed by the Defendants, Waveblast II and/or Waveblast parasailing vessel, and at which time the parasail was at a height above the surface of the water of 150' or more, the harness in which Kathleen Miskell was secured malfunctioned and/or failed, and Kathleen Miskell plummeted into the water.

51. The fall from the parasail into the water as aforesaid resulted in the death of Kathleen Miskell, Plaintiff's decedent.

ECF No. [82–1] at 11–12.

The Court granted Plaintiff's Motion for Entry of Final Default Judgment as to Defendants Fuller and Zabadal, ruling that no coverage exists for these Defendants, and Plaintiff has no duty to defend or indemnify these Defendants in the underlying lawsuit. See ECF No. [35].

II. Discussion

a. Motion to Strike

Defendants Scottsdale Insurance Company and Sands Harbor move to strike Plaintiff's Response in Opposition to Defendant Scottsdale's Motion for Summary Judgment, ECF No. [88], on the grounds that “Lloyds' ‘response’ is nothing more than a second, successive motion for summary judgment on the issue of priority of coverage.” ECF No. [93] at 4.

“The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Granting motions to strike are generally disfavored. Lake Lucerne Ass'n v. Dolphin Stadium Corp., 801 F.Supp. 684, 694 (S.D.Fla.1992) (citing Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir.1982) ). However, Rule 12(f) only applies to “pleadings,” defined by Fed.R.Civ.P. 7(a) to include only a complaint, an answer to a complaint, an answer to a counterclaim, an answer to a crossclaim, a third-party complaint, an answer to a third-party complaint, and a reply to an answer (if the court orders one). See Vanderwall v. United Airlines, Inc., No. 14–CIV–60256, 2014 WL 4755219, at *1 (S.D.Fla. Sept. 23, 2014) (citing cases). While Plaintiff seemingly concedes coverage exists, the Response addresses the construction of the policies at issue and is filed in accordance with the Federal Rules. Accordingly, the Motions to Strike are denied.

b. Summary Judgment Motions

Plaintiff has moved for Partial Summary Judgment—seeking a ruling on coverage priority with Defendant Scottsdale for Defendant Sands Harbor's defense and/or indemnity. Defendant Sands Harbor has moved for Final Summary Judgment—seeking a ruling that Plaintiff has a duty to defend and indemnify Defendant Sands Harbor with respect to the claims stated in the underlying lawsuit. Defendant Scottsdale has adopted Defendant Sands Harbor's Motion.

i. Legal Standard

The parties have filed and briefed cross-motions for summary judgment on the same legal issue—Plaintiff's coverage with respect to Defendant Sands Harbor and priority with respect to Defendant Scottsdale. A district court's disposition of cross-motions for summary judgment employs the same legal standards applied when only one party files a motion. See United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984). “Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts.” S. Pilot Ins. Co. v. CECS, Inc., 52 F.Supp.3d 1240, 1243, 2014 WL 4977805, at *2 (N.D.Ga.2014) (citing Oakley, 744 F.2d at 1555–56 ).

A party may obtain 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). The parties may support their positions by citation to the record, including inter alia, depositions, documents, affidavits, or declarations. Fed.R.Civ.P. 56(c). An issue is genuine if “a reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 477 U.S. at 247–48, 106 S.Ct. 2505 ). The Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in the party's favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir.2006). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which a jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Further, the Court does not weigh conflicting evidence. See Skop v. City of Atlanta, GA, 485 F.3d 1130, 1140 (11th Cir.2007) (quoting Carlin Comm'n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir.1986) ).

The moving party shoulders the initial burden of showing the absence of a genuine issue of material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.2008). Once this burden is satisfied, “the nonmoving party ‘must do more than simply show that there is some metaphysical doubt...