Chestnut Assocs., Inc. v. Assurance Co. of Am.
| Decision Date | 29 April 2014 |
| Docket Number | Case No. 8:13–CV–1755–T–17TBM. |
| Citation | 17 F.Supp.3d 1203 |
| Parties | CHESTNUT ASSOCIATES, INC., Plaintiff, v. ASSURANCE COMPANY OF AMERICA, Zurich d/b/a Zurich Small Business and Maryland Casualty Company, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Daniel Patrick Rock, Daniel P. Rock, PA, Thomas P. Altman, Law Office of James J. Altman, New Port Richey, FL, for Plaintiff.
Sina Bahadoran, J. Derek Womack, Hinshaw & Culbertson, LLP, Coral Gables, FL, for Defendants.
This cause is before the Court on:
This case is an action for declaratory relief. Plaintiff Chestnut Associates, Inc. seeks a declaration of Plaintiff's rights and duties under the insurance policy issued to Plaintiff, the costs of suit, and other appropriate relief. Plaintiffs allege that Defendants refused to defend Plaintiff in a lawsuit filed against Plaintiff in Pasco County Circuit Court, Brian Jansen and Cheryl Jansen v. Chestnut Associates, Inc. d/b/a PINCH–A–PENNY, a Florida corporation, Case No. 51–2011–CA–1952–WS. The Complaint in that case includes two counts of intentional infliction of emotional distress, for which Brian Jansen and Cheryl Jansen seek a judgment for damages. Plaintiff has attached Defendants' response to Plaintiff's claim, in which Defendants deny the duty to defend and the duty to indemnify. (Dkt. 2–1, pp. 55–56).
Defendants Assurance Company of America and Maryland Casualty Company (“Assurance”) move for entry of summary judgment, seeking a declaration that Assurance has no obligation to defend or indemnify Plaintiff for the above lawsuit for intentional infliction of emotional distress.
In the Response to Order to Show Cause (Dkt. 26), Plaintiff states this case is moot, due to non-prosecution of the underlying complaint. The Court has examined the court records of Pasco County Circuit Court, and notes that the underlying case is listed as an open case. The case has not been dismissed. The Court will therefore rule on the pending motions in this case.
Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
“The plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The appropriate substantive law will guide the determination of which facts are material and which facts are ... irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. But, “[i]f the evidence is merely colorable ... or is not significantly probative ... summary judgment may be granted.” Id. at 249–50, 106 S.Ct. 2505.
Plaintiff does not disagree with any of the facts recited by Defendant.
1. Jansen filed suit against Chestnut in the Sixth Judicial Circuit in and for Pasco County, Florida, Case no. 51–2011–CA–1952–WS.
2. In the complaint, Jansen alleges that Chestnut's pool service technician came to his house in Holiday, Florida to service the swimming pool.
3. Jansen alleges that “the pool service technician removed all of his clothes and entered the pool naked.” The technician then “sexually pleasured himself in the pool” and “brought this sexual behavior to conclusion by casting ejaculate into [Jansen's] pool.”
4. Jansen alleges that Chestnut's “pool service technician intended and knew or should have known that emotional distress would likely result of [Jansen] as a result of this subject behavior.”
5. Jansen seeks damages for emotional distress, mental anguish, embarrassment, humiliation, loss of dignity and diminution of the value of his house.
6. The only cause of action alleged in the underlying complaint is for intentional infliction of emotional distress.
7. Assurance Company of America issued a Precision Portfolio Policy to “Chestnut Associates, Inc DBA Pinch A Penny” as the named insured, bearing Policy No. PAS 43556472, and effective from 7/21/2010 through 7/21/2011.
8. The Policy provides:
This insurance does not apply to:
Under Florida law, the issue of an insurer's duty to defend a lawsuit against its insured is governed by the terms of the policy and the allegations of the complaint. See Nat'l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533, 536 (Fla.1977) (); McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 758 So.2d 692, 695 (Fla. 4th DCA 2000) () (emphasis in original) (quoting Marr Invs., Inc. v. Greco, 621 So.2d 447, 449 (Fla. 4th DCA 1993) ); Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So.2d 810, 813 (Fla. 1st DCA 1985) (); C.A. Fielland, Inc. v. Fid. & Cas. Co., 297 So.2d 122, 127 (Fla. 2d DCA 1974) (). This rule is called the “eight corners rule,” a reference to the four corners of the policy and the four corners of the complaint. See Colony Ins. Co. v. Barnes, 410 F.Supp.2d 1137 (N.D.Fla.2005). If the complaint alleges any claim that, if proven, might come within the insurer's indemnity obligation, the insurer must defend the entire action. Id. at 1139.
The construction of an insurance policy is a question of law for the court. Jones v. Utica Mutual Ins. Co., 463 So.2d 1153, 1157 (Fla.1985) ; Roberts v. Florida Lawyer's Mutual Ins. Co., 839 So.2d 843, 845 (Fla. 4th DCA 2003). Insurance contracts are construed according to their plain meaning. Garcia v. Fed. Ins. Co., 969 So.2d 288, 291 (Fla.2007). If the policy language is not ambiguous, courts apply the plain language of the policy. HC Waterford Props., Inc. v. Mt. Hawley Ins. Co., 2009 WL 2600431, *3 (S.D.Fla. 8/21/2009). A policy is ambiguous when the language is subject to “more than one reasonable interpretation, one providing coverage and the [sic] another limiting coverage....” Auto–Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000). Any ambiguities in an insurance policy are to be interpreted liberally and in favor of the insured and strictly against the insurer. See Flores v. Allstate Ins. Co., 819 So.2d 740, 744 (Fla.2002) ; Anderson, 756 So.2d at 34 : McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 758 So.2d 692, 694–95 (Fla. 4th DCA 1999). [E]xclusionary provisions which are ambiguous or otherwise susceptible to more than one meaning must be construed in favor of the insured, since it is the insurer who usually drafts the policy. See Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 942 (Fla.1979). However, ...
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