Cincinnati Specialty Underwriters Ins. Co. v. KNS Grp., LLC
| Decision Date | 20 September 2021 |
| Docket Number | CASE NO. 20-61349-CIV-DIMITROULEAS |
| Citation | 561 F.Supp.3d 1298 |
| Parties | The CINCINNATI SPECIALTY UNDERWRITERS INSURANCE COMPANY, Plaintiff, v. KNS GROUP, LLC and GM&P Consulting and Glazing Contractors, Inc., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Neil Anthony Covone, Susan Jane Cole, Bice Cole Law Firm, P.L., Coral Gables, FL, Caryn Lynn Bellus, Kubicki Draper, Miami, FL, David Arthur Glenny, Bice Cole Law Firm, Ocala, FL, for Plaintiff.
Alexandra Sierra-De Varona, De Varona Law, Boca Raton, FL, for Defendant KNS Group, LLC.
Justin Michael Thomas, Boyle, Leonard, P.A., Fort Myers, FL, for Defendant GM&P Consulting and Glazing Contractors, Inc.
Sina Bahadoran, Eftihios Evan George Andronis, Clyde & Co., Miami, FL, for Defendant Gemini Insurance Company.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This Matter is before the Court on The Cincinnati Specialty Underwriters Insurance Company ("Cincinnati")’s Motion for Summary Judgment Against KNS Group, LLC [DE 49] ("Cincinnati's Motion as to KNS"), Cincinnati's Motion for Summary Judgment Against GM&P Consulting and Glazing Contractors, Inc. [DE 73] ("Cincinnati's Motion as to GM&P"), Cincinnati's Motion for Partial Summary Judgment as to Counts II and III of Intervening Plaintiff Gemini's Complaint [DE 75] ("Cincinnati's Motion as to Gemini"), KNS Group, LLC ("KNS")’s Motion for Summary Judgment Against Cincinnati [DE 77] ("KNS's Motion"), Gemini Insurance Company ("Gemini")’s Motion for Summary Judgment Against Cincinnati [DE 79] ("Gemini's Motion"), and GM&P Consulting & Glazing Contractors, Inc. ("GM&P") Motion for Summary Judgment Against Cincinnati [DE 80] ("GM&P's Motion"). The Court has considered the Motions [DEs 49, 73, 75, 77, 79, 80], the Responses [DEs 60, 62, 87, 89, 91, 94, 96], the Replies [DEs 70, 71, 100, 101, 102, 103, 104, 106, 107], the statements of material fact [DEs 50, 61, 63, 72, 74, 76, 78, 81, 82, 83, 88, 90, 92, 95, 97, 105, 108], and is otherwise fully advised in the premises.
Plaintiff Cincinnati issued KNS two commercial general liability policies of insurance ("Policies") which are the topic of the instant litigation. Cincinnati contends that it does not have a duty to defend or indemnify KNS for the claims brought by GM&P in the Underlying Action.
In the underlying action, PPE Casino Resorts Maryland, LLC ("PPE") asserts GM&P was negligent in furnishing materials and installing the glass façade in the construction of the Maryland Live! Casino and Hotel (the "Project"). Cincinnati SMF ¶ 4, 5, 8 [DE 50] (herein referred to as the "Amended Complaint"). GM&P was a subcontractor on the Project who had been retained to furnish labor and material for exterior glazing on the Project. Cincinnati SMF ¶ 4,5 [DE 50]
In turn, GM&P brought a third-party complaint asserting that KNS was negligent in the performance of glazing installation work. Cincinnati SMF ¶ 9 [DE 50]. The third-party complaint brings claims against KNS for breach of contract, contractual indemnification, negligence, common law indemnification, and contribution (herein referred to as the "Underlying Action" or "Third-Party Complaint"). Among the allegations, the Third-Party Complaint alleges that GM&P failed to install non-conforming bolts in concrete slabs, failed to advise some concrete slabs were out of tolerance, and failed to properly layout the means of fastening glass panels to the "18th level structural steel support system." KNS SMF ¶ 6 [DE 78]. Specifically, GM&P alleges that, if PPE's allegations regarding faulty construction are proven true, then KNS breached its contract with GM&P by failing to properly perform its work.
GM&P entered into a subcontract with KNS on or about June 5, 2017 for KNS to perform "glazing of glass and installation of window walls". Cincinnati SMF ¶ 11 [DE 50]. KNS performed work on the Project between June and October 2017 when GM&P replaced KNS with another subcontractor. Cincinnati SMF ¶ 10 [DE 50]. GM&P terminated its contract with KNS before KNS completed its work and retained a substitute subcontractor to repair, replace and remedy the work KNS had done. Cincinnati SMF ¶ 10 [DE 50].
This matter is a declaratory judgment action to determine the rights of Defendants KNS and GM&P under commercial general liability insurance policies issued by Plaintiff Cincinnati to KNS. In its complaint, Cincinnati alleged the following causes of actions against Defendants: Count I—Declaratory Judgment against KNS (duty to defend); Count II—Declaratory Judgment against KNS (duty to indemnify); Count III—Declaratory Judgment against GM&P (duty to defend); and Count IV—Declaratory Judgment against GM&P (duty to indemnify). See [DE 1]. GM&P has filed a Counterclaim [DE 25] seeking a declaration that Cincinnati owes to GM&P a duty to defend GM&P as to the claims asserted by PPE in the underlying Amended Complaint and that Cincinnati owes to GM&P a duty to indemnify GM&P for the damages awarded in favor of PPE and against GM&P in the underlying Amended Complaint. See [DE 25]. On January 13, 2021 Gemini Insurance Company ("Gemini"), who issued its own insurance policy to GM&P, filed a Complaint in Intervention seeking a determination that GM&P is an insured under the Cincinnati policy and that the Cincinnati policy is primary to the Gemini policy. See [DE 48].
All Parties have filed motions for summary judgment adjudicating the respective rights of various parties under the contract.
Under Rule 56(a), "[t]he 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). The movant bears "the stringent burden of establishing the absence of a genuine issue of material fact." Sauve v. Lamberti , 597 F. Supp. 2d 1312, 1315 (S.D. Fla. 2008) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).
"A fact is material for the purposes of summary judgment only if it might affect the outcome of the suit under the governing law." Kerr v. McDonald's Corp. , 427 F.3d 947, 951 (11th Cir. 2005) (internal quotations omitted). Furthermore, "[a]n issue [of material fact] is not ‘genuine’ if it is unsupported by the evidence or is created by evidence that is ‘merely colorable’ or ‘not significantly probative.’ " Flamingo S. Beach I Condo. Ass'n, Inc. v. Selective Ins. Co. of Southeast , 492 F. App'x 16, 26 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "A mere scintilla of evidence in support of the nonmoving party's position is insufficient to defeat a motion for summary judgment; there must be evidence from which a jury could reasonably find for the non-moving party." Id. at 26-27 (citing Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ). Accordingly, if the moving party shows "that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party" then "it is entitled to summary judgment unless the nonmoving party, in response, comes forward with significant, probative evidence demonstrating the existence of a triable issue of fact." Rich v. Sec'y, Fla. Dept. of Corr. , 716 F.3d 525, 530 (11th Cir. 2013) (citation omitted).
"When the only question a court must decide is a question of law, summary judgment may be granted." Saregama India Ltd. v. Mosley , 635 F.3d 1284, 1290 (11th Cir. 2011). "Contract and statutory interpretation are both questions of law appropriately decided on summary judgment." Bastian v. United Servs. Auto. Ass'n , 150 F. Supp. 3d 1284, 1288 (M.D. Fla. 2015).
When construing insurance policies, federal courts are required to apply state law. Travelers Indem. Co. v. PCR Inc. , 326 F.3d 1190, 1193 (11th Cir. 2003). Under Florida law, "[i]t is well settled that an insurer's duty to defend its insured against a legal action arises when the complaint alleges facts that fairly and potentially bring the suit within policy coverage." Jones v. Fla. Ins. Guar. Ass'n, Inc. , 908 So. 2d 435, 442–43 (Fla. 2005). "The duty to defend must be determined from the allegations in the complaint." Id. at 443. "Although the alleged facts may fall within the coverage of the policy, if the face of the complaint shows the applicability of an exclusion, the insurer has no duty to defend." O'Rear v. Greenwich Ins. Co. , No. 8:09-CV-1903-T-26TGW, 2010 WL 4867527, at *2–3 (M.D. Fla. Nov. 23, 2010), aff'd , 432 F. App'x 877 (11th Cir. 2011). "Where the application of one or more policy exclusions applies to the face of the complaint, no duty to defend exists, even if the complaint alleges facts that would otherwise give rise to a covered claim." Id. (quoting Chicago Title Ins. Co. v. Northland Ins. Co. , 31 So.3d 214, 216 (Fla. 4th DCA 2010) ).
When interpreting insurance contracts under Florida law, the contract is construed according to its "plain meaning." Mills v. Foremost Ins. Co. , 511 F.3d 1300, 1304 (11th Cir. 2008). The insurance contract is ambiguous if its language lends itself to more than one interpretation. Id. "Ambiguous policy provisions ... should be construed liberally in favor of coverage of the insured and strictly against the insurer." Dickson v. Econ. Premier Assur. Co. , 36 So. 3d 789, 790 (Fla. 5th DCA 2010). Furthermore, ambiguous "exclusionary clauses are construed even more strictly against the insurer than coverage clauses." Auto-Owners Ins. Co. v. Anderson , 756 So. 2d 29, 34 (Fla. 2000). However, "strict construction does not mean ... that clear words may be tortured into uncertainty so that new meanings can be added." State Farm Fire & Cas. Ins. Co. v. Deni Assocs. of Fla., Inc. , 678 So. 2d 397, 401 (Fla. 4th DCA 1996), on reh'g (Aug. 20, 1996), approved, 711 So. 2d 1135 (Fla. 19...
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