Depositors Ins. Co. v. Loan Ranger Acquisitions, LLC
| Decision Date | 01 May 2020 |
| Docket Number | Case No: 8:19-cv-851-T-60JSS |
| Citation | 457 F.Supp.3d 1255 |
| Parties | DEPOSITORS INSURANCE COMPANY, Plaintiff, v. LOAN RANGER ACQUISITIONS, LLC, BEMC, LLC d/b/a Locale Market, and Rand Abedrabbo, individually, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Benjamin Lopez, Trevor T. Rhodes, Banker Lopez Gassler, Tampa, FL, for Plaintiff.
Marion Hale, Sharon E. Krick, Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, FL, Stephen Hunter Johnson, Lydecker Diaz, Miami, FL, for Defendant Loan Ranger Acquisitions, LLC.
Marion Hale, Sharon E. Krick, Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, FL, for Defendant BEMC, LLC.
Matthew P. Farmer, Farmer & Fitzgerald, PA, Tampa, FL, for Defendant Rand Abedrabbo.
This case is before the Court on cross-motions for summary judgment: "Plaintiff's Renewed Motion for Summary Judgment" (Doc. 51), filed by Depositors Insurance Company, and Defendant "Loan Ranger Acquisitions, LLC's Motion for Summary Judgment." (Doc. 46). Each of these parties filed a response in opposition to the other's motion. (Docs. 47, 55). Defendants BEMC, LLC and Rand Abedrabbo joined in Loan Ranger's response in opposition to Depositors’ motion. (Docs. 56, 57). Depositors previously filed a virtually identical motion for summary judgment (Doc. 31), which has been rendered moot by its renewed motion.
Upon review of the motions, responses, court file, and record, the Court finds as follows:
Background
This case presents a dispute between an insurer (Depositors) and insured (Loan Ranger) over liability insurance coverage for claims arising from personal injuries. The material facts are undisputed.
The injured party, Rand Abedrabbo, filed a complaint in state court against Loan Ranger and BEMC. Abedrabbo alleged that on November 4, 2016, he visited a restaurant known as the Locale Market, owned by BEMC, and located in an outdoor shopping mall owned by Loan Ranger. (Doc. 51-4 at ¶¶ 7-9, 11). He and his family bought their food and sat down just outside the restaurant, near its exit, at a table placed there by Loan Ranger and BEMC for the use of restaurant customers. (Id. at ¶¶ 11-14). A third party, fleeing from security personnel employed by defendants, jumped from a second-story walkway and landed on Abedrabbo's table, causing the table to strike and severely injure Abedrabbo's leg. (Id. at ¶¶ 16-24). Abedrabbo alleged that BEMC and Loan Ranger failed to take all reasonable steps to protect customers from injury, and that, among other things, they negligently placed the tables under the walkway and failed to warn customers of the danger. (Id. at ¶¶ 14-15, 34-35).
BEMC moved for summary judgment, but Abedrabbo dismissed BEMC with prejudice before the state court ruled on the motion, leaving Loan Ranger as the sole defendant in that lawsuit, which remains pending. (Doc. 51-5).
As required by the lease between Loan Ranger as landlord and BEMC as tenant (the "Lease"), BEMC had in place a policy of liability insurance (the "Policy") issued by Depositors that named Loan Ranger as an additional insured. (Docs. 43-1; 43-2; 43-3; 43-4; 51-1).1 Loan Ranger demanded that Depositors defend it against Abedrabbo's claims. (Docs. 46 at 6, ¶ 9; 47 at 2). Depositors denied the claim and filed this federal court action against Loan Ranger, BEMC, and Abedrabbo, seeking a declaration that the Policy does not cover Loan Ranger for Abedrabbo's claims. (Doc. 1 at ¶¶ 29, 31).
Depositors has moved for summary judgment, arguing that it has no duty to defend or indemnify Loan Ranger. (Doc. 51). Loan Ranger, joined by BEMC and Abedrabbo, opposes Depositors’ motion, and has moved for summary judgment in its own favor, asking for a declaration that Depositors is obligated to defend it against the Abedrabbo claims. (Docs. 46; 55; 56; 57).
Summary judgment is appropriate "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). A properly supported motion for summary judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only the existence of a genuine issue of material fact will preclude summary judgment. Id.
The moving party bears the initial burden of showing that there are no genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). When the moving party has discharged its burden, the nonmoving party must then designate specific facts showing the existence of genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc. , 64 F.3d 590, 593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations and evidence, the nonmoving party's evidence is presumed to be true and all reasonable inferences must be drawn in the nonmoving party's favor. Shotz v. City of Plantation, Florida , 344 F.3d 1161, 1164 (11th Cir. 2003).
The standard for cross-motions for summary judgment is not different from the standard applied when only one party moves for summary judgment. Am. Bankers Ins. Grp. v. United States , 408 F.3d 1328, 1331 (11th Cir. 2005). The Court must consider each motion separately, resolving all reasonable inferences against the party whose motion is under consideration. Id. "Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed ...." United States v. Oakley , 744 F.2d 1553, 1555 (11th Cir. 1984) (quoting Bricklayers Int'l Union, Local 15 v. Stuart Plastering Co. , 512 F.2d 1017 (5th Cir. 1975) ).
Summary judgment in a declaratory judgment action is appropriate where, as here, the material facts are undisputed and the insurer's duty rests solely on the applicability of the insurance policy, the interpretation of which is a question of law for the Court.
Northland Cas. Co. v. HBE Corp. , 160 F. Supp. 2d 1348, 1358 (M.D. Fla. 2001).
A liability insurer owes its insured two distinct duties: a duty to defend the insured against the claim, and a duty to indemnify the insured against liability. See, e.g., Lime Tree Vill. Cmty. Club Ass'n v. State Farm Gen. Ins. Co. , 980 F.2d 1402, 1405 (11th Cir. 1993). The insurer's duty to defend is "distinct from and broader than the duty to indemnify," and is determined by examining the allegations in the complaint filed against the insured. Id. ; Higgins v. State Farm Fire & Cas. Co. , 894 So. 2d 5, 9-10 (Fla. 2004). The insurer must defend when the complaint alleges facts which fairly and potentially bring the suit within policy coverage. Lime Tree Vill. , 980 F.2d at 1405. Moreover, if the allegations of the complaint leave any doubt as to the duty to defend, the question must be resolved in favor of the insured. Id.
For the reasons set forth below, Loan Ranger is entitled to summary judgment declaring that the Policy provides coverage to Loan Ranger for the claims Abedrabbo asserts in his state court complaint. Depositors therefore has a duty to defend Loan Ranger against those claims. The issue of Depositors’ duty to indemnify Loan Ranger against liability, however, is not ripe because the state court proceedings on Abedrabbo's claim have not concluded, and Loan Ranger's liability on that claim, if any, has not been determined.
Abedrabbo's Claims Arise Out of the Ownership, Maintenance, or Use of the Space Leased to BEMC.
The additional insured provision in BEMC's Policy with Depositors affords Loan Ranger coverage for "liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule ...." (Doc. 51-1 at 72). The phrase "arising out of" is not limited to matters proximately caused by the listed event or peril, but is given a broader meaning, which includes "originating from," "having its origin in," "growing out of," "flowing from," "incident to" or "having a connection with." See, e.g. , Hilton Hotels Corp. v. Employers Ins. of Wausau , 629 So. 2d 1064, 1065 (Fla. 3d DCA 1994) ; see also Taurus Holdings, Inc. v. U.S. Fid. Guar. Co. , 913 So. 2d 528, 539 (Fla. 2005) (). Abedrabbo's claims fall within this broad coverage provision.
Depositors’ reliance on Hilton Hotels , 629 So. 2d at 1064-65, is misplaced. In Hilton Hotels , Florida's Third District held a similarly worded additional insured provision did not cover a personal injury claim against a landlord. (Doc. 47 at 4). In that case, an employee of a gift shop that leased space in a hotel, while heading to work, was injured in the hotel lobby at an undetermined distance from the gift shop. The injury had nothing to do with the gift shop other than the fortuity that the party injured in the hotel lobby happened to be a gift shop employee.
Here, in contrast, as Loan Ranger aptly puts it, under the allegations of the Abedrabbo's state court complaint, "Mr. Abedrabbo was injured while patronizing Locale Market [i.e., BEMC], sitting in Locale Market's table and chairs, when he was struck by Locale Market's table." (Doc. 46 at 12-13). The Abedrabbo complaint further alleges that BEMC was negligent in the placement of the tables, in failing to provide its customers the option of moving the tables, and in failing to warn its customers about the danger from the second-floor walkway. (Doc. 51-4 at ¶¶ 9-15, 34-35). The allegations of the Abedrabbo complaint fall within the coverage provision of the additional insured endorsement.
The Lease's Indemnification Provision Does Not Limit the Scope of Additional Insured Coverage Under the Policy.
The Policy's additional insured endorsement provides that if the additional...
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