Doe v. Ins. Co. Of The State Of Pennsylvania
| Decision Date | 22 October 2018 |
| Docket Number | Case No. 17-21203-CIV-GAYLES |
| Citation | 363 F.Supp.3d 1358 |
| Parties | Jane DOE, Plaintiff, v. The INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Leslie Elijah Stiers, Stiers Law, Danya Pincavage, Wolfe Pincavage, LLP, Miami, FL, for Plaintiff.
Irene Marie Porter, Hicks & Kneale, Miami, FL, for Defendant.
THIS CAUSE comes before the Court upon Defendant The Insurance Company of the State of Pennsylvania's ("Defendant") Motion for Final Summary Judgment (the "Motion"). [ECF No. 45]. The Court has considered the Motion, the record, argument of counsel at the hearing on the Motion, and is otherwise fully advised. For the reasons set forth below, the Motion is GRANTED.
On July 26, 2013, Plaintiff Jane Doe ("Plaintiff") filed an action (the "Underlying Action") against Cayman Style Ocean Adventures, Inc. ("CSOA") and its employee Shawn Mourao ("Mourao"). On March 3, 2014, Plaintiff filed her Second Amended Complaint in the Underlying Action bringing claims for negligence, sexual assault, battery, intentional infliction of emotional distress, and negligent infliction of emotional distress (the "Underlying Complaint"). [ECF No. 29]. Aside from the direct negligence claim against CSOA, Plaintiff's claims were brought against Mourao individually and against CSOA based on vicarious liability.
As set forth in the Underlying Complaint, on July 22, 2012, Plaintiff embarked on a seven-day Caribbean cruise on the Carnival Legend. For the cruise's stop in Grand Cayman, Plaintiff purchased a three-hour beach and party boat snorkeling excursion operated by CSOA. On July 27, 2012, Plaintiff went ashore to participate in the excursion. Upon arriving at the CSOA excursion vessel, Plaintiff was introduced to Mourao who identified himself as the captain. When the CSOA excursion vessel returned to the harbor, Plaintiff disembarked and remarked that she needed to use the bathroom before returning to the Carnival Legend. Mourao offered to direct Plaintiff to the nearest bathroom. Rather than assist Plaintiff, Mourao led her to a nearby shopping center where he detained her against her will in a small room and sexually assaulted her.
CSOA and Mourao failed to appear in or defend the Underlying Action. After clerk's defaults were entered against both, Plaintiff filed a Motion for Entry of Final Default Judgment [ECF No. 42-4]. The court entered a Final Default Judgment as to Liability [ECF No. 42-6], but reserved judgment as to damages pending an evidentiary hearing. After the evidentiary hearing, the court entered a Final Default Judgment in the amount of $ 1,988,460.54 against CSOA and Mourao jointly and severally. [ECF No. 42-7].
At the time of the allegations in the Underlying Complaint, CSOA and Mourao were insured by Defendant under a Foreign Commercial General Liability Policy [ECF No. 1-1]. A second policy, the Foreign Commercial Package Policy, which is materially identical, was also issued to "Cayman Style Ocean Adventures, Ltd." [ECF No. 1-2] (collectively the "Policies"). The relevant provisions of the Policies provide:
SECTION I – COVERAGES
[See ECF No. 43-3, 43-3]. Based on its interpretation of the Policies, Defendant denied coverage in the Underlying Action.
Plaintiff brought this lawsuit for breach of contract and declaratory relief seeking to recover the full amount of the Final Default judgment in the Underlying Lawsuit. In her First Amended Complaint [ECF No. 29] and in the pleadings presently before this Court, Plaintiff argues that Defendant must indemnify its insureds because the Final Default Judgment falls within the terms of the Policies and no exclusions apply. Defendant has moved for summary judgment arguing that there is no coverage for the Final Default Judgment under the Policies because Plaintiff's losses are excluded by the Abuse and Molestation Exclusion endorsement and under the plain language of the insuring agreements. Defendant has also filed a counterclaim, seeking a declaratory judgment that neither policy applies.
Pursuant to Federal Rule of Civil Procedure 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). "[T]he plain language of Rule 56 [a] 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, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir. 1991). Rule 56(e)"requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ " Celotex , 477 U.S. at 324, 106 S.Ct. 2548. Thus, the nonmoving party "may not rest upon the mere allegations or denials of [her] pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
Under Florida law, "interpretation of an insurance policy is a question 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). "[I]nsurance contracts are construed according to their plain meaning, with any ambiguities construed against the insurer and in favor of coverage." U.S. Fire Ins. Co. v. J.S.U.B., Inc. , 979 So.2d 871, 877 (Fla. 2007).1 "[I]f a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision." Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co. , 913 So.2d 528, 532 (Fla. 2005) (citation and internal quotation marks omitted). "If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and another limiting coverage, the insurance policy is considered ambiguous." Garcia v. Fed. Ins. Co. , 969 So.2d 288, 291 (Fla. 2007) (quoting Auto–Owners Ins. Co. v. Anderson , 756 So.2d 29, 34 (Fla. 2000) ). "Ambiguities in insurance contracts are interpreted against the insurer and in favor of the insured." Id. (citing Swire Pac. Holdings, Inc. v. Zurich Ins. Co. , 845 So.2d 161, 165 (Fla. 2003) ). "A provision is not ambiguous simply because it is complex or requires analysis." Id. (citing Swire Pac. Holdings , 845 So.2d at 165 ).
If there is a dispute over coverage and exclusions, the Court employs a burden-shifting framework. See E.S.Y., Inc. v. Scottsdale Ins. Co. , 139 F.Supp.3d 1341, 1351 (S.D. Fla. 2015). "A person seeking to recover...
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