Evanston Ins. Co. v. Haven S. Beach, LLC
Decision Date | 28 December 2015 |
Docket Number | Case No. 15-20573-CIV-GAYLES/TURNOFF |
Citation | 152 F.Supp.3d 1370 |
Parties | Evanston Insurance Company, Petitioner, v. Haven South Beach, LLC, et al., Respondents. |
Court | U.S. District Court — Southern District of Florida |
John R. Catizone, Litchfield Cavo LLP, Fort Lauderdale, FL, Dustin Craig Blumenthal, Litchfield Cavo LLP, Fort Lauderdale, FL, for Petitioner.
Marc Lawrence Brumer, Brumer & Brumer, Hans Anthony Laurenceau, Miami, FL, for Julie Beth Schwartz, Law Offices of Patricia E. Garagozlo, Donna Marie Wilson-Sampson, Law Offices Sanabria Llorente & Associates, Plantation, FL, for Respondents.
THIS CAUSE comes before the Court upon Petitioner Evanston Insurance Company's Motion for Final Summary Judgment and Incorporated Memorandum of Law (the “Motion”) [ECF No. 44]. The Court has considered the parties' written submissions, the record, and the applicable law. For the reasons set forth below, the Motion is GRANTED .
On January 30, 2014, Barbara Kaufman (“Mrs. Kaufman”) and her husband, Donald Kaufman, (“Mr. Kaufman”) (collectively the “Kaufmans”) attended the Ninth Annual Taste of the Garden (the “Event”) at the Miami Beach Botanical Garden. Haven South Beach, LLC (“Haven”) was a food and beverage vendor at the Event. Haven served Mrs. Kaufman an alcoholic beverage containing liquid nitrogen.1 Haven used the liquid nitrogen to create a smoky effect. Upon drinking the liquid nitrogen infused beverage, Mrs. Kaufman suffered injuries. The Kaufmans filed an action against Kryogenifex, Inc.; Miami Beach Garden Conservancy, Inc.; and Haven (collectively the “Respondents”), asserting claims for strict liability and negligence and a derivative claim by Mr. Kaufman (the “Underlying Complaint”).
At the time of the Mrs. Kaufman's injuries, Haven had an insurance policy (the “Policy”) with Evanston Insurance Company (“Evanston”). The Policy contains both a Commercial General Liability Part (the “CGL Part”) and a Liquor Liability Coverage Part (the “LLC Part”). The relevant provisions provide:
TOTAL POLLUTION EXCLUSION ENDORSEMENT
This insurance does not apply to:
[ECF No. 44-2 at pg. 45].
[ECF No. 44-2 at pg. 20].
This insurance applies only to “bodily injury”, “property damage”, “personal and advertising injury” and medical expenses arising out of:
[ECF No. 44-2 at pg. 34].
2. Exclusions
This insurance does not apply to:
[ECF No. 44-2 at pg. 23].
[ECF No. 44-2 at pg. 27].
On February 12, 2015, Evanston filed this action against the Respondents, seeking a declaration that it had no duty to defend or indemnify Haven in the Underlying Action. Evanston now moves for summary judgment, arguing that the (1) Pollution Exclusion; (2) Designated Premises Endorsement; and (3) “Your Product” Exclusion each bar coverage for the Kaufmans' claims. The Kaufmans filed a response to the Motion. Evanston and the Kaufmans, at the Court's direction, also submitted supplemental briefs regarding the Pollution Exclusion.
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 his 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).
The parties agree that Florida law applies to the Policy and this dispute.
Under Florida law, “[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). 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. , No. 15–21349–CIV, 139 F.Supp.3d 1341, 2015 WL 6164666 (S.D.Fla. October 14, 2015). “A person seeking to recover on an insurance policy has the burden of proving a loss from causes within the terms of the policy[,] and if such proof of loss is made within the contract of insurance, the burden is on the insurer to establish that the loss arose from a cause that is excepted from the policy....” Id. (quoting U.S. Liab. Ins. Co. v. Bove , 347 So.2d 678, 680 (Fla.3d DCA 1977) ). If the insurer is able to establish that an exclusion applies, the burden shifts to the insured to prove an exception to the exclusion. Id.
To determine whether Evanston had a duty to defend Haven, the Court looks only to the allegations in the Underlying Complaint and the terms of the Policy. See Jones v. Florida Ins. Guar. Ass'n, Inc. , 908 So.2d 435, 442–43 (Fla.2005). If the allegations in the Underlying Complaint do not establish coverage, there is no duty to defend. James River Ins. Co. v. Bodywell Nutrition, LLC , 842 F.Supp.2d 1351, 1354 (S.D.Fla.2012) (citing Posigian v. American Reliance Ins. Co. of New Jersey , 549 So.2d 751, 753 (Fla.3d DCA 1989) ). Unsupported and conclusory “buzz words” are insufficient to trigger coverage. State Farm Fire and Cas. Co. v. Steinberg , 393 F.3d 1226, 1230 (11th Cir.2004). In addition, inferences are insufficient to trigger coverage. Fun Spree Vacations, Inc. v. Orion Ins. Co., 659 So.2d 419, 421–22 (Fla.3d DCA 1995) () (citations omitted). Where there is no duty to defend, there is no duty to indemnify. See E.S.Y. , 2015 WL 6164666 at *6 (citing Farrer v. U.S. Fid. & Guar. Co. , 809 So.2d 85, 88 (Fla.4th DCA 2002) ).
Evanston argues that the Policy's Pollution Exclusion bars coverage for the Kaufmans' claims because Haven discharged, dispensed and/or released liquid nitrogen, a “pollutant,” into Mrs. Kaufman's beverage. The Kaufmans argue that the Pollution Exclusion is ambiguous. The Kaufmans argue, in the alternative, that even if the exclusion is unambiguous, it does not bar their claims because liquid nitrogen is not a “pollutant” and Haven's intentional placement of the liquid nitrogen in Mrs. Kaufman's beverage does not constitute discharging, dispensing, and/or releasing a pollutant.
If the language of a policy is not ambiguous, the Court applies the plain language of the policy to the allegations in the Underlying Complaint. See Chestnut Assoc., Inc. v. Assurance Co. of America , 17 F.Supp.3d 1203, 1209 (M.D.Fla.2014). Although courts generally resolve ambiguities in favor of the insured, Excelsio r Ins...
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