Mt. Hawley Ins. Co. v. Roebuck

• Decision Date: 11 April 2019
• Docket Number: CASE NO.: 17-CV-80213-MARRA
• Citation: 383 F.Supp.3d 1351
• Parties: MT. HAWLEY INSURANCE COMPANY, Plaintiff, v. Arthur R. ROEBUCK III & Patricia R. Swindle TRS d/b/a Jupiter West Plaza ; Riviera Trading and Marketing, Inc. d/b/a Jupiter West Plaza ; Scribe Enterprises, Inc. d/b/a Jupiter West Plaza ; and Leslie J. Frye, II, Defendants.
• Court: U.S. District Court — Southern District of Florida

383 F.Supp.3d 1351

MT. HAWLEY INSURANCE COMPANY, Plaintiff,

v.Arthur R. ROEBUCK III & Patricia R. Swindle TRS d/b/a Jupiter West Plaza ; Riviera Trading and Marketing, Inc. d/b/a Jupiter West Plaza ; Scribe Enterprises, Inc. d/b/a Jupiter West Plaza ; and Leslie J. Frye, II, Defendants.

CASE NO.: 17-CV-80213-MARRA

United States District Court, S.D. Florida.

Signed April 11, 2019

Filed April 12, 2019

Carol Marie Rooney, Fay E. Ryan, Butler Weihmuller Katz Craig LLP, Tampa, FL, Jack Thomas Frost, Kelley Kronenberg, Plantation, FL, for Plaintiff.

Christina Veronica Paradowski, Tripp Scott, P.A., Ft. Lauderdale, FL, Michael C. Foster, Wargo & French, LLP, Miami, FL, for Defendants.

ORDER AND OPINION

KENNETH A. MARRA, United States District Judge

THIS CAUSE is before the Court upon Plaintiff Mt. Hawley Insurance Company's ("Mt. Hawley") Dispositive Motion for Summary Judgment [DE 71], and Defendants' Motion for Partial Summary Judgment on the Complaint for Declaratory Relief [DE 70]. Mt. Hawley's single-count complaint seeks a declaratory judgment that it has no duty to defend or indemnify its policy holders (the owners of a shopping center that lease space to a bar/restaurant called Uncle Mick's) for liability claims brought by a patron of Uncle Mick's. Mt. Hawley moves for summary judgment in its favor finding there is no coverage under the Mt. Hawley policy for the claims asserted in the underlying liability complaint,¹ and Defendants move for partial summary judgment finding that Mt. Hawley has a continuing duty to defend the claims asserted against the policy holders in an underlying liability complaint.² The motions are fully briefed³ and ripe for review. The Court has carefully considered the entire Court file and is otherwise fully advised in the premises.

This insurance coverage dispute arises out of an altercation between Leslie J. Frye, II ("Frye") and Paul Cleary ("Cleary") which occurred on December 14, 2014, in the parking lot for Uncle Mick's Bar and Grill ("Uncle Mick's") located in Jupiter, Florida. The altercation ended with Frye being stabbed.

Frye filed a lawsuit against Mt. Hawley's insureds, Arthur R. Roebuck, III ("Roebuck"), Patricia R. Swindle ("Swindle"), Riviera Trading and Marketing, Inc. d/b/a Jupiter West Plaza ("Riviera Trading"), and Scribe Enterprises, Inc. d/b/a Jupiter West Plaza ("Scribe") (together, "Policy Holders") to recover for the injuries and damages he allegedly sustained as a result of the December 14, 2014 stabbing.

Upon receiving notice of the lawsuit, Mt. Hawley tendered the defense of its Policy Holders to Uncle Mick's primary commercial general liability insurer, Conifer Insurance Company ("Conifer"). Conifer did not accept Mt. Hawley's tender. The parties dispute whether Mt. Hawley's insurance policy provides coverage of Frye's lawsuit.

Mt. Hawley has filed a single-count complaint seeking a declaratory judgment that it has no duty to defend or indemnify⁴ the Policy Holders for the claims brought by Frye. Mt. Hawley does not argue that the alleged facts do not bring Frye's cause within the coverage of the insurance policy. Rather, Mt. Hawley argues it has no duty to defend claiming the Policy Holders have failed to satisfy a condition precedent to coverage. Specifically, "[b]y reason of Conifer's refusal to defend and indemnify the Mt. Hawley insureds on Frye's claims, on a primary basis, under a policy with limits equal to or greater than the liability limits of the Mt. Hawley policy, there has been a failure on the part of Defendants to comply with the condition precedent set forth in Paragraph 4 of the Conditions of Coverage endorsement."⁵

The Policy Holders respond that "nothing in the ‘eight corners’ of the Underlying Complaint and the Mt. Hawley Policy ... demonstrate that the allegations in the Underlying Complaint fall exclusively within the Tenants and Contractors Exclusion ..."⁶ The Policy Holders further assert that if the Court were to take the impermissible step and look at facts beyond the allegations in the Frye Complaint, those facts do not trigger the Tenants and Contractors Endorsement.⁷ The Policy Holders move for partial summary judgment finding that Mt. Hawley has a continuing duty to defend them in the Frye matter.

Undisputed Material Facts

The Mt. Hawley Policy

1. Mt. Hawley issued a commercial general liability insurance policy to Susi Holdings, Inc. as named insured for the period from May 25, 2014 to May 25, 2015; Policy No. MGL017764 (the "Mt. Hawley Policy").⁸

2. The Mt. Hawley Policy also names Riviera Trading, Scribe and their joint venture partners as insureds, and lists 6661-6791 W. Indiantown Rd., Jupiter, Florida as an insured location.⁹

3. With respect to the coverage for bodily injury liability, the Mt. Hawley policy states, in pertinent part, as follows:

SECTION I – COVERAGES

COVERAGE A – BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. Insuring Agreement

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply.¹⁰

4. The Mt. Hawley Policy defines the term "bodily injury" as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time."¹¹

5. The Mt. Hawley Policy defines the term "suit," in part, as "a civil proceeding in which damages because of ‘bodily injury,’ ‘property damage’ or ‘personal and advertising injury’ to which this insurance applies are alleged."¹²

6. The Mt. Hawley Policy contains an endorsement, Form No. CGL 102B (12/12), titled TENANTS AND CONTRACTORS - CONDITIONS OF COVERAGE ("Tenants and Contractors Endorsement"), which reads in pertinent part as follows:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TENANTS AND CONTRACTORS – CONDITIONS OF COVERAGE

We shall have no obligation to defend or indemnity any insured for any "bodily injury," "property damage," and/or "personal and advertising injury" arising directly or indirectly from a commercial tenant's occupation, use or maintenance of any premises leased to such tenant by any insured, such tenant's operations of any kind, or work by a "contractor" unless each and every of the following conditions is satisfied:

1. Certificates of insurance are obtained from the tenant prior to commencement of the lease. Such certificates of insurance must list primary commercial general liability coverage in effect for the entirety of the tenancy.

2. Written agreements are obtained from the tenant which hold harmless and indemnify the insured(s) against whom the claim is made for all injuries, claims, and suits arising directly or indirectly from the tenant's use or maintenance of any premises leased to the tenant by any insured, or from the tenant's operations of any kind. Such agreements must expressly provide indemnification to the fullest extent permitted by law. Such agreements must be contained in the lease agreement and be signed by the parties to the lease prior to or at the commencement of the lease.

3. The lease agreement must also require in writing that the tenant will obtain additional insurance coverage under its primary commercial general liability policy for each insured(s) against whom the claim is made. Such agreements must be contained in the lease agreement and be signed by the parties to the lease prior to or at the commencement of the lease. Such agreements must require limits of additional insured coverage equal to or greater than the limits of this policy. Such agreements must state that the additional insured coverage is to primary and noncontributory.

4. The tenant's primary commercial general liability insurer agrees to defend and indemnify every insured against whom the claim is made for "bodily injury," "property damage," and/or "personal and advertising injury," and does so on a primary basis under a policy with limits equal to or greater than the limits of this policy.¹³

The Underlying Complaint

7. On or about September 17, 2015, Frye filed a lawsuit styled Leslie J. Frye, II vs. Uncle Mick's Inc. d/b/a Uncle Mick's Bar & Grill; Jupiter West Plaza; Arthur R. Roebuck, III, and Patricia R. Swindle TRS, d/b/a Jupiter West Plaza; Riviera Trading and Marketing, Inc. d/b/a Jupiter West Plaza; and Scribe Enterprises, Inc. d/b/a Jupiter West Plaza ("Defendants"), in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Case No. 2015-CA-010556 (AF) (the "Underlying Complaint").¹⁴ It alleges five counts of negligence.

8. The Underlying Complaint seeks recovery for personal injuries allegedly suffered by Frye.¹⁵

9. The Underlying Complaint alleges that "On or about December 14, 2014, [Frye] was a business invitee lawfully on the premises when he was attacked, assaulted and battered resulting in significant personal injury."¹⁶

10. The Underlying Complaint alleges that the Policy Holders "owned, operated, maintained and controlled the premises known as Jupiter West Plaza. Said plaza is located at 6671 W. Indiantown Road, Jupiter, FL 33458. (Hereinafter the "Premises")."¹⁷

11. The Underlying Complaint alleges that the incident involving Frye occurred in the parking lot of the Jupiter West Plaza.¹⁸

12. Each of the Policy Holders is alleged to have owed Frye a duty of care because each owned, leased, operated, possessed, controlled, and/or maintained the premises including the parking lot.¹⁹

The Mt. Hawley Complaint

13. Mt. Hawley's Complaint in the case at bar sets forth a single count for declaratory relief (the "Mt. Hawley Complaint").²⁰

14. The Mt. Hawley Complaint asks this Court to determine that Mt. Hawley has "no duty to defend or indemnify" the Policy Holders.²¹

The Jupiter West Plaza

15. Scribe

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