National Fire & Marine Ins. v. Adoreable Promotion

• Decision Date: 18 August 2006
• Docket Number: No. 8:04-cv-1286-T-TBM.,8:04-cv-1286-T-TBM.
• Citation: 451 F.Supp.2d 1301
• Parties: NATIONAL FIRE & MARINE INSURANCE COMPANY, Plaintiff, v. ADOREABLE PROMOTIONS, INC.; Arthur P. Dore; American Boring & Athletic Association, Inc.; Raymond Blackburn; The Sarasota County Agricultural Fair Association, Inc.; Robert Charles Young, as Personal Representative for the Estate of Stacy Young; Tony L. Roten; Kelly Roten, Defendants.
• Court: U.S. District Court — Middle District of Florida

451 F.Supp.2d 1301

NATIONAL FIRE & MARINE INSURANCE COMPANY, Plaintiff, v. ADOREABLE PROMOTIONS, INC.; Arthur P. Dore; American Boring & Athletic Association, Inc.; Raymond Blackburn; The Sarasota County Agricultural Fair Association, Inc.; Robert Charles Young, as Personal Representative for the Estate of Stacy Young; Tony L. Roten; Kelly Roten, Defendants.

No. 8:04-cv-1286-T-TBM.

United States District Court, M.D. Florida, Tampa Division.

August 18, 2006.

COPYRIGHT MATERIAL OMITTED

Michael J. Vitoria, Grayrobinson, P.A., Tampa, FL, S. Grier Wells, Kenneth Blair Jacobs, Grayrobinson, P.A., Jacksonville, FL, for Plaintiff.

Charles Travis Moore, Knopikvarnermoore, Tampa, FL, Robert Michael Daisley, Law Office Of Robert Michael Daisley, P.A., Tampa, FL, Russell K. Peavyhouse, Trinkle, Redman, Swanson & Coton, PA, Plant City, FL, Daniel G. Sanders, Marshall, Dennehey, Warner, Coleman & Goggin, Orlando, FL, for Defendants.

ORDER

McCOUN, United States Magistrate Judge.

THIS MATTER is before the court on Adoreable Promotions, Inc., American Boxing & Athletic Assoc., and Arthur P. Dore's Motion for Summary Judgment (Doc. 42),¹ as supplemented (Doc. 59), and Plaintiff National Fire & Marine Insurance Co.'s (hereinafter "Plaintiff" or "National Fire") response in opposition (Doc. 48) and the Cross-Motion of National Fire & Marine Insurance Company for Summary Judgment (Doc. 49) and the response of Defendants Adoreable Pomotions, Inc., American Boxing & Athletic Association, and Arthur. P. Dore (hereinafter, collectively, the "Adorable Defendants") (Doc. 50). The Sarasota County Agricultural Fair Association, Inc. (hereinafter "SCAFA"), adopts and joins in the response of the Adoreable Defendants. See (Doc. 51). In support of their relative positions, the parties filed affidavits, depositions, and other exhibits. See (Does. 42-1 to 42-4, 46, 47, 53). Defendants Raymond Blackburn; Robert Charles Young, as personal representative for the Estate of Stacy Young; and Tony L. Roten and Kelly Roten (hereinafter, collectively, the "Young/Roten Defendants") filed no dispositive motion(s) of their own or any response(s) to Plaintiff's motion for summary judgment. Oral arguments on the motions were heard on July 13, 2006.

I.

The undisputed facts establish that Defendant Adoreable Promotions, Inc. (hereinafter "Adoreable") is a Michigan corporation that promotes and operates, among other events, amateur boxing contests around the country known as the Toughman Contest. Defendant ABAA is a Michigan not-for-profit corporation that promotes amateur boxing and owns a gym for amateur boxers in Bay City, Michigan. To raise proceeds, it sanctions certain Toughman Contests, including the one at issue in this case. For those events, it hires Adoreable to promote and operate the event. Defendant Arthur P. Dore, a resident of Michigan, originally coined the phrase and promoted Toughman Contests through two corporate entities. The assets of the last such corporation were sold to Adoreable in or about 1996. During the event at issue, Mr. Dore claims to have been the "volunteer" ringmaster. National Fire issued a policy of commercial general liability insurance, Policy No. 72FL155659 (hereinafter "the policy") to Adoreable covering the period of June 1, 2003, to June 1, 2004. The policy named SCAFA an additional insured under the policy.

On June 13 and 14, 2003, a Toughman Contest was held in Sarasota, Florida, at the Robarts Arena, which is maintained by Defendant SCAFA. Defendant Raymond Black, a resident of the state of Florida, served as the referee of this Toughman Contest. At this Toughman Contest, in separate contests, Stacy Young and Tony Roten were injured while participating in fights. Stacy Young died as a consequence of her injuries. Tony Roten claims severe and permanent injuries.

Defendants Tony Roten and his wife, Kelly Roten, sued the Adoreable Defendants, Mr. Blackburn, and the SCAFA in state court (hereinafter the "Roten litigation"). By this litigation, the Rotens seek damages for losses sustained as a result of the alleged negligence by the Adoreable Defendants and Mr. Blackburn, and the premises liability of SCAFA. Ms. Roten seeks damages for loss of consortium as well. The Rotens allege, inter alia, that the Adoreable Defendants fraudulently induced Tony Roten to participate in the Toughman Contest by leading him to believe that adequate safety measures would be in place and failed to provide adequate supervision of the participants and a qualified ringside doctor.

Defendant Robert Charles Young, as Personal Representative for the Estate of Stacy Young, filed a wrongful death action against the Adoreable Defendants, Mr. Blackburn, and the SCAFA in state court (hereinafter "Young litigation"), seeking damages for losses sustained as a result of the alleged negligence of the Adoreable Defendants and Mr. Blackburn, and the premises liability of SCAFA. Mr. Young alleges, inter alia, that the Adoreable Defendants fraudulently induced Stacy Young to participate in the Toughman Contest by leading her to believe that adequate safety measures would be in place and failed to provide adequate supervision of the participants and a qualified ringside doctor.

The Adoreable Defendants have made a demand upon National Fire for liability insurance coverage and indemnity for any damages assessed against them in the Roten litigation and/or Young litigation. National Fire is defending Adoreable and ABAA in these state court actions under a reservation of rights. National Fire has denied Mr. Dore's and the SCAFA's claims for coverage under the policy. Mr. Dore is represented in the state court action by his homeowner's insurance carrier, Frankenmuth Mutual.

National Fire filed the instant action seeking declaratory relief and a finding that the policy in question does not afford liability coverage for the Adoreable Defendants, Mr. Blackburn, and the SCAFA for any of the incidents that are the subject of the Roten and Young litigations because the incidents do not trigger liability coverage or are otherwise excepted from liability coverage; and that National Fire is not liable to pay any judgment entered in favor of the Young/Roten Defendants in their underlying state court actions. The Adoreable Defendants and the Plaintiff filed the instant cross-motions for summary judgment (Docs.42, 49) and their responses in opposition (Docs.48, 50, respectively).

II.

The court shall grant summary judgment for the moving party only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court may look to "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits," in determining whether summary judgment is appropriate. Fed.R.Civ.P. 56(c). The movant bears the exacting burden of demonstrating that there is no dispute as to any material fact in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir.1993).

Once the moving party satisfies its burden, the burden shifts to the non-moving party to establish the existence of a genuine issue of material fact. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Howard v. BP Oil Co., 32 F.3d 520, 524 (11th Cir.1994). The non-movant must designate specific facts showing a genuine issue for trial beyond mere allegations or the party's perception. Perkins v. School Bd. of Pinellas County, 902 F.Supp. 1503 (M.D.Fla. 1995). It must set forth, by affidavit or other appropriate means, specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).

When deciding a motion for summary judgment, "Mt is not part of the Court's function . . . to decide issues of material fact, but rather determine whether such issues exist to be tried . " and "[t]he court must avoid weighing conflicting evidence or making credibility determinations." Hairston, 9 F.3d at 919 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The only determination for the court in a summary judgment proceeding is whether there exists genuine and material issues of fact to be tried. Hairston, 9 F.3d at 921; see also Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cfr.1997). All the evidence and inferences from the underlying facts must be viewed in the light most favorable to the nonmoving party. Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir.1997).

III.

A.

As a threshold matter, the court must determine which state's laws governs this action. Neither party briefed the issue thoroughly. National Fire has taken no position, either in its pleadings or in oral argument, as to the applicable law. The Adoreable Defendants only argue in passing that Michigan law should apply, but they also note that there is no substantive difference between the laws of Florida and Michigan with respect to the issues raised by their motion. At any rate, the parties cite to the laws of both states and of other jurisdictions. While choice of law questions can be avoided if the laws of the different jurisdictions lead to identical results, the court nonetheless decides which law to apply for purposes of analytical discussion of the substantive issues. See Shapiro v. Assoc. Ina Ins. Co., 899 F.2d 1116, 1118 n. 2 (11th Cir.1990).

Because this court's jurisdiction is based in diversity of citizenship, the court is bound to apply the substantive law of the forum state. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); McMahan v. Toto, 256 F.3d 1120, 1131 (11th Cir.2001). This principle applies to the state's choice of law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Shaps v. Provident Life & Accident Ins. Co., 244 F.3d 876, 881 (11th Cir.2001)....