Nationwide Mut. Ins. Co. v. Nelson

Decision Date27 September 2018
Docket NumberCase No: 8:17-cv-443-MSS-CPT
Citation369 F.Supp.3d 1249
Parties NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff, v. Mark NELSON, as parent and natural guardian of D.N., a minor and Josh Cooper, Defendants.
CourtU.S. District Court — Middle District of Florida

Patricia A. McLean, Mallory Havens Thomas, Phelps Dunbar, LLP, Tampa, FL, for Plaintiff.

Morgan L. Gaynor, Mark Roman Law Group, Clearwater, FL, for Defendants.

Josh Cooper, Tampa, FL, pro se.



THIS CAUSE comes before the Court for consideration of Plaintiff's Motion for Final Summary Judgment, (Dkt. 38), Defendant Mark Nelson's response in opposition thereto, (Dkt. 40), and Plaintiff's reply in support of its motion. (Dkt. 42)

On January 8, 2016, Nationwide Mutual Insurance Company ("Nationwide") issued a Certificate of Liability Insurance to "Josh Cooper DBA: Cooper Speed - Strength School," which provides liability insurance coverage to "Josh Cooper DBA: Cooper Speed - Strength School" from January 1, 2016 to January 1, 2020. The insurance policy purports to guarantee payment of damages that the insured becomes legally obligated to pay because of bodily injury and property damage to which the insurance applies. It also provides that Nationwide would have a duty to defend against suits seeking damages covered under the policy. The policy provides that the insurance applies only to "individual and group instruction of fitness, dance or exercise directly conducted by you, as reported to the company." (Dkt. 41-1 at 8) It also excludes "instruction of sports skills activities." (Dkt. 41-1 at 6) It does not define either activity.

During the coverage period, Mark Nelson ("Nelson"), on behalf of his minor son, filed a state court action seeking damages from Josh Cooper ("Cooper") and the Cooper Speed-Strength School, Inc. ("the School") for an incident involving his son at the School. The underlying complaint describes an unfortunate chain of events in which the minor-plaintiff was injured while engaging in an agility drill devised and prepared by Josh Cooper, a skills trainer, and the Cooper Speed-Strength School, Inc. The complaint explains that the minor was running alongside the skills trainer toward a set goal, when the skills trainer ran into a plate glass window. The window shattered on impact, and a jagged piece of glass caused severe cuts to the minor's hand and arm. On behalf of the minor, Nelson alleges a negligence claim against Cooper and the School, among others.

Nationwide filed the instant Motion for Summary Judgment asserting that, as a matter of law, the allegations in the underlying complaint do not implicate the subject insurance policy and, thus, do not give rise to a duty to defend Cooper or the School. It contends that the insurance policy covers only Josh Cooper, individually, and only for damages arising from fitness, dance, and exercise instruction conducted directly by Cooper. Nationwide claims the conduct that allegedly caused injury involved agility drills, which Nationwide characterizes as a sports skills activity, which is expressly excluded under the Policy, and claims further that the activity was not conducted directly by Cooper. It also disclaims a duty to defend Cooper's business entity, Cooper Speed-Strength School, Inc. because it asserts that the Policy does not cover the School at all.

Nelson claims that the policy covers both Cooper and the School due to an endorsement that adds the School as an additional insured. Nelson also asserts that the language in the underlying complaint does not allege that Cooper or the School was involved in "sports skills training," but rather alleges general fitness training, which is expressly covered under the policy.

To prevail on this motion, Nationwide must show that there is no reading of the underlying complaint that invokes any basis for coverage under its insurance policy. The applicable standard of proof, referred to as the "eight corners doctrine,"1 requires Nationwide to demonstrate that a comparison of the four corners of the complaint with the four corners of the policy reveals no scenario in which coverage would be provided under the policy, thereby vitiating the insurer's duty to defend. This it cannot do. Regardless of whether they are true, the broad allegations in the Underlying Complaint facially implicate the insurance provisions providing coverage for both Josh Cooper and the Cooper Speed-Strength School, Inc. and triggering Nationwide's duty to defend. Thus, for the reasons stated herein, the Court DENIES Nationwide's Motion for Summary Judgment.

1. Insurance Policy

Nationwide issued under its "Fitness Instructors" program Policy No. 6B RPG 5861300 ("Insurance Policy") to "Sports, Leisure & Entertainment RPG DBA: Fitness Instructor" for the policy period from January 1, 2016 to January 1, 2020. (Dkt. 41 at ¶ 1; Dkt 41-1 at 1) The named insured on the Insurance Policy was designated "Sports, Leisure & Entertainment Risk Purchasing Group and its enrolled member fitness or dance instructors whose names are on file with the company and for which an appropriate premium has been paid and to whom a certificate of insurance has been issued." (Dkt. 41 at ¶ 5; Dkt 41-1 at 3) Thus, in order to be insured under the Insurance Policy, a member of the risk purchasing group would need to be issued a certificate of insurance.

On January 8, 2016, Josh Cooper ("Cooper"), through his retail agent Vincent Ruilova, submitted a final summary of the renewal application ("Application"), which appears to be a summary of an online application for coverage under the Insurance Policy. (Dkt. 41 at ¶ 5; Dkt. 26-2) Under the section titled "Terms & Conditions," the Application states, "This program only provides coverage for your individual operations as an instructor," and the Policy "does not extend coverage for activities conducted by employees or anyone else assisting or performing on your behalf." (Dkt. 41 at ¶ 6; Dkt. 26-2 at 2) Notably, the Insurance Policy issued does not contain a similar provision, and indeed, contains provisions suggesting otherwise. (See e.g., Dkt. 41-1 at 56 (noting that sponsors, co-promoters, and owners, managers, and lessors of premises are insured for "liability for ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf"); Dkt. 41-1 at 35 (providing coverage for "you and your fitness/dance business entity") ).

On the same date, on behalf of Nationwide, a Certificate of Liability Insurance was issued providing coverage under the Policy for "Josh Cooper DBA: Cooper Speed - Strength School." (Dkt. 41 at ¶ 8; Dkt. 26-3) The Policy's Commercial General Liability Coverage affords both Bodily Injury and Property Damage Liability Coverage and Legal Liability to Participants Coverage, subject to certain terms, conditions, limitations and exclusions. (Dkt. 41 at ¶ 9; Dkt. 41-1) The Insurance Policy contains a number of endorsements and amendments, which purport to either add, limit, or exclude the coverage under the policy.

The relevant coverage provisions under the Insurance Policy are as follows:

1. The Commercial General Liability Coverage Form provides, in part, that "[Nationwide] 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." (Dkt. 41-1 at 19)
2. The Insurance Policy defines "bodily injury" as "bodily injury, sickness, or disease sustained by a person. This includes mental anguish, mental injury, shock, fright, humiliation, emotional distress or death resulting from bodily injury, sickness or disease." (Dkt. 41-1 at 31)
3. An endorsement entitled "LEGAL LIABILITY TO PARTICIPANTS" ("Legal Liability to Participants Endorsement") that modifies the Commercial General Liability Coverage Form provides, in pertinent part, that:
[Nationwide] will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" to any "participants." [Nationwide] will have the right and duty to defend the insured against any ‘suit’ seeking those damages. However, [Nationwide] will have no duty to defend the insured against any ‘suit’ seeking damages for ‘bodily injury’ to which this insurance does not apply. We may, at our discretion, investigate any ‘occurrence’ and settle any claim or suit that may result.
(Dkt. 41-1 at 47) The endorsement defines "participants" as "[a]ny person who is participating in athletic or recreational activities, and/or training programs conducted by you." (Dkt. 41-1 at 48)

The pertinent exclusions and limitations under the Insurance Policy are as follows:

1. The "DESIGNATED OPERATIONS" exclusion ("Designated Operations Exclusion") provides: "This insurance does not apply to the operations in the Schedule of this endorsement, regardless of whether such operations are conducted by you on your behalf or whether the operations are conducted for yourself or for others." (Dkt. 41-1 at 6) The Schedule in the Designated Operations Exclusion lists, interalia, "[i]nstruction of sports skills activities" and "[o]wnership, operation or management of a fitness, dance or sports facility" among the "designated operations" to which the insurance does not apply. (Dkt. 41-1 at 6)
2. The "LIMITATION OF COVERAGE TO DESIGNATED PREMISES, ACTIVITES OR OPERATIONS" ("Designated Activities Limitation") endorsement provides, in pertinent part: "All coverages are modified as follows: This insurance applies only to: ... [t]he activities or operations shown in the Schedule." (Dkt 41-1 at 8) The Schedule in the Designated Activities Limitation lists the following "Activities and Operations": "Individual or group instruction of fitness, dance or exercise directly

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