Ohio Cas. Ins. Co. v. Garden of Eat'n of Tampa, Inc., Case No. 8:10-cv-2 602-T-33TBM

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Docket NumberCase No. 8:10-cv-2 602-T-33TBM
Decision Date02 September 2011

and SHERRI GAFFORD, Defendants.

Case No. 8:10-cv-2 602-T-33TBM


DONE and ORDERED: September 2, 2011


This matter comes before the Court pursuant to The Ohio Casualty Insurance Company's Motion for Partial Summary Judgment on Sherri Gafford's Affirmative Defense of Estoppel and Motion to Strike Affirmative Defense or for More Definite Statement (Doc. # 21), filed on February 9, 2011, and Sherri Gafford's Response in Opposition (Doc. # 29), which was filed on March 15, 2011. Also before the Court is Ohio Casualty's Motion for Summary Judgment (Doc. # 22), filed on February 9, 2011, and Gafford's combined Response and Cross Motion for Summary Judgment (Doc. # 28), which was filed on March 10, 2011. Ohio Casualty filed a Response in Opposition to Gafford's Motion for Summary Judgment on March 24, 2011, and Gafford filed a Reply (Doc. # 36) on April 21, 2011.

For the reasons that follow, the Court grants summary judgment in favor of Ohio Casualty and denies Gafford's motion

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for summary judgment.

I. Background

A. The Policy and Gafford's Injury

Ohio Casualty issued a Commercial General Liability Policy to the Garden of Eat'n of Tampa, Inc. on May 26, 2007, with liability limits of $1,000,000.00 per occurrence. The Policy provides third-party liability coverage to the Garden but also contains several exclusions, which follow:

2. Exclusions
This insurance does not apply to:
d. Workers' Compensation And Similar Laws
Any obligation of the insured under workers' compensation, disability
benefits or unemployment compensation law or any similar law.
e. Employer's Liability
"Bodily injury" to:
(1) An "employee" of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured's business; ...
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity;

(Doc. # 15 at 5).1

On April 24, 2008, while the Policy was still in effect,

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Gafford, an employee of the Garden, was injured on the premises of the Garden. On that date, Gafford came in to work at or around 1:00 p.m. and performed her usual duties, including cashier work, stocking the store with fresh produce, watering plants, and pruning plants. (Gafford Dep. Doc. # 22-3 at 17). The Garden is open seven days a week and closes at 7:00 p.m. Id. at 19-20. Gafford assisted Manger Pat Touchton with closing the store at or around 7:00 p.m. Id. at 19. Around this time, Gafford picked up two items (a gallon of milk and an onion) but did not pay for them in the same manner as a usual Garden customer would. Rather, she wrote down that she retrieved the two items and understood that the amount for the items would be taken from her next paycheck. (Gafford Aff. Doc. # 28-3 at ¶ 5).

Thereafter, Gafford and Touchston walked out of the store together and engaged in a social conversation for approximately ten to fifteen minutes. (Touchston Dep. Doc. # 28-4 at 11). Gafford testified that the nature of the conversation was "good night, have a good evening, see you tomorrow." (Gafford Dep. Doc. # 22-3 at 38). After the conversation was over, around 7:15 to 7:30 p.m., Gafford began walking to her car. Although it was still light outside, Gafford did not see uneven pavement and a hole in the parking

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lot. (Touchston Dep. Doc. # 28-4 at 10). Gafford tripped and fell on to the ground. Gafford stood up, brushed herself off, and stated that she would be fine. Id. at 19. No ambulance was called to the scene. Id. at 21.

A few days later, Gafford reported to work but noted that she could not lift one of her arms due to the injuries she sustained on the night in question. Id. At the direction of her supervisor, Gafford went to the emergency room. Id. at 22. She continued to try to do her job but ultimately gave up because she could not perform due to her injuries. Id. at 34. She underwent neck surgery on or about March 5, 2008, and submitted a claim to Ohio Casualty. Gafford contends,

Because I did not have health insurance coverage, I was told to contact Garden of Eat'n's insurance company about medical treatments. I spoke with a person from Garden of Eat'n's insurance company and advised them that I was injured after working at Garden of Eat'n. The person I spoke with told me that I was eligible for benefits under the Garden of Eat'n insurance policy. I received medical treatments which were paid by Garden of Eat'n's insurance company.

(Gafford Aff. Doc. # 28-3 at ¶¶ 10-13).

B. Insurance Correspondence

On June 12, 2008, Ohio Casualty informed Gafford that "There was no negligence on the part of Garden of Eat'n. Therefore, we will be unable to honor any claim under

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liability." (Doc. # 28-7). In the same letter, Ohio Casualty indicated, "Our insured's policy does provide a no-fault, Medical Payment Benefit to assist with any medical expenses incurred (i.e. necessary medical, hospital, surgical, x-ray) submitted to us for review up to a $10,000 limit." Id.

On June 27, 2008, the Gafford sent Ohio Casualty a letter pursuant to Florida Statute Section 627.4137 asking for a disclosure regarding whether coverage would be available under the Policy for her injuries, and if an exclusion applies, naming such exclusion. (Doc. # 28-6).2 Ohio Casualty

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responded on January 28, 2009, that no coverage would be available: "[I]t appears your client's, Ms. Sherri Gafford, injuries arose out of her own contributory negligence while working as an employee at our named insured's Garden of Eat'n, location in Tampa, Florida." (Doc. # 28-5 at 2).

C. The Court Proceedings

Gafford filed a negligence action against the Garden in State Court on February 26, 2009.3 Therein, she alleged that she was "an invitee" who suffered "serious and permanent bodily injury" on April 24, 2008, after tripping and falling

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due to the presence of a pothole and uneven pavement in the parking lot. (Doc. # 15-2, ¶¶ 4-10).

Thereafter, on November 22, 2010, Ohio Casualty filed the instant action for declaratory relief against the Garden and Gafford. (Doc. # 1). After fruitless default proceedings, Ohio Casualty filed a one-count amended complaint on January 3, 2011, seeking a declaration that the Policy does not require Ohio Casualty to defend or indemnify the Garden from Gafford's State court negligence action. (Doc. # 15).

Gafford filed her answer and affirmative defenses on January 25, 2011. (Doc. # 17). Gafford asserts estoppel and waiver affirmative defenses. (Doc. # 17). This case is set for a jury trial during the Court's February 2012, trial term. Cross Motions for Summary Judgment are before the Court.

II. Legal Standard

Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

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(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

The Court must draw all inferences from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor. See Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006). The moving party bears the initial burden of showing the Court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. See id. When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. See id.

In this diversity case, the Court applies the substantive law of the forum state unless federal constitutional or statutory law compels a contrary result. Tech. Coating Apps., Inc. v. United States Fid. & Guar. Co., 157 F.3d 843, 844 (11th Cir. 1998). Furthermore, this Court must apply Florida law in the same manner that the Florida Supreme Court would

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apply it. Brown v. Nichols, 8 F.3d 770, 773 (11th Cir. 1993). Under Florida law, the interpretation of an insurance contract is a matter of law to be decided by the court. Gas Kwick, Inc. v. United Pac. Inc. Co., 58 F.3d 1536, 1539 (11th Cir. 1995). Courts must construe an insurance contract in its entirety, striving to give every provision meaning and effect. Id. (citing Dahl-Eimers v. Mut. of Omaha Life Ins. Co., 986 F.2d 1379, 1382 (11th Cir. 1993)).

III. Analysis

A. The Duty to Defend and the Duty to Indemnify

The duty to defend is broader than...

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