S.-Owners Ins. Co. v. Wall 2 Walls Constr., LLC
| Decision Date | 26 November 2013 |
| Docket Number | CASE NO. 8:12-cv-1922-T-33TBM |
| Parties | SOUTHERN-OWNERS INSURANCE COMPANY, Plaintiff, v. WALL 2 WALLS CONSTRUCTION, LLC and YARBRA GIBBS, Defendants. WALL 2 WALLS CONSTRUCTION, LLC Counter-Plaintiff, v. SOUTHERN-OWNERS INSURANCE COMPANY, Counter-Defendant. |
| Court | U.S. District Court — Middle District of Florida |
This matter is before the Court pursuant to Plaintiff Southern-Owners Insurance Company's Motion for Summary Judgment (Doc. # 32) and Defendant Wall 2 Walls's Motion for Summary Judgment (Doc. # 33), both filed on August 30, 2013. On September 29, 2013, Southern-Owners and Wall 2 Walls filed responsive submissions. (Docs. ## 34, 35). On October 12, 2013, Wall 2 Walls filed a reply to Southern-Owners's response. (Doc. # 36). As discussed below, theCourt denies Southern-Owners's Motion for Summary Judgment and grants Wall 2 Walls's Motion for Summary Judgment.
On May 29, 2010, Defendant Yarbra Gibbs was involved in an automobile accident in St. Petersburg, Florida, having been hit by a car driven by Keith Galloway. (Doc. # 32 at 2). At the time, Galloway was acting in the course and scope of his employment with Defendant Wall 2 Walls, and the vehicle was leased and/or owned by Clyde Walls.1 (Id. at 1-3). The instant case arises from a complaint filed by Gibbs in state court on July 12, 2012, against Galloway, Walls, and Wall 2 Walls. (Doc. # 12-1). The complaint alleges the above facts, (Id. at 3), which neither party in this action disputes.
On the date of the accident, Wall 2 Walls maintained an insurance policy (Doc. # 1-2) with Plaintiff Southern-Owners that offered commercial general liability coverage. (Id. at 3). Wall 2 Walls also maintained a separate commercial automobile insurance policy (Doc. # 32-2) with Progressive Express Insurance Company ("Progressive").(Id.). The vehicle driven by Galloway on the date of the accident is identified as a covered automobile under the Progressive policy. (Doc. # 32-2 at 3). In its sworn insurance disclosures, provided to Gibbs's attorney as required pursuant to Florida Statutes § 627.4137, Progressive identified Wall 2 Walls, Clyde Walls, and Keith Galloway as its insureds. (Docs. ## 32 at 3; 32-3).
Following the accident, Progressive, on behalf of the insureds, offered to tender its policy limits in the amount of $100,000 to Gibbs. (Doc. # 32-4). The proposed release that accompanied Progressive's tender identified Galloway, Walls, and Wall 2 Walls as releasees. (Doc. # 32-5).
The Southern-Owners policy excludes coverage for "bodily injury or property damage arising out of the ownership, maintenance, use, or entrustment to others of any aircraft, 'auto' or watercraft owned or operated by or rented or loaned to any insured." (Doc. # 1-2 at 26). The policy provides for a limited exception, however, in the form of a "hired auto and non-owned auto liability" endorsement. (Doc. # 32 at 4). That endorsement reads:
2. HIRED AUTO AND NON-OWNED AUTO LIABILITY
(Doc. # 1-2 at 14). On the date of the accident, Wall 2 Walls maintained no other commercial general liability policies. (Doc. # 33 at 4).
On September 22, 2010, Southern-Owners explained to Wall 2 Walls in a letter that it would not provide coverage for the claim. (Doc. # 1-3). Gibbs filed the underlying complaint in state court on July 12, 2012. (Doc. # 12-1). Southern-Owners filed suit against Wall 2 Walls, Galloway,2 and Gibbs, in this Court on August 23, 2012. (Doc. # 1). The one-count Complaint seeks declaratory judgment pursuantto Chapter 86, Florida Statutes and 28 U.S.C. § 2201 as to Southern-Owners's duty to provide a defense and indemnify Wall 2 Walls and Galloway for Gibbs's claims. (Id.).
On October 17, 2012, Wall 2 Walls filed a counterclaim against Southern-Owners, alleging that Southern-Owners's denial of coverage breached its duty to defend and indemnify Wall 2 Walls. (Doc. # 12). Cross motions for summary judgment are now before the Court on the issue of whether the Southern-Owners policy provides coverage to Wall 2 Walls for Gibbs's claim. (Doc. # 32; Doc. # 33).
Summary judgment is appropriate "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). A factual dispute alone is not enough to defeat a properly pled motion for summary judgment; only the existence of a genuine issue of material fact will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
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 (11th Cir. 1996) (citing Hairston v. Gainesville SunPubl'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 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. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "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 that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties' allegations or evidence, the non-moving party's evidence is presumed to be true and all reasonable inferences must be drawn in the non-moving party's favor. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if thatinference introduces a genuine issue of material fact, the court should not grant summary judgment. Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron & Steel Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir. 1988)). However, if the non-movant's response consists of nothing "more than a repetition of his conclusional allegations," summary judgment is not only proper, but required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982).
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 apply it. Brown v. Nichols, 8 F.3d 770, 773 (11th Cir. 1993).
In the instant case, the parties dispute the applicability of the escape clause in the "hired auto and non-owned auto liability" endorsement of the Southern-Owners policy. As stated previously, the endorsement reads as follows:
2. HIRED AUTO AND NON-OWNED AUTO LIABILITY
(Doc. # 1-2 at 14) (emphasis added).
The dispute turns on the meaning of the phrase "same or similar coverage." If Wall 2 Walls's automobile insurance policy with Progressive qualifies as the same as or similar to Wall to Walls's coverage under the Southern-Owners policy, the escape clause applies and the Southern-Owners policy does not extend coverage. See Md. Cas. Co. v. Reliance Ins. Co., 478 So. 2d 1068, 1071 (Fla. 1985)(giving full effect to policy's escape clause and holding that the policy therefore did not cover tortfeasor). If, on the other hand, the two policies are not the same or similar, the escape clause does not apply and the Southern-Owners policy covers Wall 2 Walls's liability in the instant case. See id.
Southern-Owners asserts that the phrase "same or similar coverage" includes any "other insurance available which provided coverage for the underlying claim." (Doc. # 32 at 7). As Progressive offered to tender its policy limits to the underlying claimant, Southern-Owners argues that the Progressive policy therefore qualifies as "same or similar coverage," triggering the escape clause and relieving Southern-Owners of any obligation to defend or indemnify Wall 2 Walls.3 (Id.)
Wall 2 Walls counters with a narrower definition of "same or similar coverage," arguing that it refers instead to ...
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