Travelers Indem. Co. v. Figg Bridge Eng'rs, Inc.

• Decision Date: 24 June 2019
• Docket Number: CASE NO. 18-22585-CIV-ALTONAGA/Goodman
• Citation: 389 F.Supp.3d 1060
• Parties: The TRAVELERS INDEMNITY COMPANY and The Phoenix Insurance Company, Plaintiffs, v. FIGG BRIDGE ENGINEERS, INC.; et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

389 F.Supp.3d 1060

The TRAVELERS INDEMNITY COMPANY and The Phoenix Insurance Company, Plaintiffs,

v.FIGG BRIDGE ENGINEERS, INC.; et al., Defendants.

CASE NO. 18-22585-CIV-ALTONAGA/Goodman

United States District Court, S.D. Florida.

Signed June 24, 2019

Laura Besvinick, Stroock and Stroock and Lavan, LLP, Melissa Anne Gillinov, Hinshaw & Culbertson, Miami, FL, Andrew Edward Grigsby, Jr., Hinshaw & Culbertson, Coral Gables, FL, for

Mark Andrew Boyle, Michael Wade Leonard, Amanda Kaye Anderson, Boyle, Leonard & Anderson, P.A., Fort Myers, FL, Manuel A. Arteaga-Gomez, Grossman Roth Yaffa Cohen, Paul Jon Layne, Paul Jon Layne PA, Spencer Marc Aronfeld, Coral Gables, FL, Zeb Israel Goldstein, Morgan & Morgan, P.A., Plantation, FL, Christos Lagos, Lagos & Priovolos PLLC, Alan Goldfarb, Alan Goldfarb, PA, Ronald David Rodman, Firedman Rodman & Frank, David Sampedro, Panter Panter & Sampedro, Yesenia Arely Collazo, Miami, FL, John Eric Romano, Romano Law Group, Lake Worth, FL, John Fletcher Romano, Romano Law Group, West Palm Beach, FL, Andres I. Beregovich, The Beregovich Law Firm, Orlando, FL, Melba Coral Rivera Sotomayor, Friedman, Rodman & Frank, P.A., Miami Beach, FL, Raymond T. Elligett, Buell & Elligett, P.A., Tampa, FL, for Defendants.

ORDER

CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court on Plaintiffs, The Travelers Indemnity Company ("Travelers") and The Phoenix Insurance Company's ("Phoenix['s]") Renewed Motion for Summary Judgment [ECF No. 144] ("Pls.' Mot."); and Defendant, Figg Bridge Engineers, Inc.'s ("FIGG['s]") Response in Opposition to Renewed Motion for Summary Judgment and Defendant's Cross Motion for Summary Judgment as to the Duty to Defend [ECF No. 149] ("Def.'s Mot."). Plaintiffs filed a Joint Response to [Def.'s Mot.] and Reply in Support of [Pls.' Mot.] [ECF No. 159] ("Pls.' Reply"); to which Defendant filed a Reply in Support of [Def.'s Mot.] [ECF No. 175] ("Def.'s Reply").¹ The Court has carefully reviewed the Second Amended Complaint [ECF No. 70] ("SAC"), the parties' submissions, the record, and applicable law.

I. BACKGROUND

A. Introduction

This is an insurance coverage dispute concerning Plaintiffs' duty to defend numerous personal injury lawsuits stemming from a fatal 2018 bridge collapse in Miami, Florida.

In 2015, FIGG and Munilla Construction Management, LLC ("MCM") entered into a contract with Florida International University ("FIU") to design and construct a bridge to accommodate pedestrian traffic between the FIU campus and the city of Sweetwater. (See SAC ¶¶ 36–37). Plaintiffs provided general commercial liability insurance policies to FIGG; those policies included professional liability exclusions. (See Pls.' SOF ¶¶ 1–5).

On March 15, 2018, the FIU pedestrian bridge collapsed, killing and injuring several people. (See Pls.' Mot. 2). As a result of the bridge collapse, various individuals filed personal injury lawsuits against FIGG. (See Def.'s SOF ¶ 1). The lawsuits were consolidated into a single case in state court, in which the presiding judge required the plaintiffs to file two separate complaints (the "Underlying Complaints"). (See id. ¶¶ 2–3). The Underlying Complaints have since been amended, and on October 10, 2018, the state court plaintiffs filed a Third Amended Model Worker Complaint [ECF No. 70-2] ("MWC") and Third Amended Model Complaint for Civilian Cases [ECF No. 70-3] ("MCC"). (See Def.'s SOF ¶ 4). As the state court case progressed, Plaintiffs sent multiple letters to FIGG (see Exhibit A [ECF No. 146-1] 6–83), agreeing to defend FIGG against the Underlying Complaints, subject to a full and complete reservation of rights.² (See Pls.' SOF ¶¶ 16, 17).

Plaintiffs filed this action in June 2018. (See generally Complaint [ECF No. 1] ). A few months later, Plaintiffs filed the operative SAC. Plaintiffs seek a declaratory judgment that they did not owe FIGG a duty to defend the allegations in the Underlying Complaints. (See id. ¶¶ 94–99). Plaintiffs also seek reimbursement for the fees, costs, and other expenses they incurred defending FIGG against the Underlying Complaints. (See id. 20).

On March 5, 2019, FIGG filed a Joint Motion to Dismiss as Moot [ECF No. 138]. FIGG argued there was no longer a case or controversy before the Court, as the Underlying Complaints had been dismissed in the state court action. (See id. 4).

The Court granted FIGG's Joint Motion to Dismiss in part. (See March 19, 2019 Order [ECF No. 143] 3). The Court agreed dismissal of the Underlying Complaints resulted in there not being a case or controversy.³ (See id. ). Yet, the Court found Plaintiffs could continue to seek reimbursement of fees and costs advanced to FIGG in defense of the Underlying Complaints attached to the SAC. (See id. ). The parties now move for summary judgment, asking the Court to determine whether Plaintiffs owed FIGG a duty to defend the allegations in the Underlying Complaints, and if not, whether Plaintiffs are entitled to reimbursement for the defense-related payments made on FIGG's behalf. (See generally Pls.' Mot.; Def.'s Mot.).

B. The Policy Exclusions

On November 1, 2017, Phoenix issued an insurance policy to FIGG providing commercial general liability coverage through November 1, 2018. (See Pls.' SOF ¶ 1). Concurrently, Travelers issued FIGG an umbrella policy for the same one-year period. (See id. ¶ 4).

Both polices include identical professional liability exclusions for " ‘[b]odily injury’ or ‘property damage’ arising out of the rendering of or failure to render any ‘professional services.’ " (Commercial Insurance Policy [ECF No. 70-5] 371 (the "Exclusion") (alteration added)).⁴ The Exclusion defines "professional services" as "any service requiring specialized skill or training," including:

a. Preparation, approval, provision of or failure to prepare, approve, or provide any map, shop drawing, opinion, report, survey, field order, change order, design, drawing, specification, recommendation, warning, permit application, payment request, manual or instruction;

b. Supervision, inspection, quality control, architectural, engineering or surveying activity or service, job site safety, construction contracting, construction administration, construction management, computer consulting or design, software development or programming service; or selection of a contractor or subcontractor; or

c. Monitoring; testing, or sampling service necessary to perform any of the services described in Paragraph a. or b. above.

(Id. ¶¶ 3(a)–(c)). Plaintiffs' duty to defend FIGG turns on whether the allegations in the Underlying Complaints fall under the Exclusion.

II. LEGAL STANDARD

Summary judgment is rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c). An issue of fact is "material" if it might affect the outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is "genuine" if the evidence could lead a reasonable jury to find for the non-moving party. See id. ; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). At summary judgment, the moving party has the burden of proving the absence of a genuine issue of material fact, and all factual inferences are drawn in favor of the non-moving party. See Allen v. Tyson Foods Inc. , 121 F.3d 642, 646 (11th Cir. 1997). The non-moving party's presentation of a "mere existence of a scintilla of evidence" in support of its position is insufficient to overcome summary judgment. Anderson , 477 U.S. at 252, 106 S.Ct. 2505.

If there are any factual issues, summary judgment must be denied and the case proceeds to trial. See Whelan v. Royal Caribbean Cruises Ltd. , No. 1:12-CV-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013) (citing Envtl. Def. Fund v. Marsh , 651 F.2d 983, 991 (5th Cir. 1981) ). Even when the parties "agree on the basic facts, but disagree about the inferences that should be drawn from these facts[,]" summary judgment "may be inappropriate." Id. (alteration added; citation omitted). Courts cannot weigh conflicting evidence, see Skop v. City of Atlanta, Ga. , 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting Carlin Commc'n, Inc. v. S. Bell Tel. & Tel. Co. , 802 F.2d 1352, 1356 (11th Cir. 1986) ); and "[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed," United States v. Oakley , 744 F.2d 1553, 1555 (11th Cir. 1984) (alteration added; quoting Bricklayers Int'l Union, Local 15 v. Stuart Plastering Co. , 512 F.2d 1017, 1023 (5th Cir. 1975) ).

III. DISCUSSION

At the outset, the Court identifies the undisputed facts underlying the parties' cross-motions for summary judgment.

The parties agree Plaintiffs owe FIGG a duty to defend claims of bodily injury and property damage under the policies. (See Pls.' SOF ¶¶ 2, 4; Def.'s Opp. to Pls.' SOF ¶¶ 2, 4). The parties also agree the policies include professional liability exclusions, which, if triggered, exempt Plaintiffs from the duty to defend. (See id. ¶¶ 3, 5). The parties do not dispute that the allegations in the Underlying Complaints pertained to "bodily injury" or "property damage" under Plaintiffs' policies. (See generally Pls.' Mot.; Def.'s Mot.). The parties thus do not dispute that Plaintiffs owed FIGG a duty to defend, barring application of the Exclusion in Plaintiffs' policies.

These agreements lead to the primary issue on which the parties depart: whether the Exclusion applies. If the Exclusion applies, Plaintiffs did not owe FIGG a duty to defend and may seek reimbursement for payments made and costs incurred on FIGG's behalf defending the allegations in the...