U.S. Fire Ins. Co. v. Milood Ben Ali

Decision Date25 March 2002
Docket NumberNo. 99-610-CIV-JORDAN.,99-610-CIV-JORDAN.
Citation198 F.Supp.2d 1313
PartiesUNITED STATES FIRE INSURANCE COMPANY, Plaintiff, v. MILOOD BEN ALI and Credit General Insurance Company, Defendants.
CourtU.S. District Court — Southern District of Florida

Barry L. Davis, Holly S. Harvey, Thornton Davis & Fein, Miami, FL, for United States Fire Insurance Company, plaintiff.

Stewart Dorian Williams, Angones Hunter McClure Lynch & Williams, Miami, FL, for Milood Ben Ali, Credit General Ins. Co., defendants.


JORDAN, District Judge.

United States Fire Insurance Company seeks a judicial declaration that it is not obligated to indemnify Milood Ben Ali under a "Defender" commercial umbrella policy issued by it to Central Florida Equipment Rental of Dade County (Central Florida) for a judgment entered against Mr. Ben Ali in a wrongful death action brought by the estate of Lazaro Vazquez. U.S. Fire further argues that, even if Mr. Ben Ali qualifies as an "insured" under its umbrella policy, it has no obligation until Credit General, as Mr. Ben Ali's insurer, pays the amount of the "retained limit" in the amount of $1 million and until the limit of "other insurance" in the amount of $300,000 is paid, for a total of $1.3 million, or entry of a judgment against Mr. Ben Ali in excess of $1.3 million has occurred. U.S. Fire has moved for summary judgment, and Mr. Ben Ali has moved for partial summary judgment. For the reasons stated below, U.S. Fire's motion for summary judgment [D.E. 45] is GRANTED, and Mr. Ben Ali's motion for partial summary judgment [D.E. 43] is DENIED.


Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A material fact is one that might affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where the non-moving party fails to prove an essential element of its case for which it has the burden of proof at trial, summary judgment is warranted. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hilburn v. Murata Elecs. North Am., Inc., 181 F.3d 1220, 1225 (11th Cir.1999). Thus, the task with regard to U.S. Fire's summary judgment motion is to determine whether, considering the evidence in the light most favorable to Mr. Ben Ali, the non-moving party, there is evidence on which the trier of fact could reasonably find a verdict in his favor. See Liberty Lobby, 477 U.S. at 251, 106 S.Ct. 2505; Hilburn, 181 F.3d at 1225; Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). Likewise, the task with regard to Mr. Ben Ali's motion for partial summary judgment is to determine whether, considering the evidence in the light most favorable to U.S. Fire, the non-moving party, there is evidence on which the trier of fact could reasonably find a verdict in its favor. The parties agree that Florida law applies.


Central Florida is an equipment leasing contractor located in Dade County, Florida. In November of 1992, Dade County entered into a 90-day contract with Central Florida to provide post-Hurricane Andrew debris removal services. Specifically, the project required removing Hurricane Andrew debris from Kendall Indian Hammocks Park and transporting the debris to designated disposal sites. At the time the contract was entered into, it was well understood by both Central Florida and Dade County that Central Florida did not possess or otherwise own any of the tractor trailers that would be necessary for the transportation of the debris, and that Central Florida would hire, retain, or otherwise engage subcontractors and/or independent contractors. In order to get the trucks needed to transport the debris, Central Florida utilized the services of various truck brokers who received commissions for their services. The truck brokers were therefore intermediaries between Central Florida and the truck owners and did not, themselves, own or operate any tractor trailers or trucks.

Central Florida contracted with Alco Trucking Services (Alco), a truck broker, to arrange for performance of some of the Dade County work. Alco then contracted with another truck broker, G.T. Aggregate Hauling which, in turn, contracted with various truck owner/operators to perform the actual hauling of the hurricane debris. One of the owner/operators with whom G.T. Aggregate contracted was Mr. Ben Ali. Mr. Ben Ali owned a combination tractor-trailer truck, and employed Momodou Kasseh as the driver of the truck.

Central Florida's only contractual relationship was with Alco. It had no contractual relationship with G.T. Aggregate, Mr. Ben Ali, or Mr. Kasseh. Under its agreement with Alco, Central Florida was to pay a fixed amount per-cubic yard of debris hauled. Similarly, Alco was to pay G.T. Aggregate on a per-cubic yard basis and G.T. Aggregate, in turn, paid Mr. Ben Ali on a per-cubic yard basis.

Central Florida had no relationship with any of the other truck brokers for the Dade County project, and had no responsibility for any of the brokers' truck drivers themselves. All arrangements with respect to any individual truck driver were made by the truck brokers or the owner/operators. Central Florida did not employ the individual truck drivers, and had no responsibility for gas, tolls, insurance, maintenance, or any other expense of the individual drivers or owner/operators or their trucks. The bid documents submitted to Dade County represented that Central Florida would mobilize at least four loaders, two excavators, ten laborers, two supervisors, one superintendent, and sixty trucks for the project. The contract documents also required Central Florida to provide liability insurance of not less than $500,000 per occurrence "covering all owned, non-owned, and hired vehicles, used in connection with the work."

The Dade County contract further provided that the trucks would be measured to account for the truck load in cubic yards to determine the average volume each truck would carry, and that a Dade County engineer and Central Florida would reach agreement on the volume each truck could carry. The engineer would then maintain a list of approved trucks, listing their assigned unit numbers, year, make, and agreed volume. The contract required a Dade County site inspector to examine all trucks leaving the dump site and fill in a load ticket with the following information: (a) truck number, (b) contract number, (c) contractor, (d) date, (e) time departed, (f) estimated volume, and (g) bid item number corresponding to the designated dump site. To expedite the filling out of this form, the contract required that all trucks working on the project have the contractor's company name, telephone number, truck number, and measured capacity clearly displayed on the doors. Consequently, in accordance with the contractual requirements, a small cardboard placard bearing the Dade County logo, the project number for the job, the truck number, the cubic yardage, and the contractor's name (Central Florida Equipment) was taped on Mr. Ben Ali's truck, over the truck door.2

Each truck broker required proof of liability insurance from the individual broker or owner/operator with whom it contracted. For example, Alco was insured under a $300,000 liability insurance policy issued by Allstate Insurance Company and G.T. Aggregate was insured with Credit General under a $300,000 policy. G.T. Aggregate required Mr. Ben Ali to carry liability insurance, and in order to facilitate this requirement, G.T. Aggregate added Mr. Ben Ali as an insured under its policy with Credit General and deducted the premiums from its payments to Mr. Ben Ali.

On November 27, 1992, while hauling hurricane debris in Mr. Ben Ali's truck, Mr. Kasseh was involved in a motor vehicle accident in which Lazaro Vazquez was killed. The personal representative of Mr. Vazquez's estate filed a wrongful death action against Mr. Ben Ali, G.T. Aggregate, Alco, and Central Florida, along with others in circuit court in Dade County, Florida. At the time of the accident, Central Florida was insured by Royal Insurance Company under a business automobile liability policy with limits of $1 million per occurrence. In addition, Central Florida was covered by an umbrella policy, or "excess" insurance policy issued by U.S. Fire, with a $4 million policy limit.

Royal defended Central Florida in the state court action. And because the Vazquez estate contended that Mr. Kasseh was insured under Royal's policy, Royal provided a defense to Mr. Kasseh under a reservation of rights.3 In January of 1997, Royal settled with the Vazquez estate, paying its $1 million policy limit in exchange for a release of liability against Central Florida and Mr. Kasseh. In February of 1997, Credit General paid the Vazquez estate $20,000 to settle the claims against G.T. Aggregate and Overland Carriers. This left Mr. Ben Ali as the only remaining defendant in the wrongful death action. In May of 1997, Credit General agreed to provide Mr. Ben Ali a defense.4

The wrongful death action against Mr. Ben Ali was tried before a jury in November of 1997. Mr. Ben Ali admitted liability, so the only issue was the amount of damages. On November 19, 1997, the jury entered a verdict against Mr. Ben Ali in the total amount of $1,102,868. Credit General's counsel requested that U.S. Fire contribute to payment of the verdict, on the theory that Mr. Ben Ali was an omnibus insured under Central Florida's umbrella insurance policy. U.S. Fire declined to do so and filed this declaratory action.

In April of 1999, the Vazquez estate, Mr. Ben Ali, and Credit General entered into a...

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    ...other courts have found significant in differentiating between simple use and a loan. Compare United States Fire Ins. Co. v. Milood Ben Ali, 198 F.Supp.2d 1313, 1320 (S.D.Fla.2002) (finding that the vehicle was not "hired" by the employer and observing that the employee's use was "occasiona......

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