United States District Court, S.D. Florida
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Motions for Summary Judgment
filed by Plaintiff Zurich American Insurance Company
(“Zurich”), ECF No. , and Defendant National
Specialty Insurance Company (“National”), ECF No.
, (collectively, the “Motions”). The Court
has carefully reviewed the Motions, the record, all
supporting and opposing filings, the exhibits attached
thereto, and is otherwise fully advised in the premises. For
the reasons that follow, Zurich's Motion for Summary
Judgment is granted and National's Motion for Summary
Judgment is denied.
Maroudis (“Maroudis”), an employee of Diner 84,
Inc. (“Diner 84”), filed a lawsuit against Davie
Plaza, LLC (“Davie Plaza”) in the Seventeenth
Judicial Circuit in and for Broward County, Florida
(“Underlying Lawsuit”). ECF No.  (Pl. Ctr.
Stat. Facts) ¶1 (“Undisputed
Facts”); ECF No. [27-1]. Maroudis later passed
away from causes unrelated to the Underlying Lawsuit, and his
personal representative pursued these claims on behalf of
Maroudis's estate. Undisputed Facts ¶1.
Second Amended Complaint filed in the Underlying Lawsuit
alleged that, on June 22, 2007, Maroudis's supervisor
told him to climb onto the roof of Diner 84 to repair a
leak. Id. ¶4. To do so,
Maroudis's supervisor instructed him to use Diner
84's ladder, climb to the first level of the roof, and
then use the same ladder to climb onto the second level.
Id. ¶5. Maroudis positioned the ladder one foot
outside of Diner 84's rear kitchen door and leaned the
top of the ladder against the building. Id. ¶6,
7. He then placed the bottom of the ladder on an uneven
surface that divides the asphalt from the concrete.
Id. ¶7; Def. Stat. Facts ¶2(e); ECF No.
20-1 at 57-58, 65, 80, 89-90, and 99-101. After climbing onto
Diner 84's roof and taking care of the leak, Maroudis
descended the ladder, and as he did so, it shifted and caused
him to fall to the ground. Undisputed Facts ¶3, 8; ECF
No. [27-2] ¶12-14.
pursued a negligence claim against Davie Plaza to recover for
personal injuries, alleging that Davie Plaza “failed to
provide a reasonably safe premises at that time that it
turned over the property to its tenant.” ECF No. 
(“Def. Stat. Facts”) ¶2(f). The Underlying
Lawsuit culminated in a jury trial, and on September 11,
2015, a jury entered a verdict in the amount of $15, 212,
930.77. Def. Stat. Facts ¶2(h); ECF No. [19-3]. The jury
found that the negligence of Davie Plaza, “84
Diner” and Maroudis were a legal cause of loss, injury
or damage to Maroudis. Id. In apportioning
liability, the jury found Davie Plaza 98% at fault while
Maroudis and “84 Diner” were each 1% at fault.
issued a commercial general liability policy to Diner 84, No.
RCE400595-07, in effect from June 14, 2007 to June 14, 2008
with policy limits of $1, 000, 000 per occurrence and $2,
000, 000 in the aggregate (“National policy”).
Undisputed Facts ¶9; Def. Stat. Facts ¶2(b); ECF
No. [27-3] at 3. The National policy contains an Additional
Insured-Managers and Lessors of Premises Endorsement
(“Endorsement”) which, on July 25, 2007, was
amended to specifically reference Davie Plaza. Undisputed
Facts ¶10, 11; Def. Stat. Facts ¶2(b); ECF No.
[27-3] at 2. The Endorsement provides as follows:
WHO IS AN INSURED (Section II) is amended to include as an
insured the person or organization shown in the Schedule but
only with respect to liability arising out of the ownership,
maintenance or use of that part of the premises leased to you
and shown in the Schedule and subject to the following
insurance does not apply to:
1. Any “occurrence” which takes place after you
cease to be a tenant in that premises.
2. Structural alterations, new construction or demolition
operations performed by or on behalf of the person or
organization shown in the Schedule.
Facts ¶11; ECF No. [27-3] at 91. The Endorsement
identifies the premises leased to Diner 84 as “11432 W
STATE RD 84 FT. LAUDERDALE, FL 33325.” ECF No. [27-3]
addition, Davie Plaza is a named insured under a commercial
general liability insurance policy, No. GLO8445651-07, issued
by Zurich and in effect from June 1, 2007 to June 1, 2008
(“Zurich policy”). Undisputed Facts ¶16; ECF
No. [27-4]. Both the Zurich and the National policies contain
identical “Other Insurance” clauses that, in
pertinent part, state:
other valid and collectible insurance is available to the
insured for a loss we cover under Coverages A and B, our
obligations are limited as follows:
a. Primary Insurance This insurance is primary except when
paragraph b. below applies. If this insurance is primary, our
obligations are not affected unless any of the other
insurance is also primary. Then, we will share with all that
other insurance by the method described in c. below.
b. Excess Insurance
insurance is excess over:
(2) Any other primary insurance available to you covering
liability for damages arising out of the premises or
operations, or the products and completed operations, for
which you have been added as an additional insured by
attachment of an endorsement.
When this insurance is excess, we will have no duty under
Coverage A or B to defend the insured against any
“suit” if any other insurer has a duty to defend
the insured against that “suit.” If no other
insurer defends, we will undertake to do so, but we will be
entitled to the insured's rights against all those other
27, 2011, Zurich's counsel sent a letter to National and
Diner 84 in which it tendered Davie Plaza's defense and
indemnity for the claims in the Underlying Lawsuit.
Undisputed Facts ¶17. National declined to defend or
indemnify Davie Plaza under the National policy, stating that
Maroudis's incident occurred in a “Common
Area” under the lease between Diner 84 and Davie Plaza.
Id. ¶18. To date, Zurich has incurred $168,
502.95 in fees and costs relating to the defense of the
underlying lawsuit. Id. ¶19.
November 28, 2001, TNA Enterprises, Inc. d/b/a 84 Diner
entered into a lease agreement with Davie Plaza for the lease
of certain space located at 11426 State Road in Davie,
Florida (“the Lease”). Def. Stat. Facts
¶2(a); ECF No. [19-1] at 1, 6. The Lease contains the
1.1 “Common Area”
All areas and facilities in the Shopping Center designated
for the general use, in common, of tenants of the Shopping
Center, including the Tenant hereunder, its officers, agents,
employees and customers. Common areas shall include, without
limitation, to the extent provided, the parking areas,
sidewalks, roadways, loading platforms, restrooms, ramps and
That certain space located in a building erected or to be
erected in the Shopping Center containing approximately 1,
283 square feet of Floor Area identified as a portion of Bay
25 on the site plan (the “Site Plan”) attached
hereto as Exhibit “8” and by this reference
ECF No. [19-1] at 6.
Lease also contains the following language involving control
of the “Common Area”:
9.1. Control of Common Areas by Landlord
All automobile parking areas, driveways, entrances and exits
thereto, and other facilities furnished by Landlord in or
near the Shopping Center, including employee parking areas,
the truck way or ways, loading docks, package pick-up
stations, pedestrian sidewalks and ramps, landscaped areas,
exterior stairways, and other areas and improvements provided
by landlord for the general use, in common, of tenants, their
officers, agents, employees and customers, shall at all times
be subject to the exclusive control and management of
Landlord, and Landlord shall have the right from time to time
to establish, modify and enforce reasonable rules and
regulations with respect to all facilities and areas
mentioned in this Article. Landlord shall have the right to
construct, maintain and operate lighting facilities on all
said areas and improvement from time to time to change the
area, level, location and arrangement of parking areas and
other facilities hereinabove referred to and to restrict
parking by tenants, their officers, agents and employees to
employee parking areas. Landlord shall not have any duty to
police the traffic in the parking areas.