United States District Court, N.D. Florida, Pensacola Division
CASEY RODGERS, CHIEF UNITED STATES DISTRICT JUDGE.
Tudor Insurance Company (“Tudor”) brought suit
against American Casualty Company of Reading, Pennsylvania
(“American Casualty”), seeking contribution for a
claim that Tudor paid to settle a state court lawsuit on
behalf of a mutual insured, Strategic Management Partners,
LLC (“SMP”). See 28 U.S.C. §
1332(a). Pending are cross motions for summary
judgment, disputing whether American Casualty's policy is
primary insurance or excess coverage in this instance. Having
fully reviewed the matter, the Court finds that Tudor's
Motion for Summary Judgment is due to be denied, and American
Casualty's Motion for Summary Judgment is due to be
parties agree that there is no outstanding dispute of
material fact. Beginning September 3, 2011, and continuing
through all relevant times, SMP served as the property
manager for the Royal Crest Apartments located in Pensacola,
Florida, under an agreement between Woods Hill Pensacola, LLC
(“Woods Hill”) and SMP. On September 9, 2011, an
individual named Deiante Elijah H.L. Graham was shot and
killed in the parking lot of the Royal Crest Apartments. At
the time of the injury, SMP was performing functions under
the Management Agreement, which lists SMP as the manager of
the Royal Crest Apartments and Woods Hill as the owner. The
representative of Mr. Graham's estate filed a wrongful
death lawsuit against SMP, as well as the alleged owners of
the Royal Crest Apartments,  for premises liability and
negligent security, alleging that his death was caused, in
whole or in part, by SMP. See Chamika Moultrie, as
Personal Representative of the Estate of Deiante Elijah H.L.
Graham, Deceased v. Strategic Management Partners, L.L.C., et
al., Case No. 2013-CA-001620 (Fla. Cir. Ct.)
(hereinafter “Moultrie lawsuit”),
Compl., ECF No. 1-3. Tudor settled the case on behalf of SMP
for the sum of $637, 500, and paid the settlement in full.
also undisputed that at the time of the incident that gave
rise to the Moultrie lawsuit, SMP was insured by
both Tudor and American Casualty, under separate policies.
Tudor issued a general commercial liability policy, number
BRP0000450 (“Tudor policy”), effective April 16,
2011 through April 16, 2012. It named Progressive Management
of America as the original named insured; Royal Crest
Apartments was added by endorsement as an additional
location; and Woods Hill and others were added by endorsement
as additional named insureds. Although SMP's name does
not appear in the policy, it is undisputed that the policy
covered SMP by virtue of its property management agreement
with Woods Hill. The Tudor policy has a $1, 000, 000 per
Casualty issued policy number CNP 4018358222 (“American
Casualty policy”) directly to SMP, effective July 6,
2011 through July 6, 2012. The American Casualty policy has a
$2, 000, 000 per occurrence limit. Its Businessowners Common
Policy conditions include an “other insurance”
provision, which provides the coverage is
“excess” over any other “primary
insurance” that is available in certain instances, and
also an endorsement stating that the coverage is
“excess” over valid collectible insurance when
the liability arises out of “your management of
property for which you are acting as real estate
filed this federal declaratory judgment suit, seeking
“reimbursement, equitable or ratable contribution[, ]
and equitable subrogation” from American Casualty. ECF
No. 1, at 1. Both parties have moved for summary judgment,
asserting that the facts are undisputed and only questions of
contract interpretation are at issue. In brief, Tudor argues
that it is entitled to pro-rata contribution from American
Casualty on grounds that both policies provide primary
coverage. American Casualty maintains that its policy
provides only excess coverage in this situation, and, because
the Moultrie settlement amount did not exceed the
limits of Tudor's primary coverage policy, the excess
coverage is not triggered in this case.
judgment is appropriate if there is “no genuine dispute
as to any issue of material fact” and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). In making these determinations, the Court
considers the non-movant's evidence as true and draws all
justifiable inferences in its favor. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When
considering cross motions for summary judgment, the Court
applies the same standards; each motion must be considered on
its own with the facts viewed in the light most favorable to
the nonmoving party, and to prevail, the moving parties must
establish that there is no genuine dispute of fact and that
they are entitled to judgment as a matter of law. See,
e.g., Am. Bankers Ins. Grp. v. United States, 408 F.3d
1328, 1331 (11th Cir. 2005); United States v.
Oakley, 744 F.2d 1553, 1555-56 (11th Cir. 1984).
federal court sitting in diversity applies federal procedural
law and state substantive law. See Erie R. Co. v.
Tompkins, 304 U.S. 64 (1938); Trailer Bridge, Inc.
v. Illinois Nat. Ins. Co., 657 F.3d 1135, 1141 (11th
Cir. 2011). Thus, the Court applies federal procedural law
and Florida substantive law; therefore, Florida law governs
the choice of law rules that will apply. See Rando v.
Gov't. Employees Ins. Co., 556 F.3d 1173, 1176 (11th
Cir. 2009). “With regard to insurance contracts,
Florida follows the ‘lex loci contractus'
choice-of-law rule, which ‘provides that the law of the
jurisdiction where the contract was executed governs the
rights and liabilities of the parties in determining an issue
of insurance coverage.'” Rando v. Govt. Emps.
Ins. Co., 556 F.3d 1173, 1176 (11th Cir. 2009) (quoting
State Farm Mut. Auto. Ins. Co v. Roach, 945 So.2d
1160, 1163 (Fla. 2006)). The parties agree that, based on
where each contract was executed, the Tudor policy is
governed by Florida law and the American Casualty policy is
governed by Georgia law.
either state's law, the interpretation of an insurance
contract is a matter of law. See Wash. Nat'l Ins.
Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013);
see also Claussen v. Aetna Cas. & Sur. Co., 380
S.E.2d 686, 687 (Ga. 1989); see also Giddens v. Equitable
Life Assurance Soc'y of the U.S., 445 F.3d 1286,
1297 (11th Cir. 2006) (stating this includes “the
determination and resolution of ambiguities”). Where
the language is plain and unambiguous, courts give effect to
the language of the policy as written. See Ruderman,
117 So.3d at 948; Claussen, 380 S.E.2d at 687-88
(“Under Georgia rules of contract interpretation, words
in a contract generally bear their usual and common
meaning.”). Also, the policy must be construed as a
whole, giving each provision its full meaning and effect.
See Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29,
34 (Fla. 2000); Boardman Petroleum, Inc. v. Federated
Mut. Ins. Co., 498 S.E.2d 492, 494 (Ga. 1998) see
also Fla. Stat. § 627.419(1); O.C.G.A. §
moves for summary judgment conceding that its insurance is
primary but arguing that the American Casualty policy was
also primary insurance, and consequently, American Casualty
is liable for contribution in the amount of its pro-rata
share of the Moultrie settlement. Anticipating
American Casualty's excess coverage argument, Tudor
argues that the excess clauses are either inapplicable or not
enforceable due to ambiguity. In response and in its own
motion for summary judgment, American Casualty maintains that
its coverage is excess under either of two separate excess
clauses in its policy. American Casualty further maintains
that Tudor's “tortured construction” of the
American Casualty policy fails to read all provisions as a
whole. ECF No. 49, at 12. For the following reasons, the
Court agrees with American Casualty that a plain reading of
the policy language requires a conclusion that its coverage
is excess in this situation.
or secondary coverage is coverage whereby, under the terms of
the policy, liability attaches only after a predetermined
amount of primary coverage has been exhausted.”
Coker v. Am. Guar. & Liab. Ins. Co., 825 F.3d
1287, 1294 (11th Cir. 2016) (quoting U.S. Fire Ins. Co.
v. Capital Ford Truck Sales, Inc., 257 Ga. 77, 355
S.E.2d 428, 431 (1987)). When the excess provision applies,
“excess” insurance is not available until the
limits of the primary policy have been exhausted. See
Coker, 825 F.3d at 1294. Even if both policies have
unambiguous “other insurance” clauses, if one
excess clause plainly applies, the Court will give it effect
and relieve the excess insurer “from any duty to
indemnify [the insured] for a covered loss until all primary
insurance coverage is exhausted.”Keenan
Hopkins Schmidt and Stowell Contractors, Inc. v. Cont'l.
Cas. Co., 653 F.Supp.2d 1255, 1265 (M.D. Fla. 2009);
see also Phoenix Ins. Co. v. Nationwide Prop. and Cas.
Ins. Co., 1:12-CV-00660-JOF, 2013 WL 11975142, at *3