United States District Court, S.D. Florida
MID-CONTINENT CASUALTY COMPANY, a foreign corporation, Plaintiff,
ARPIN AND SONS, LLC, A Florida Limited Liability Company and LEE ELLIS BLUE, an individual, Defendants.
ORDER ON MOTION FOR SUMMARY JUDGMENT
G. COOKE United States District Judge.
an action for declaratory relief under 28 U.S.C. § 2201
to determine the scope of Plaintiff Mid-Continent Casualty
Company's (“MCC”) obligations, if any, under
a commercial general liability insurance policy (the
“Policy”) to defend and/or to indemnify Defendant
Arpin and Sons, LLC (“Arpin”) against a
negligence lawsuit Defendant Lee Ellis Blue filed against
Arpin in the Circuit Court of Miami-Dade County, Florida (the
“state-court action”). I have jurisdiction under 28
U.S.C. § 1332.
is MCC's Motion for Summary Judgment. (ECF No. 44). I
have reviewed the Motion, the parties' supporting and
opposing briefs, the record, and the relevant legal
authorities. For the reasons that follow, I grant the Motion.
state-court action arose out of a construction project at
1180 N.W. 99th Street in Miami-Dade County, Florida (the
“Project”). (ECF No. 56-5 ¶ 9). According to
MCC, Arpin entered into a verbal agreement with the owner of
the property, Faith Deliverance Center, Inc. of Broward
(“FDC”), to act as general contractor for the
Project. (ECF No. 45 ¶ 4). MCC asserts that as general
contractor, Arpin was responsible for worksite safety and
compliance during the Project and had a duty to supervise the
construction activities in connection therewith.
describes its agreement with FDC, and its responsibilities
with respect to the Project, differently. It claims that FDC
asked Arpin to “procure the building permits related to
the [P]roject, because it could not secure the permits on its
own” due to the fact that it did not have the necessary
general contractor license and insurance certificates. (ECF
No. 57 at 3). Arpin asserts that it was “acting solely
as a volunteer while securing the permits, ” “was
never paid for the services, ” and that “no
obligation other than to secure permits . . . was created by
the verbal agreement between FDC and Arpin.”
(Id.). Arpin also denies that it was the
Project's general contractor. (Id.).
event, on July 26, 2010, Blue, an FDC employee (ECF No. 45
¶ 36), was working on the Project when he was
electrocuted, causing him severe injuries including the
amputation of his arms (the “incident”).
(Id. ¶ 4). The day after the incident, while
Blue was in the hospital, Arpin initiated a workers'
compensation claim on Blue's behalf with its insurer,
Builders Insurance Group/Vinings Insurance Company
(“Vinings”). (ECF 58-4 at 23-24). When Vinings'
investigation revealed that FDC did not carry workers'
compensation insurance, Vinings concluded that Arpin was the
Project's general contactor and began making medical and
indemnity payments to Blue and his medical providers under
its policy (ECF No. 45 ¶¶ 27-32).
October 21, 2013, Blue filed his original Complaint
(“OC”) against Arpin (among others) alleging that
it was negligent in performing its duties as the
Project's general contractor. (ECF No. 56-1). Blue filed
a First Amended Complaint (“FAC”) (ECF No. 56-2)
on January 7, 2014, and then a Second Amended Complaint
(“SAC”) (ECF No. 56-5) in January
2016.Upon the filing of that pleading, MCC hired
counsel to defend Arpin in the state-court action, subject to
a reservation of rights. (ECF No. 45 ¶ 6). Arpin
contends that the Policy required MCC to provide it with a
defense at the outset of the state-court action, and that MCC
must indemnify it for the fees and costs it incurred
defending the action in the meantime. (ECF No. 57 at 1-2).
Arpin further argues that MCC must indemnify Arpin for
“any judgment, regardless of the amount, that might be
entered in favor of Blue and against Arpin.”
(Id. at 2).
Policy with Arpin covered the period from January 7, 2010
through January 7, 2011, and thus was effective on the day of
incident. (ECF No. 45 at 1 n.1). It provided Arpin with
commercial liability coverage for claims involving bodily
injuries caused by an “occurrence, ” subject to
certain exclusions. (ECF No. 7-1 at 7 ¶ B.1). MCC
invokes two of those exclusions to argue that the Policy does
not cover Blue's claim. The exclusions provide:
This insurance does not apply to . . . .
d. Workers' Compensation And Similar Laws Any obligation
of the insured under any workers' compensation,
disability benefits or unemployment compensation law or any
e. Employer's Liability “Bodily injury” to:
(1) An “employee” of the insured arising out of
and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the
insured's business; or
(2) The spouse, child, parent, brother or sister of that
“employee” as a consequence of Paragraph (1)
This exclusion applies whether the insured may be liable as
an employer or in any other capacity and to any obligation to
share damages with or repay someone else who must pay damages
because of the injury.
This exclusion does not apply to liability assumed by the
insured under an “insured contract”.
(ECF No. 7-1 at 16 ¶¶ 2.d-e).
argues that given these exclusions, the Policy does not
require it to defend or to indemnify Arpin in the state-court
action. It filed this action on April 14, 2016 seeking a
declaratory judgment to that effect. (ECF No. 1).
judgment “shall be granted 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 a judgment as a matter of
law.” Allen v. Tyson Foods, Inc., 121 F.3d 642
(11th Cir. 1997) (quoting Fed.R.Civ.P. 56(c)) (internal
quotations omitted); Damon v. Fleming Supermarkets of
Florida, Inc., 196 F.3d 1354, 1358 (11th Cir. 1999).
Thus, the entry of summary judgment is appropriate
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
moving party bears the initial burden to show the district
court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at
trial.” Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991). “Only when that burden
has been met does the burden shift to the non-moving party to
demonstrate that there is indeed a material issue of fact
that precludes summary judgment.” Id.
“requires the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the
‘depositions, answers to interrogatories, and
admissions on file, ' designate ‘specific facts
showing that there is a genuine issue for trial.”
Celotex, 477 U.S. at 324. Thus, the nonmoving party
“may not rest upon the mere allegations or denials of
his pleadings, but must set forth specific facts showing that
there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal
quotation marks omitted).
factual dispute is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.” Damon, 196 F.3d at 1358. “A mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that the jury could reasonably find for that
party.” Abbes v. Embraer Servs., Inc., 195 F.
App'x 898, 899-900 (11th Cir. 2006) (quoting Walker
v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)). When
deciding whether summary judgment is appropriate, “the
evidence, and all inferences drawn from ...