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MID-Continent Casualty Co. v. Arpin And Sons, LLC

United States District Court, S.D. Florida

May 22, 2017

MID-CONTINENT CASUALTY COMPANY, a foreign corporation, Plaintiff,
ARPIN AND SONS, LLC, A Florida Limited Liability Company and LEE ELLIS BLUE, an individual, Defendants.


          MARCIA G. COOKE United States District Judge.

         This is 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”).[1] I have jurisdiction under 28 U.S.C. § 1332.

         Pending 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.


         The 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. (Id.).

         Arpin 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.).

         In any 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”).[2] (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).[3]

         On 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.[4]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).

         MCC's 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:

2. Exclusions
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 similar law.
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) above.
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).

         MCC 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).


         Summary 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).

         “The 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.

         Rule 56 “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).

         “A 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 ...

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