United States District Court, S.D. Florida
CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE
CAUSE came before the Court on Plaintiff, Travelers
Property Casualty Company of America's Motion for Summary
Judgment (“Plaintiff's Motion”) [ECF No. 94]
and Defendant, Douglas Barkley's Motion for Final Summary
Judgment, (“Defendant's Motion”) [ECF No.
95], both filed May 30, 2017. The Court has carefully
considered the parties' written submissions,
record, and applicable law.
a maritime insurance action. Plaintiff seeks a declaration it
was not obligated to provide a legal defense to Defendant in
a now-settled wrongful death action. (See Am. Compl.
¶¶ 29-30; Order of Dismissal with Prejudice [ECF
No. 95-4]). For his part, Defendant requests a declaration
Plaintiff had a duty to defend and indemnify him and his
assignee - certain underwriters at Lloyd's, Syndicate
4420, Ark Underwriting, Inc. (“Lloyd's”) -
against the claims in the underlying wrongful death action,
and reimburse Lloyd's for Plaintiffs pro rata share, or
50 percent, of Lloyd's out of pocket costs incurred in
Barkley's defense, including attorney's fees.
(See Countercl. ¶¶ 5-6).
30, 2014 Joseph Grosso was transported on the M/V
Scubatyme III (the “Vessel”) to a dive
location off Pompano Beach, Florida. (See Def.'s
SMF ¶ 1; Pl.'s SMF Resp. ¶ 1; Am. Compl. ¶
12; Def.'s Answer ¶ 12). Salt ‘N Blue, LLC
owned the Vessel (see Def.'s SMF ¶ 2; Am.
Compl. ¶ 6), which was operated by its captain Robert
Wranovics, and Barkley, a mate and deckhand responsible for
supervising the passengers in relation to activities
conducted aboard the boat (see Def.'s SMF
¶¶ 4-5; Pl.'s SMF Resp. ¶¶ 4-5; Am.
Compl. ¶ 12; Def.'s Answer ¶ 12).
embarked on this excursion to scuba dive, accompanied by his
brother. (See Pl .'s SMF ¶ 3; Def.'s
SMF ¶¶ 1, 6). After their dive, both returned to
the Vessel. (See Pl.'s SMF ¶¶ 3-4;
Def.'s SMF ¶ 7; Pl.'s SMF Resp. ¶ 7).
Grosso, however, re-descended for another dive after
expressing his intent to retrieve a lobster. (See
Pl.'s SMF ¶ 5; Def.'s SMF ¶ 7). During
Grosso's second dive, Wranovics steered the Vessel away
from Grosso to pick up other divers. (See Pl.'s
SMF ¶ 6; Def.'s SMF ¶ 9; Am. Compl. ¶ 18;
Def.'s Answer ¶ 18). Upon the Vessel's return,
Grosso was found without his regulator and unresponsive,
approximately 15 feet below the surface, tangled in the dive
flag line. (See Pl.'s SMF ¶ 7; Def.'s
SMF ¶ 10; Pl.'s SMF Resp. ¶ 10; Am. Compl.
¶ 19; Def.'s Answer ¶ 19). Resuscitation
efforts were unsuccessful. (See Pl.'s SMF ¶
7; Am. Compl. ¶ 19; Def.'s Answer ¶ 19).
states a crew member, “[w]ithout checking or inquiring
as to the amount of air remaining in . . . Grosso's tank,
” granted Grosso permission to conduct his second dive.
(Def.'s SMF ¶ 8 (alterations added)). Plaintiff
denies this assertion. (See Pl.'s SMF Resp.
¶ 8). The representatives of Grosso's estate filed a
wrongful death action (the “Underlying
Litigation”) in Broward Circuit Court against Salt
‘N Blue, Wranovics, and Barkley, alleging they breached
their duty of care to Grosso by, among other actions,
abandoning the dive site and leaving him to dive alone
without a “dive buddy.” (Pl.'s SMF
¶¶ 8-11; Def.'s SMF ¶¶ 13-14).
is named as an insured under a Lloyd's-issued
Professional Liability Insurance Master Policy
(“Lloyd's Policy”) [ECF No. 94-5].
(See Pl.'s SMF ¶ 18; Def.'s SMF ¶
18). Lloyd's provided a defense to Barkley in the
Underlying Litigation pursuant to the Lloyd's Policy.
(See Pl.'s SMF ¶ 24; Def.'s SMF
¶¶ 23-24; Pl.'s SMF Resp. ¶ 24).
issued a Commercial Marine Insurance Policy (“Travelers
Policy”) [ECF No. 94-6] to Salt ‘N Blue,
effective November 11, 2013 until November 11, 2014.
(See Pl.'s SMF ¶¶ 27-28; Def.'s
SMF ¶ 15). Among those covered by the Travelers Policy
are “Additional Named Insured(s), ” defined as
“the Captain and designated crewmember(s).”
(Travelers Policy 6). Defendant asserts, and Travelers does
not dispute, Barkley is an “Additional Named
Insured” under the Policy. (See Def.'s SMF
¶ 20; Def.'s Mot., Ex. C, Letter from Peter Alesi,
AIC (Travelers) to Enzo Varalla (Salt ‘N Blue) [ECF No.
95-3] 6 (“Mr. Barkley is qualified as an
additional named insured under the Policy for this
Travelers Policy states Travelers “will pay sums that .
. . a covered person under this policy become[s] legally
obligated to pay as a result of the ownership, operation or
maintenance of the insured vessel because of . . . bodily
injury or loss of life.” (Travelers Policy 10
(alterations added)). But the Travelers Policy also includes
a Diveboat Limitation Endorsement, excluding from coverage
“[b]odily injury, loss of life, or illness of any
person while in the water or arising as a consequence of
being in the water.” (Id. 21 (alteration
September 26, 2016, counsel for Barkley in the Underlying
Litigation sent an email letter to counsel for Travelers
demanding “Travelers immediately provide a defense to
Mr. Barkley” because he is “entitled to defense
and indemnity under the [Travelers] policy.”
(Def.'s Mot., Ex. B, Letter from James Hurley to Michael
Conroy [ECF No. 95-2] 1-2 (alteration added); see
also Def.'s SMF ¶ 26; Pl.'s SMF Resp.
¶ 26). On October 5, 2016, Travelers conditionally
accepted the defense of Barkley while reserving its rights to
withdraw its defense based on any applicable Policy
exclusions. (See Letter from Alesi to Varalla 6-7;
Def.'s SMF ¶ 27; Pl.'s SMF Resp. ¶ 22). The
parties in the Underlying Litigation reached a settlement,
and the case was dismissed with prejudice on November 14,
2016. (See Order of Dismissal with Prejudice).
claims Travelers “never contributed toward costs and
expenses incurred in the defense of [Barkley] in the
[Underlying Litigation], nor did [Travelers] reimburse
[Lloyd's] for its pro rata share of defense fees and
costs incurred in the defense of [Barkley] in the [Underlying
Litigation].” (Def.'s SMF ¶ 28 (alterations
added)). Travelers “refused to participate in the
funding needed for settlement of the claims . . . on a pro
rata basis with [Lloyd's]” in the Underlying
Litigation. (Id. ¶ 30 (alterations added)).
Defendant requests the Court enter summary judgment requiring
Travelers to reimburse Lloyd's 50 percent of costs
incurred in the Underlying Litigation; attorney's fees
for the present action; and any other relief the Court deems
just and proper. (See Def.'s Mot. 20).
insists reimbursement is unwarranted because Grosso's
drowning death is not an event covered by the Travelers
Policy. (See Pl.'s Resp. 8-16). Travelers moves
for summary judgment, seeking a judicial declaration the
Travelers Policy did not require it to provide Barkley with a
defense in the Underlying Litigation. (See Pl.'s
Mot. 19). In its Motion, Travelers also requests the Court
require Lloyd's to reimburse Travelers for its defense of
Salt ‘N Blue in the Underlying Litigation (see
id.), because “[t]he Lloyd's Policy provided
coverage for [Salt ‘N Blue] as an Additional
Insured” (Pl.'s SMF ¶ 25 (alterations added)),
but the cost of Salt ‘N Blue's defense was
“incurred solely by Travelers” (Pl.'s Mot.
judgment is rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show
“there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a), (c). An issue of fact is
“material” if it might affect the outcome of the
case under the governing law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). It is
“genuine” if the evidence could lead a reasonable
jury to find for the non-moving party. See id.;
see also Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
summary judgment, the moving party bears the initial burden
of identifying “those portions of the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material
fact.” Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993) (alterations and internal
quotation marks omitted) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If there are any
factual issues, summary judgment must be denied and the case
proceeds to trial. See Whelan v. Royal Caribbean Cruises
Ltd., No. 1:12-CV-22481-UU, 2013 WL 5583970, at *2 (S.D.
Fla. Aug. 14, 2013) (citing Envtl. Def. Fund v.
Marsh, 651 F.2d 983, 991 (5th Cir. 1981)). The court
cannot weigh conflicting evidence. See Skop v. City of
Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007) (citation
omitted). And even when the facts are undisputed, “[i]f
reasonable minds might differ on the inferences arising from
undisputed facts, then the [c]ourt should deny summary
judgment.” Whelan, 2013 WL 5583970, at *2
(alterations added; citation omitted).
a case involving contract interpretation, summary judgment is
appropriate ‘when the agreement is totally unambiguous,
or when any ambiguity may be resolved by applying the rules
of construction to situations in which the parol evidence of
the parties' intentions is undisputed or
non-existent.'” Dew Seven, L.L.C. v. Big Lots
Stores, Inc., 354 F. App'x 415, 416 (11th Cir. 2009)
(per curiam) (quoting Land O'Sun Realty v. REWJB Gas
Invs., 685 So.2d 870, 872 n.3 (Fla. 3d DCA 1996)).