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Travelers Property Casualty Co. of America v. Barkley

United States District Court, S.D. Florida

August 21, 2017




         THIS 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, [1] the record, and applicable law.

         I. BACKGROUND

         This is 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).[2]

         On July 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).[3]

         Grosso 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).

         Defendant 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).

         Barkley 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).

         Travelers 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[4] (“Mr. Barkley is qualified as an additional named insured under the Policy for this incident.”)).

         The 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 added)).

         On 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).

         Defendant 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).

         Travelers 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. 18).


         Summary 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).

         At 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).

         “In 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)).

         II ...

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