United States District Court, M.D. Florida, Tampa Division
LIBERTY MUTUAL FIRE INSURANCE COMPANY as subrogee of GATOR DELRAY, L.C. and GATOR DELRAY, L.C. f/u/b/o LIBERTY MUTUAL FIRE INSURANCE COMPANY, Plaintiff,
WAL-MART STORES EAST, LP and WAL-MART STORES, INC., Defendants.
S. MOODY, JR., UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court upon the following motions: (1)
Plaintiff's Motion for Summary Judgment (Doc. 19) and
Defendants' Response (Doc. 30); (2) Defendants' First
Motion for Summary Judgment (Doc. 24), Plaintiff's
Response (Doc. 29), and Defendants' Reply (Doc. 34); and
(3) Defendants' Second Motion for Summary Judgment (Doc.
28) and Plaintiff's Response (Doc. 31). Upon review, the
Court concludes that Plaintiff's motion should be granted
in part and Defendants' motions should be denied.
Delray, L.C. (“Gator”) owns property at 3001
South Federal Highway in Delray Beach, Florida. The property
is known as the South Delray Shopping Center. Effective
February 16, 2012, Gator and Wal-Mart Stores East, LP
(“Wal-Mart Stores East”) entered into a lease
agreement for one of the buildings in the shopping center.
Wal-Mart Stores, Inc. (“Wal-Mart”) guaranteed
Wal-Mart Stores East's performance of all conditions of
to Section 10 of the lease agreement, Gator and Wal-Mart
Stores East were both required to obtain liability insurance.
Wal-Mart Stores East agreed to purchase insurance or
self-insure in the amount of $3, 000, 000 to protect itself
and Gator from liability for “injury or damage to
persons or property and . . . damage upon and within the
Demised Premises.” (Doc. 1-4, p. 18-19.) Wal-Mart
Stores East further agreed to defend and indemnify Gator
“from and against any and all liability, which . . .
arise from or are in connection with the possession, use,
occupation, management, repair, maintenance or control of the
Premises, or any portion thereof by [Wal-Mart Stores East] or
its authorized agents, employees, contractors, sub-lessees or
any other party claiming by or through [Wal-Mart Stores
East].” (Id. at 19.) In return, Gator agreed
to obtain insurance covering “the Common Areas,
buildings (excluding the Demised Premises and any other
building insured by tenants thereof), appurtenances and other
improvements constituting the Shopping Center.”
(Id. at 20.)
lease agreement required Wal-Mart Stores East to make a
number of improvements to the Demised Premises. These
improvements included “roof repairs and/or
replacement.” (Id. at 11.) Thus, Wal-Mart
Stores East hired Bandes Construction Company to repair part
of the roof. On August 26, 2013, Bandes' superintendent,
Mark Callahan, fell through the roof and seriously injured
February 26, 2015, Callahan and his wife filed suit against
Gator and Wal-Mart based on the injuries he sustained from
the fall. They alleged that the defendants' negligence
and Gator's breach of its non-delegable duties as
property owner caused his injuries.
responded to the lawsuit. Due to an oversight by Gator's
office manager, Gator did not. The court entered a
clerk's default against Gator on April 13, 2015. Months
later, Gator's office manager realized her mistake. In
September 2015, she asked Liberty Mutual to defend and
indemnify Gator, but Liberty Mutual refused. There is a
dispute of fact as to whether she subsequently asked Wal-Mart
to defend or indemnify Gator. If she did, Wal-Mart did not
November 18, 2015, Gator moved to set aside the default. On
February 11, 2016, Liberty Mutual withdrew its disclaimer of
coverage and agreed to defend and indemnify Gator. Then, on
February 12, 2016, the court held a hearing regarding the
motion to vacate but deferred ruling on the matter.
February 23, 2016, the Callahans demanded that Liberty Mutual
tender its liability coverage limits of $1, 000, 000 within
30 days in exchange for a release of Gator. On March 11,
2016, Gator's counsel tendered the demand to Wal-Mart and
asked Wal-Mart to respond pursuant to its contractual
obligation to defend and indemnify Gator. On March 16, 2016,
Liberty Mutual's counsel asked the Callahans if they
would release both Gator and Wal-Mart in exchange for payment
of the $1, 000, 000 policy limit. The Callahans agreed. On
March 18, 2016, Liberty Mutual's counsel wrote to
Wal-Mart's counsel and asked if Wal-Mart would honor its
agreement to indemnify Gator. Wal-Mart replied to both Gator
and Liberty Mutual, explaining that it would not respond to
the Callahans' demand because it had no duty to defend or
indemnify Gator. Ultimately, Liberty Mutual tendered the $1,
000, 000 to the Callahans in exchange for a release of both
Gator and Wal-Mart.
Liberty Mutual filed this action, suing Wal-Mart and Wal-Mart
Stores East for breach of contract (Counts 1 and 2),
indemnity (Count 3), equitable subrogation (Count 4),
statutory contribution (Count 5), equitable contribution
(Count 6), and unjust enrichment (Count 7). Defendants
responded to the lawsuit by raising twenty-eight affirmative
defenses. The Parties now have pending motions for summary
for summary judgment should be granted only when the
pleadings, depositions, answers to interrogatories,
admissions, and affidavits show there is no genuine issue as
to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
existence of some factual disputes between the litigants will
not defeat an otherwise properly supported summary judgment
motion; “the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) (emphasis in original). The substantive law
applicable to the claimed causes of action will identify
which facts are material. Id. Throughout this
analysis, the court must examine the evidence in the light
most favorable to the nonmovant and draw all justifiable
inferences in its favor. Id. at 255.
party properly makes a summary judgment motion by
demonstrating the absence of a genuine issue of material
fact, the nonmoving party must go beyond the pleadings
through the use of affidavits, depositions, answers to
interrogatories, and admissions and designate specific facts
showing that there is a genuine issue for trial.
Celotex, 477 U.S. at 324. The evidence must be
significantly probative to support the claims.
Anderson, 477 U.S. at 248-49 (1986).
Court may not decide a genuine factual dispute at the summary
judgment stage. Fernandez v. Bankers Nat'l Life Ins.
Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f
factual issues are present, the Court must deny the motion
and proceed to trial.” Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.
1983). A dispute about a material fact is genuine and summary
judgment is inappropriate if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Anderson, 477 U.S. at 248; Hoffman v.
Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However,
there must exist a conflict in substantial evidence to pose a
jury question. Verbraeken v. Westinghouse Elec.
Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
move for summary judgment on all of seven claims, as well as
two of their affirmative defenses. Plaintiff, in turn, moves
for summary judgment on four of its claims and a number of
Defendants' defenses. The Court will analyze the claims
first and then the affirmative defenses.
1 - Breach of Lease's Self-Insurance Clause
Count 1, Liberty Mutual argues that Defendants breached the
lease's self-insurance clause, which required Defendants
to provide insurance to protect Gator and Wal-Mart Stores
East from “injury or damage to persons . . . upon and
within the Demised Premises.” (Doc. 1-4, p. 18-19.)
Liberty Mutual contends that Defendants breached this clause
by failing to defend and indemnify Gator in the
argue that the Court should grant summary judgment on Count 1
because Liberty Mutual has no standing to sue them for breach
of the lease agreement. More specifically, they argue that
Liberty Mutual cannot sue to enforce the lease because it was
not a party to, or a third-party beneficiary of, the lease.
are correct that Liberty Mutual is not a third-party
beneficiary of the lease. However, Liberty Mutual does not
need to be in order to sue Defendants for breach of contract
because Gator assigned Liberty Mutual that right. The Liberty
Mutual insurance policy has a provision called
“Transfer of Rights of Recovery Against Others to Us,
” which provides the following: “If the insured
has rights to recover all or part of any payment we have made
under this Coverage Part, those rights are transferred to
us.” (Doc. 2, p. 39.) Through this provision, Gator
assigned any rights of recovery it had to Liberty Mutual.
Since Gator would have the right to sue Defendants for breach
of the lease, Liberty Mutual does too, as Gator's
that the Court has determined that Liberty Mutual has
standing to sue Defendants for breach of the lease, the Court
will evaluate Liberty Mutual's argument that it should
grant summary judgment on Count 1. The Court will first
analyze Defendants' duty to defend and then their duty to
indemnify pursuant to the lease's self-insurance clause.