United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRlGAN United States.
case is about which insurance company is better at writing a
broad “other insurance” provision, one suitable
for all occasions, so that its coverage becomes excess and
the other insurer's primary. It is before the Court on
the parties' cross motions for summary judgment. (Docs.
32, 39). Defendant Northfield Insurance Company
(“Northfield”) moved for summary judgment (Doc.
32), Plaintiff Rockhill Insurance Company
(“Rockhill”) filed an amended Response (Doc. 42),
and Northfield replied (Doc. 45). Rockhill also moved for
summary judgment (Doc. 39), Northfield responded (Doc. 46),
Rockhill replied (Doc. 49), and Northfield filed a sur-reply
(Doc. 52). On October 13, 2017, the Court held a hearing on
the motions, the record of which is incorporated herein.
dispute between insurance companies concerns coverage
priority in relation to the settlement of a wrongful death
suit. On November 10, 2010, Leroy McDonald was shot and
killed in the Briar Oaks at Oakleaf Plantation townhome
community (“the Community”) (Doc. 39-1), which is
overseen by the Briar Oaks at Oakleaf Plantation Townhomes
Owners' Association, Inc. (“Briar Oaks”).
(Doc. 11). On June 1, 2007, First Coast Association
Management, LLC (“First Coast”) entered into a
contract with Briar Oaks to manage the Community. (Doc.
39-6). This contract was in effect on November 10, 2010.
Id. On November 10, 2010, Briar Oaks had insurance
coverage through Rockhill (Doc. 39-4), and First Coast had
insurance coverage through Northfield (Doc. 39-5).
2012, Latasha McDonald, as the personal representative of the
Estate of Leroy McDonald, filed a wrongful death action
against First Coast and Briar Oaks (“Underlying
Action”). (Doc. 11). In 2015, a jury trial returned a
verdict in favor of McDonald for $2, 658, 852, with First
Coast and Briar Oaks jointly and severally liable for 70% and
Briar Oaks solely liable for 30%. (Doc 39-2). Subsequently,
the parties agreed to a settlement, paying Leroy
McDonald's Estate $2, 790, 000, divided among three
insurers. (Doc. 39-3).
30, 2016, Rockhill filed its First Amended Complaint
(“Complaint”) (Doc. 11), seeking a declaratory
judgment determining the priority of coverage for the
Underlying Action, judgment to recover fees and costs
incurred in the Underlying Action,  and costs. (Doc. 11 at 4).
Northfield filed an answer and counterclaim seeking a
declaratory judgment, attorney's fees, and costs. (Docs.
The Rockhill Policy
issued businessowners' policy THB001324-01 to Briar Oaks,
providing both first party property coverage and business
liability coverage. (Doc. 39 at 3). Section I of the policy
explains the coverage for first party property, Section II
explains the coverage for business liability, and Section III
contains policy conditions common to Sections I and II. (Doc.
39 at 3). The policy also contains multiple amendments,
endorsements, exclusions, and limitations in separate forms.
(Doc. 39-4). The coverage provides up to $1 million per
occurrence as part of its liability and medical expense
limit. (Doc. 39-4 at 4). First Coast is an omnibus insured
under the policy. (Doc. 39-4 at 56). Section III of the
policy contains an “other insurance” provision,
making the coverage excess over other insurance in certain
situations. (Doc. 39-4 at 63).
The Northfield Policy
issued First Coast a commercial policy numbered WS023188 that
contains a liability limit of $1 million per occurrence.
(Doc. 32 at 7). First Coast is the sole named insured under
the Northfield policy, and the parties agree that Briar Oaks
is not insured under that policy. (See Doc. 39 at
6). The Northfield policy also contains an “other
insurance” provision, a combination endorsement to the
“other insurance” provision, and a second
endorsement. The “other insurance” provision, as
modified by the combination endorsement, provides that the
policy is excess over other valid and collectible insurance
in certain situations. This combination endorsement further
states that if excess, Northfield has no duty to defend the
insured in any suit if another insurer has such a duty, and
that Northfield will only pay the amount that exceeds the
other insurance coverage and deductibles. (Doc. 39-5 at 28,
39-40). The second endorsement makes the coverage excess when
the liability arises from First Coast's activities as a
STANDARD OF REVIEW
review of cross motions for summary judgment, “the
Court must determine whether either party deserves judgment
as a matter of law on the undisputed facts.”
T-Mobile S. LLC v. City of Jacksonville, 564
F.Supp.2d 1337, 1340 (M.D. Fla. 2008). “When the only
question a court must decide is a question of law, summary
judgment may be granted.” Saregama India Ltd. v.
Mosley, 635 F.3d 1284, 1290 (11th Cir. 2011). Insurance
contract interpretation is a matter of law properly decided
on summary judgment. LaMadrid v. Nat'l Union Fire
Ins. Co. of Pittsburgh, Pa., 567 F. App'x 695, 700
(11th Cir. 2014).
action is appropriately brought under 28 U.S.C. §
1332. Both parties seek declaratory relief
pursuant to 28 U.S.C. §§ 2201 and 2202. When the
Complaint and Answer and Counterclaims were filed, the
Underlying Action had not yet settled. However, on January
11, 2017, the parties settled the Underlying Action. At the
October 13, 2017 hearing, the Court, citing Housing
Enterprise Insurance Co. v. AMTRUST Insurance Co., 212
F.Supp.3d 1330, 1338 (N.D.Ga. 2016), expressed concern that
it may not have jurisdiction to provide declaratory
relief. The parties, at the request of the Court,
submitted a joint brief responding to the Court's
concerns. (Doc. 56).
their Joint Brief on Jurisdiction and Notice Regarding
Settlement, the parties provide two reasons why this Court
has jurisdiction. (Doc. 56). First, the settlement agreement
did not destroy jurisdiction to provide declaratory relief
because the settlement reserves the parties' rights to
maintain this action. (Doc. 56 at 1-5). The second reason is
that the complaint could be liberally construed to include a
claim for equitable contribution over which the Court
maintains jurisdiction. (Doc. 56 at 5-6). Although the
Complaint was unartfully drafted- containing no counts, and
titled “Plaintiff's Amended Complaint for
Declaratory Relief”-the “wherefore” clause
contains several requests for relief, at least one of which
can be construed as an equitable contribution claim. (Doc. 11
at 4). As the Court agrees that the Complaint could be
interpreted to include a claim for equitable contribution and
that the parties have a concrete dispute regarding coverage,
it retains jurisdiction.
Florida Law Governing the Interpretation of
interprets insuring or coverage clauses in the broadest
possible manner to provide the greatest extent of coverage.
Keenan Hopkins Schmidt & Stowell Contractors, Inc. v.
Cont'l Cas. Co., 653 F.Supp.2d 1255, 1263 (M.D. Fla.
2009). Courts view the policy “as a whole and give
every provision its full meaning and operative effect.”
Trailer Bridge, Inc. v. Ill. Nat. Ins. Co., 657 F.3d
1135, 1141 (11th Cir. 2011) (quotations omitted). The
policies are interpreted according to their plain meaning,
but if ambiguities exist they are construed to favor
coverage. Id. Policy language is ambiguous when it
is susceptible to multiple reasonable interpretations.
Pac. Emp'rs Ins. Co. v. Wausau Bus. Ins. Co.,
508 F.Supp.2d 1167, 1175 (M.D. Fla. 2007). Undefined words or
phrases should be given their common everyday meaning.
Id. “Although exclusionary clauses cannot be
relied upon to create coverage, principles governing the
construction of insurance contracts dictate that when
construing an insurance policy to determine coverage the
pertinent provisions should be read in pari
materia.” Intervest Const. of Jax, Inc. v.
Gen. Fid. Ins. Co., 133 So.3d 494, 498 (Fla. 2014).
The “Other Insurance” Provisions
dispute concerns the interpretation of “other
insurance” provisions in the Rockhill and Northfield
policies, both of which cover First Coast. Rockhill alleges
that both insurance policies are co-primary because they each
contain “other insurance” provisions that attempt
to make the policy excess to any other coverage to which the
insured is entitled. (Doc. 39 at 9). Northfield alleges that
Rockhill's “other insurance” provision does
not apply and that Northfield's policy is excess over
Rockhill's policy. (Doc. 32 at 9).
Florida, “where two or more policies that apparently
cover the same loss both contain excess ‘other
insurance' provisions, the clauses are deemed
‘mutually repugnant.'” Keenan, 653
F.Supp.2d at 1263. Florida does not recognize superiority of
one excess “other insurance” provision over
another. Certain Underwriters at Lloyds, London
Subscribing to Policy No. SA 10092-11581 v. Waveblast
Watersports, Inc., 80 F.Supp.3d 1311, 1320 (S.D. Fla.
2015). When the excess “other insurance”
provisions cancel each other out, each insurer is liable for
a pro rata share in accordance with their policy coverage
limits. Id. at 163-64. Thus, the Court must consider
whether the “other insurance” provisions in both
the Rockhill and Northfield policies apply to the Underlying
Northfield's “other insurance” provision
makes its coverage excess.
Northfield policy's “other insurance”
provisions apply to First Coast vis-a-vis the Underlying
Action. (Doc. 32 at 9; Doc. 39 at 13). Northfield's
“other insurance” provision, as modified by the
combination endorsement, states:
If other valid and collectible other insurance is available
to the insured for a loss we cover under Coverages A or B of
this Coverage Part, our obligations are limited as ...