United States District Court, S.D. Florida
ORDER GRANTING PLAINTIFF'S MOTION FOR FINAL
L. ROSENBERG, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion for
Final Summary Judgment [DE 92]. The Motion has been fully
briefed. For the reasons set forth below, the Motion is
granted and final summary judgment is entered in
January of 2008, Defendant Michael Flax wanted to construct a
residential home (the “Property”). Flax wanted to
use an entity that is not a party to this case, Mager
Construction (“Mager”), to build his home. Mager
was not an approved builder for the lender that Flax wanted
to use to finance the construction. Defendant JWN, however,
was an approved builder. Flax therefore entered into an
agreement with JWN wherein JWN would act as the general
contractor for the construction of his home, and JWN entered
into a separate agreement with Mager for Mager to undertake
the actual construction project.
construction was complete, in 2011, Flax discovered water
intrusion and other damage at his Property. Flax filed suit
in Florida state court and one of the defendants in that suit
is JWN. JWN had a general commercial liability insurance
policy with Plaintiff. Plaintiff filed the instant suit to
determine whether it owes a duty to indemnify and defend JWN.
SUMMARY JUDGMENT STANDARD
judgment is appropriate if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The existence of a factual dispute is not
by itself sufficient grounds to defeat a motion for summary
judgment; rather, “the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). A dispute is genuine if “a reasonable
trier of fact could return judgment for the non-moving
party.” Miccosukee Tribe of Indians of Fla. v.
United States, 516 F.3d 1235, 1243 (11th Cir. 2008)
(citing Anderson, 477 U.S. at 247-48). A fact is
material if “it would affect the outcome of the suit
under the governing law.” Id. (citing
Anderson, 477 U.S. at 247-48).
deciding a summary judgment motion, the Court views the facts
in the light most favorable to the non-moving party and draws
all reasonable inferences in that party's favor. See
Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).
The Court does not weigh conflicting evidence. See Skop
v. Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). Thus,
upon discovering a genuine dispute of material fact, the
Court must deny summary judgment. See id.
moving party bears the initial burden of showing the absence
of a genuine dispute of material fact. See Shiver v.
Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the
moving party satisfies this burden, “the nonmoving
party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.'”
Ray v. Equifax Info. Servs., LLC, 327 F. App'x
819, 825 (11th Cir. 2009) (quoting Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986)). Instead, “[t]he non-moving party must make
a sufficient showing on each essential element of the case
for which he has the burden of proof.” Id.
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)). Accordingly, the non-moving party must produce
evidence, going beyond the pleadings, to show that a
reasonable jury could find in favor of that party. See
Shiver, 549 F.3d at 1343.
THE PARTIES' STATEMENTS OF MATERIAL FACTS
the Court addresses the legal arguments in Plaintiff's
Motion for Summary Judgment, the Court first addresses the
parties' statements of material facts submitted in
connection with the Motion for Summary Judgment. On March 31,
2017, the Court entered a detailed order that contained
requirements for citations to the record on summary judgment.
See DE 6. Plaintiff complied with the Court's
requirements. Defendants did not. For example, in the
Court's order, the Court required a respondent to
clearly specify whether a fact was disputed and, if
so, to set forth the evidentiary basis for the dispute. The
Court provided a visual example:
ANT'S STATEMENT OF MATERIAL FACTS
Blackacre is owned by Movant. Exhibit B, ¶ 2.
Blackacre is currently under contract for sale. ...