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Mid-Continent Casualty Co. v. JWN Construction, Inc.

United States District Court, S.D. Florida

February 8, 2018

JWN CONSTRUCTION, INC., an inactive Florida corporation; UNDERWRITERS AT LLOYD'S, LONDON a/s/o DR. MICHAEL FLAX, a foreign corporation, and MICHAEL D. FLAX, an individual, Defendants.



         This 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 Plaintiff's favor.

         I. BACKGROUND

         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.

         After 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 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).

         In 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.

         The 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.


         Before 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:


         1. Blackacre is owned by Movant. Exhibit B, ¶ 2.

         2. Blackacre is currently under contract for sale. ...

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