United States District Court, M.D. Florida, Tampa Division
RICHARD A. LAZZARA, UNITED STATES DISTRICT JUDGE
THE COURT is Plaintiff's Motion for Final
Summary Judgment, Statement of Undisputed Facts, affidavits,
depositions, and other submissions (Dkts. 91-95), Defendants
Sharicka A. Adams and Joelle W. Numan's Memorandum in
Opposition and their Statement of Disputed Facts (Dkts. 98
and 99), Defendants Sombreros, LLC, Ashland 2 Partners, LLC,
Michael Plechy and David Scalisi's Memorandum in
Opposition and their Statement of Disputed Facts (Dkts. 100
and 101), Defendants Cedric Lamarr Booth, Sr., Timeka
McCullough, Quinteria Cherise Crumedy, Felicia Yvette Brown,
and Cierra Latrell Jones' Memorandum in Opposition and
their Statement of Disputed Facts and other submissions (Dkt.
102-104), and Plaintiff's Reply (Dkt. 107).After careful
consideration of the motion, the submissions of the parties,
and the applicable law, the Court concludes the motion is due
to be granted as to both the duty to defend and indemnify.
as the commercial liability insurers of Defendants Sombreros,
LLC, Ashland 2 Partners, LLC, Michael Plechy, and David
Scalisi (the owners), seeks a declaration that it has no duty
to defend or indemnify with respect to an incident at The
Hall, a nightclub in Palmetto, Florida. David Scalisi was
present that night at the bar, as well as the sixteen other
named individual Defendants. Three of these patrons were shot
with a gun, and the others were trampled in the confusion
that ensued. All of the patrons have either filed actions in
state court or, if not, have filed pre-suit notices.
state-court action filed by Cedric Lamarr Booth, Sr., a
shooting victim, alleges that on July 1, 2016, “an
unknown patron of The Hall nightclub . . . fired gun shots
inside The Hall nightclub as patrons were exiting for the
night.” See docket 94-2, page 2, ¶¶
9-10. He alleges that when he attempted to leave The Hall, he
was shot by the unknown patron. See docket 94-2,
page 2, ¶ 11. Booth seeks damages for personal injuries
based on the negligence of the owner for undertaking various
duties to provide adequate protocols and training for
sufficient security and for breaching those duties by failing
to warn of the dangerous condition, failing to provide proper
lighting, and failing to hire, retain, and train enough
security personnel to provide a safe venue for patrons. Two
other patrons were shot that night, Novell Chestnut and Otis
Johnson, but they have not filed suit yet. See
docket 94-3, page 2, ¶ 7.
state-court complaints of Sharicka Adams and Joelle Numan,
Brittany McCullough, and Alfred Morgan seek damages for
personal injuries suffered at The Hall in the aftermath,
relying on basically the same theories of negligence as
Booth. The complaint filed by Sharicka Adams and Joelle Numan
alleges that “on or about July 2, 2016, gunshots were
fired inside the subject premises, The Hall, which resulted
in club patrons panicking and running around inside the
premises.” See docket 94-2, page 8, ¶ 5.
“[A] a result of the incident described in this
Complaint, [Adams and Numan were] knocked down and trampled
by other patrons, business invitees, and/or guests of The
Hall.” See docket 94-2, pages 10 & 11,
¶¶ 11 & 15). Brittany McCullough's
complaint alleges that on July 2, 2016, she “was
severely injured as a result of being knocked down and
trampled by club patrons who panicked after gun shots were
fired inside The Hall.” See docket 94-2, page
14, ¶ 8. Alfred Morgan's complaint simply alleges
that he “was trampled and sustained numerous serious
injuries” while at The Hall on July 1, 2016.
See docket 94-2, page 17, ¶ 6.
is providing the insureds a defense in the underlying actions
and the pre-suit notice matters subject to a reservation of
rights. See docket 25, ¶ 36. It now requests a
determination of no coverage, and therefore no duty to defend
or indemnify, under the operative commercial general
liability based on two policy exclusions: assault and battery
and firearms. The insureds and the patrons contest such a
finding and argue that the terms of both exclusions are
ambiguous. The insureds also contend there are disputed,
judgment is properly granted where there is no genuine
dispute regarding a material fact. Fed. R. Civ. P.
56(a). The court must review the record, and all of its
factual inferences, in the light most favorable to the
nonmoving party. See United States v. Diebold, Inc.,
369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
Summary judgment is a particularly appropriate vehicle to
determine insurance coverage because the interpretation of a
written contract is a question of law for the court. See
Technical Coating Applicators, Inc. v. U.S. Fid.
& Guar., Co., 157 F.3d 843 (11th Cir.
Cir. 1998); DEC Elec., Inc. v. Raphael Constr.
Corp., 558 So.2d 427, 428 (Fla. 1990).
in this diversity case, the substantive law of Florida, as
the forum state, applies. Sphinx Int'l, Inc. v.
Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 412
F.3d 1224, 1227 (11th Cir. 2005). A declaratory
judgment is an appropriate method for the court to determine
coverage issues, including the duty to defend or indemnify.
Higgins v. State Farm Fire & Cas. Co., 894 So.2d
5, 9 (Fla. 2004). A contract ambiguity is a question of law
to be decided by the court. Gulf Tampa Drydock Co. v.
Great Atl. Ins. Co., 757 F.2d 1172, 1174
(11th Cir. 1985) (citing Smith v. State Farm
Mut. Auto. Ins. Co., 231 So.2d 193, 194 (Fla. 1970)).
Florida law, the duty to defend is generally determined from
the allegations of the complaints of the underlying cases.
Addison Ins. Co. v. 4000 Island Boulevard Condo.
Ass'n, Inc., 2017 WL 6616690, at *6 (11th
Cir. Dec. 28, 2017) (unpublished) (citing Stephens v.
Mid-Continent Cas. Co., 749 F.3d 1318 (11th
Cir. 2014), and discussing Jones v. Fla. Ins. Guar.
Ass'n, Inc., 908 So.2d 435 (Fla. 2005) and
Higgins); Meridian Constr. & Dev., LLC v.
Admiral Ins. Co., 105 F.Supp.3d 1331, 1338 (M.D. Fla.
2013) (citing Wellcare of Fla., Inc. v. Am. Int'l
Specialty Lines Ins. Co., 16 So.3d 904, 906
(Fla.Dist.Ct.App. 2009), but noting exceptions may exist).
The complaint triggers the duty when its allegations assert
facts that could bring the injury within coverage. Attain
Specialty Ins. Co. v. Miami Drywall & Stucco, Inc.,
2012 WL 3043002, at *2 (S.D. Fla. Jul. 25, 2012) (citing
State Farm Fire & Cas. Co. v. Steinberg, 393
F.3d 1226, 1230 (11th Cir. 2004), which cites
Florida law). A duty to defend the entire suit arises even if
the complaint alleges facts “partially within and
partially outside the scope of coverage.”
Auto-Owners Ins. Co. v. Elite Homes, Inc., 676
F.App'x 951, 954 (11th Cir. 2017)
(unpublished) (citation omitted); Trailer Bridge, Inc. v.
Ill. Nat'l Ins. Co., 657 F.3d 1135, 1141-42
(11th Cir. 2011) (citation omitted). The duty to
defend is broader than the duty to indemnify because the duty
to indemnify is determined by the actual underlying facts as
opposed to the allegations of the complaint. Selective
Ins. Co. of the Southeast v. William P. White Racing Stables,
Inc., __ F.App'x__, 2017 WL 6368843, at *2
(11th Cir. 2017) (unpublished) (citation omitted);
RSUI Indemn. Co. v. Desai, 2014 WL 12621215, at *3
n.3 (M.D. Fla. 2014) (citing Jones, 908 So.2d at
the circumstances here, if Plaintiff is absolved of the duty
to defend, there is no duty to indemnify either.
See, e.g., RSUI Indemn. Co.,
(discussing considerations in determining whether to stay a
separate count seeking to declare duty to indemnify);
Tower Ins. Co. of N.Y. v. Lormejuste, 2012 WL
1986881, at *8 (N.D. Fla. 2012) (citing WellCare of Fla.,
Inc.). None of the parties contest that both
duties should be resolved at this time. Although the parties
disagree that material facts are in dispute, this Court will
examine whether those disputed facts are truly material in
view of the allegations of the complaint and the language of
the policy. The parties agree that a shooting took
place on July 2, 2016, at The Hall, and patrons were either
shot or injured. They do not agree whether the gun shots or
trampling was the proximate, legal cause of their injuries.
oppose the application of the two policy exclusions on the
basis that both are ambiguous. They also contend that there
are genuine issues of material fact including whether the
discharge of the firearm or an assault or battery was the
proximate cause of the injuries to the patrons and whether
the injury to the patrons was caused from trampling and/or
directly or indirectly from the discharge of the firearm.
Defendants argue that even if the firearm or assault and
battery provision applies to exclude coverage of some claims,
there should be coverage for the other non-related claims
alleged in their complaints. The patrons contend such
non-related claims include negligence in failing to properly
hire or train security, maintain the premises to avoid entry
of a gun, and provide a reasonably safe environment.