United States District Court, S.D. Florida
EFRAIN ALAMO-CRUZ and MARIA ALAMO-CRUZ, as assignees of ROBIN A. CROCE, Plaintiffs,
EVANSTON INSURANCE COMPANY F/K/A ALTERRA EXCESS & SURPLUS INSURANCE COMPANY, Defendant.
ORDER ON DEFENDANT'S MOTION FOR LEAVE TO AMEND
ITS AFFIRMATIVE DEFENSES
G. TORRES UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Evanston Insurance Company
F/K/A Alterra Excess & Surplus Insurance Company's
(“Defendant”) motion for leave to amend its
affirmative defenses to Efrain Alamo-Cruz's (“Mr.
Cruz”) and Maria Alamo-Cruz's (“Mrs.
Cruz”) (collectively, “Plaintiffs”) second
amended complaint. [D.E. 87]. Plaintiffs responded to
Defendant's motion on July 15, 2019 [D.E. 98] to which
Defendant replied on July 22, 2019. [D.E. 103]. Therefore,
Defendant's motion is now ripe for disposition. After
careful consideration of the motion, response, reply,
relevant authority, and for the reasons discussed below,
Defendant's motion is GRANTED.
filed this action on April 5, 2017 [D.E. 1] seeking
declaratory relief in count 1, breach of contract in count 2,
and common law bad faith in count 3 because of
Defendant's denial of insurance coverage for the claims
Plaintiffs asserted in a state court action against
Affordable Treemen, Inc. (“Affordable Treemen”),
and its president Robin A. Croce (“Ms. Croce”).
This action relates back to an incident that occurred on June
1, 2011 when Mr. Cruz was performing tree trimming services
for Affordable Treemen. On that date, an electric saw came
loose and/or malfunctioned, cutting Mr. Cruz's harness
and causing him to fall 30 feet to the ground. [D.E. 20-1].
Mr. Cruz suffered severe and permanent injuries as a result
of the fall.
accident was reported to Defendant which denied insurance
coverage for Mr. Cruz's claim against Affordable Treemen
on August 29, 2012 on the basis that the applicable insurance
policy (the “Policy”) excludes any recovery for
This insurance does not apply to ‘bodily injury',
‘personal and advertising injury', or
‘medical payments' to any independent contractor,
subcontractor, casual laborer or volunteer worker, or to any
employee of any independent contractor, subcontractor, while
performing work for you.
[D.E. 20-2] (the “Independent Contractors
Policy was issued to Affordable Treemen for the period of May
11, 2011 through May 11, 2012 and has an aggregate limit of
liability of $1, 000, 000. [D.E. 20-2]. Section I of the
Policy provides, in relevant part, the following:
a. We will pay those sums that the insured becomes legally
obligated to pay as damages because of ‘bodily
injury' or ‘property damage' to which this
insurance applies. We will have the right and duty to defend
the insured against any “suit” seeking those
damages. However, we will have no duty to defend the insured
against any ‘suit' seeking damages for
‘bodily injury' or ‘property damage' to
which this insurance does not apply . . . .
Id. Section II of the Policy, under the section
entitled “Who Is An Insured?” states, in
pertinent part, that “[i]f you are designated in the
Declarations as . . . [a]n organization other than a
partnership, joint venture or limited liability company, you
are an insured. Your ‘Executive officers' and
directors are insureds, but only with respect to their duties
as your officers or directors.” Id.
Evanston denied insurance coverage, Plaintiffs filed suit
against Affordable Treemen, but that action was later
dismissed without prejudice following a notice of dismissal
that Plaintiffs filed on February 24, 2014. On December 8,
2014, Plaintiffs sent a settlement demand to Evanston
requesting $1 million dollars to settle the claims against
Ms. Croce and Affordable Treemen. Evanston denied
Plaintiffs' demand on December 24, 2014 and disclaimed
coverage under the Independent Contractors Exclusion.
Plaintiffs filed suit against Affordable Treemen and Ms.
Croce on January 20, 2015 in the Circuit Court of the
Seventeenth Judicial Circuit in and for Broward County,
Florida. [D.E. 20-1]. The state complaint included claims for
negligence against Affordable Treemen in Count 1 and
negligence against Ms. Croce in Count 2. Plaintiffs alleged
that Ms. Croce was the President of Affordable Treeman and
that she breached her duties and responsibilities owed to Mr.
state complaint also alleged that Mr. Cruz's relationship
with Affordable Treemen was that of an independent
contractor. [D.E. 20-1] (“Mr. Alamo-Cruz's
relationship with [Affordable Treemen] was that of an
independent contractor.”). Evanston refused to defend