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Evanston Insurance Co. v. Boone

United States District Court, M.D. Florida, Tampa Division

August 9, 2019

EVANSTON INSURANCE COMPANY, Plaintiff,
v.
JACK BOONE, ET AL., Defendants.

          ORDER

          SUSAN C. BUCKLEW UNITED STATES DISTRICT JUDGE

         This cause comes before the Court on Plaintiff's Motion for Summary Judgment. (Doc. No. 71). Defendant Kyla Roberts opposes the motion. (Doc. No. 75). Plaintiff has filed a reply brief. (Doc. No. 78). As explained below, the motion is granted in part and denied in part.

         I. Standard of Review

         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 Court must draw all inferences from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor. See Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006)(citation omitted). The moving party bears the initial burden of showing the Court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. See id. (citation omitted). When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. See id. (citation omitted).

         II. Background

         On July 8, 2013, Namon Smith and Zachary Roberts were working on a cell tower. Namon Smith was not properly secured to the cell tower and fell and struck Zachary Roberts, which caused Zachary Roberts to fall over 200 feet to the ground below. Zachary Roberts died from his injuries.

         A. The Underlying State Court Action

         Zachary Roberts is survived by his wife, Kyla Roberts, and she is the personal representative of the Estate of Zachary Roberts. Defendant Kyla Roberts, as personal representative of the Estate of Zachary Roberts (hereinafter referred to as “the Estate”), filed suit in state court against Defendant Monarch Towers, Inc. (“Monarch”), Defendant Jack Boone (an executive officer and/or director of Monarch), Defendant Broadcast Tower Technologies, Inc. (“Broadcast”), and Defendant Southeast Personnel Leasing, Inc. (“SPL”).[1]

         In the state court action, the Estate asserted vicarious liability under respondeat superior and negligence claims against Boone, Monarch, Broadcast, and SPL based on the Estate's contention that Namon Smith and Zachary Roberts were the agents or employees of Boone and/or Monarch and/or Broadcast and/or SPL. (Doc. No. 1-1, ¶ 9). Specifically, in the vicarious liability under respondeat superior claims asserted in state court, the Estate alleged that Boone, Monarch, Broadcast, and/or SPL employed Namon Smith, and that Smith negligently failed to use reasonable care which caused him to fall and strike Zachary Roberts. In the negligence claims asserted in state court, the Estate alleged that Boone, Monarch, Broadcast, and SPL acted negligently and that their negligence led to Zachary Roberts' fall and death. The state court action is ongoing.

         B. The Commercial General Liability Policy

         Plaintiff Evanston Insurance Company (“Evanston”) issued a Commercial General Liability policy (“the Policy”) to Monarch that was in place at the time of the accident. Boone and Monarch sought coverage for the claims asserted against them in the state court action, and they requested that Evanston provide them with a defense and indemnification for the claims asserted by the Estate in the state court action.[2] Evanston is providing them with a defense in the state court action, pursuant to a reservation of rights.

         The Policy provides the following regarding coverage for bodily injuries:

[Evanston] will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” . . . to which this insurance applies. [Evanston] will have the right and duty to defend the insured against any “suit” seeking those damages. However, [Evanston] will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” . . . to which this insurance does not apply.

(Doc. No. 1-1, p. 37).

         The Combination General Endorsement provides the following exclusion from coverage:

This insurance does not apply to liability for “bodily injury” to . . . [a]n “employee” of any insured arising out of and in the course of employment or while performing duties related to the conduct of an insured's business. . . . [Employee] shall also mean any . . . co-employee, “leased worker”, casual worker, “temporary worker” . . . ...

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