United States District Court, M.D. Florida, Tampa Division
C. BUCKLEW UNITED STATES DISTRICT JUDGE
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.
Standard of Review
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).
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.
The Underlying State Court Action
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”).
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.
The Commercial General Liability Policy
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. Evanston is providing them with a defense
in the state court action, pursuant to a reservation of
Policy provides the following regarding coverage for bodily
[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).
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” . . . ...