United States District Court, M.D. Florida, Jacksonville Division
Timothy J. Corrigan United States District Judge.
declaratory judgment action is before the Court on Defendants
Tzadik Acquisitions, LLC; Tzadik Management Group, LLC;
Tzadik Management Group 2, LLC; and Tzadik Properties,
LLC's Motion to Stay United Specialty Insurance
Company's Duty to Indemnify and Related Deadlines. (Doc.
29). Plaintiff United Specialty Insurance Company filed a
response in opposition. (Doc. 43).
October 14, 2016, Alfred Lance, III was shot and killed while
on the premises of King Trail Apartments in Jacksonville,
Florida. This case arises from an insurance claim related to
the subsequent wrongful death lawsuit, Willa Kimble, as
Personal Representative of the Estate of Alfred Lance, III,
v. Tzadik Acquisitions, LLC, et al., No.
16-2017-CA-06741, pending in the Circuit Court for the Fourth
Circuit in and for Duval County, Florida (“Underlying
Action”), in which Lance's estate seeks damages for
his wrongful death as a result of property owner/manager
Tzadik's alleged negligence.
Specialty issued a commercial general liability insurance
policy to Tzadik Acquisitions and Tzadik Management 2 for the
policy period of October 15, 2015 to October 15, 2016 with
limits of $1 million per occurrence and $2 million in the
aggregate (“United Specialty Policy”). (Doc. 1
¶ 4; Doc. 1-2). However, United Specialty alleges that
the Policy did not list the King Trail Apartments as an
insured premises, and that Defendants failed to timely notify
United Specialty of the pendency of the Underlying Action.
Thus, United Specialty seeks a declaration that it does not
owe a duty to defend or indemnify Defendants in the
Underlying Action, and that it does not owe a duty to
indemnify Defendants for any claims that were brought, or
could have been brought, in the Underlying
concede that United Specialty's duty to defend claims are
ripe because the duty to defend is limited to a comparison of
the underlying complaint and the terms of the insurance
policy. (Doc. 29 at 4). However, they ask the Court to stay
all determinations and deadlines regarding United
Specialty's duty to indemnify, arguing that the claim is
unripe given the pendency of the Underlying Action. United
Specialty disagrees, contending that the Court should simply
consider and resolve the duty to defend issue before
considering the duty to indemnify. (Doc. 43).
issues before the Court are well-trodden ground. Courts in
the Middle District of Florida have found that
“[b]ecause an insurer's duty to indemnify is
dependent on the outcome of a case, any declaration as to the
duty to indemnify is premature unless there has been a
resolution of the underlying claim.” Watermark
Constr., L.P. v. S.-Owners Ins. Co., No.
617CV1814ORL40TBS, 2018 WL 1305913, at *5 (M.D. Fla. Mar. 13,
2018) (citations omitted). Further, the Eleventh
Circuit cautions “against exercising jurisdiction over
declaratory judgment actions where the ‘apportionment
of insurance coverage may never arise due to the lack of a
judgment establishing the liability of the
insured.'” Id. (quoting Edwards v.
Sharkey, 747 F.2d 684, 686 (11th Cir. 1984) (per
curiam)). “Where a premature request for declaratory
relief regarding the duty to indemnify is joined to a ripe
request for declaratory relief regarding the duty to defend,
a well-accepted practice is to retain jurisdiction over the
latter request and stay, but not dismiss, the premature
request.” Hartford Fire Ins. Co. v. Weathertrol
Maint. Corp., No. 16-24509-CIV, 2017 WL 5643298, at *5
(S.D. Fla. Feb. 21, 2017).
Court has carefully considered the arguments in both
parties' briefs and will follow the course outlined in
Watermark. While, as Defendants point out, some
courts examining the same issue have denied similar motions
to stay, those courts still acknowledge the need to suspend
consideration of whether an insurer has a duty to indemnify
until the earlier of a final disposition of the underlying
lawsuit or a ruling that there is no duty to defend. See,
e.g., Mt. Hawley Ins. Co. v. Maitland Ctr.,
LLC, No. 18-CV-80452, 2018 WL 3634579, at *4 (S.D. Fla.
July 30, 2018) (denying motion to dismiss or stay, but noting
that the court will not consider the duty-to-indemnify issue
until the earlier of (a) final disposition of the Underlying
Lawsuits or (b) a ruling on the duty to defend); Safeco
Ins. Co. of Am. v. Weissman, No. CV 17-62032-CIV, 2018
WL 816827, at *2 (S.D. Fla. Feb. 9, 2018) (same). Here,
staying the parties' obligations regarding United
Specialty's duty to indemnify claim will not prejudice
either side. There has been no final determination of
Defendants' liability in the Underlying Action;
therefore, United Specialty's duty to indemnify
Defendants is not yet ripe for consideration, and a stay is
appropriate with respect to that issue. See Atain
Specialty Ins. Co. v. Sanchez, No. 8:17-CV-1600-T-23AEP,
2018 WL 1991937, at *3 (M.D. Fla. Apr. 27, 2018) (dismissing
without prejudice as unripe the duty to indemnify issue,
allowing case to proceed as to the duty to defend in the
underlying action); Woodruff & Sons, Inc. v. Cent.
Mut. Ins. Co., No. 8:12-CV-181-T-24-MAP, 2012 WL 695667,
at *2 (M.D. Fla. Mar. 5, 2012) (staying duty to indemnify
issue until there has been a determination that the plaintiff
has no duty to defend the state court action, or the state
court action has concluded, and allowing duty to defend issue
it is hereby
1. Defendants Tzadik Acquisitions, LLC; Tzadik Management
Group, LLC; Tzadik Management Group 2, LLC; and Tzadik
Properties, LLC's Motion to Stay United Specialty
Insurance Company's Duty to Indemnify and Related
Deadlines (Doc. 29) is GRANTED.
2. All determinations and deadlines regarding United
Specialty's duty to indemnify Defendants are
STAYED pending the outcome of the Underlying
3. The parties shall jointly notify the Court no
later than three weeks of the resolution of the
Underlying Action and its outcome, and shall propose a
schedule regarding how they wish to proceed on the duty to
indemnify issue, if appropriate.
4. No. later than August 30, 2019, the
parties shall jointly propose a briefing schedule and
procedure regarding resolution of the duty to defend issue.
The parties shall also discuss whether the Court should
address United Specialty's arguments regarding
Defendants' alleged failure to timely notify it of the