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Starstone National Insurance Co. v. Polynesian Inn, LLC

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

August 26, 2019

POLYNESIAN INN, LLC, ANDREW JAMES BICKFORD and JANE DOE as personal representative of the estate of Zackery Ryan Ganoe, Defendants.



         This matter comes before the Court on the Motion for Summary Judgment (Doc. 80) filed by Defendant Polynesian Inn, LLC (henceforth, “Polynesian”) and the Motion for Summary Judgment (Doc. 81) filed by the Plaintiff, Starstone National Insurance Company (“Starstone”), as well as the responses in opposition (Docs. 92, 93) and replies (Docs. 98, 100) thereto.

         I. Background

         The following facts are undisputed. Polynesian operates a hotel in Kissimmee. In April 2017, Zackery Ryan Ganoe (“Ganoe”) and Defendant Andrew Bickford (“Bickford”) were guests at that hotel. While there, they were attacked by a third party who murdered Ganoe and attempted to murder Bickford. Subsequently, Bickford made a claim for damages against Polynesian, alleging that it failed to provide adequate security.[1]

         At the time of the attack, Polynesian had two insurance policies: a Commercial General Liability (“CGL”) policy issued by Northfield Insurance Company (the “Northfield Policy”) and an Excess Liability Policy issued by Starstone (the “Starstone Policy”).[2] Generally, the Northfield Policy provides $1 million of liability coverage per occurrence, subject to a $2 million aggregate limit. However, as discussed in more detail below, the Northfield Policy only provides $25, 000 in coverage for a claim resulting from an assault or battery (henceforth, an “assault claim”), subject to a $50, 000 aggregate limit.

         The Starstone Policy is a “following form” policy, meaning that, with certain exceptions, it follows the definitions, terms, conditions, limitations, and exclusions of the followed policy - in this case, the Northfield Policy - and does not pay out until the limits of the followed policy have been exhausted. But the Starstone Policy also states that it provides no coverage where the coverage in the followed policy is subject to a “sublimit of liability”.

         Polynesian and Starstone do not dispute that, for purposes of the Northfield Policy, Bickford's claim is subject to the $25, 000 limit for assault claims. In their dueling motions for summary judgment, however, those parties disagree as to what this means for purposes of the Starstone Policy. Starstone contends that the $25, 000 limit for assault claims is a “sublimit of liability, ” and therefore its policy does not provide coverage for assault claims - and, more particularly, for the claim arising from the assault on Bickford. Polynesian contends that the lower assault and battery limit is a standalone limit, not a sublimit, and therefore the Starstone Policy provides coverage for any assault claims exceeding the $25, 000 in coverage provided by the Northfield Policy.

         II. Legal Standard

         A party is entitled to summary judgment when the party can show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). Which facts are material depends on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In determining whether the moving party has satisfied its burden, the court considers all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. The Court is not, however, required to accept all of the non-movant's factual characterizations and legal arguments. Beal v. Paramount Pictures Corp., 20 F.3d 454, 458-59 (11th Cir 1994).

         When a party moving for summary judgment points out an absence of evidence on a dispositive issue for which the non-moving party bears the burden of proof at trial, the nonmoving party must “go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. Thereafter, summary judgment is mandated against the nonmoving party who fails to make a showing sufficient to establish a genuine issue of fact for trial. Id. The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“conclusory allegations without specific supporting facts have no probative value”).

         III. Analysis

         As touched on above, the Starstone Policy is a following form excess liability policy. (Doc. 80-1 at 95). It has a $3 million limit of liability per occurrence. (Doc. 80-1 at 95). Section I of the Starstone Policy, titled “Coverage, ” provides in pertinent that

A. We will pay on behalf of the Insured the sums in excess of the Total Limits of Underlying Policies shown in Item 6. of the Declarations that the Insured becomes legally obligated to pay as damages.
B. This Policy applies only to damages covered by the Followed Policy as shown in Item 7. of the Declarations. Except as otherwise provided by this Policy, the coverage follows the definitions, terms, conditions, limitations and exclusions of the ...

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