United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE.
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.
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.
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”). 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
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
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.
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).
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”).
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 ...