United States District Court for the Southern District of Florida

August 22, 2022, Decided; August 22, 2022, Entered on Docket

CASE NO. 20-cv-24134-WILLIAMS/MCALILEY

Reporter

2022 U.S. Dist. LEXIS 150255 *; 2022 WL 4292456

TRISURA SPECIALTY INSURANCE COMPANY, Plaintiff, v. BLUE HORSE TRUCKING CORPORATION, NELSON BETANCOURT and JUAN GABRIEL REYES SANCHEZ, Defendants.

Subsequent History: Adopted by, Motion granted by, Costs and fees proceeding at Trisura Specialty Ins. Co. v. Blue Horse Trucking Corp., 2022 U.S. Dist. LEXIS 167824 (S.D. Fla., Sept. 16, 2022)

Prior History: Trisura Specialty Ins. Co. v. Blue Horse Trucking Corp., 2021 U.S. Dist. LEXIS 92551, 2021 WL 4341912 (S.D. Fla., May 13, 2021)

Core Terms

insured, attorney’s fees, amended complaint, settlement, parties, lawsuit, summary judgment motion, duty to defend, RECOMMENDATION, moot, confession of judgment, Entitlement, allegations, declaratory, coverage

Counsel:  [*1] For TRISURA SPECIALTY INSURANCE COMPANY, Plaintiff: Alexandra Valdes, Cole, Scott & Kissane, P.A., Miami, FL.

For BLUE HORSE TRUCKING CORP., Defendant: Nelson Tomas Pena, LEAD ATTORNEY, The Pena Law Firm PA, Miami Lakes, FL.

For NELSON BETANCOURT, Defendant: Scott Jay Feder, LEAD ATTORNEY, Coral Gables, FL.

For JUAN GABRIEL REYES SANCHEZ, Defendant: Marc R. Ginsberg, LEAD ATTORNEY, Mandina & Ginsberg, Miami Lakes, FL.

Judges: CHRIS MCALILEY, UNITED STATES MAGISTRATE JUDGE.

Opinion by: CHRIS MCALILEY

Opinion

REPORT AND RECOMMENDATION ON JOINT MOTION TO DETERMINE ENTITLEMENT TO ATTORNEY’S FEES

Defendants, Nelson Betancourt (“Betancourt”) and Blue Horse Tucking Corp. (“Blue Horse”), filed a Joint Motion to Determine Entitlement to Attorney’s Fees (the “Motion”), (ECF No. 84). Plaintiff, Trisura Specialty Insurance Company (“Trisura”), filed a response memorandum, (ECF No. 85), and Betancourt and Blue Horse each filed a reply memorandum. (ECF Nos. 86, 88). For the reasons that follow, I recommend that the Court grant the Motion.

I. BACKGROUND

After nearly two years of litigation before this Court, and in a related action filed in State Court, the State Court action has concluded, and two issues remain for this Court to decide: [*2]  are Defendants entitled to recover their reasonable attorneys’ fees from Plaintiff (and if they are, what amount) and should this Court enter a final judgment for Defendants, or simply dismiss the action as moot. See (ECF No. 106 at 2). Defendants’ Motion raises the first question, and the Honorable Kathleen M. Williams has referred that Motion to me. (ECF No. 105). In the course of reviewing the merits of that Motion, I encountered information that may assist the Court in deciding whether to enter a final judgment for Defendants, and I include that here.

On July 22, 2020, a tractor-trailer driven by Defendant Betancourt had a single-vehicle accident, that caused Defendant Juan Gabriel Reyes Sanchez (“Sanchez”), who was a passenger in the truck, to be seriously injured. Defendant Blue Horse owned the tractor-trailer and authorized Betancourt and Sanchez to operate it together. Sanchez sued Blue Horse and Betancourt in State Court. Blue Horse’s automobile liability insurer, Trisura, provided a defense to the defendants in the State Court action, under a reservation of rights. Trisura also filed this declaratory judgment action against all Defendants, asking this Court to declare that [*3]  the policy Trisura issued to Blue Horse did not obligate it to defend Betancourt and Blue Horse, or indemnify them for any claims in the State Court action. See (ECF No. 1).

The State Court lawsuit was dismissed in March 2022 when the parties settled the dispute. Trisura paid the full amount of the $1,000,000 liability insurance policy in settlement of that action. (ECF No. 107 at 2 ¶ 3).

Sanchez’s State Court Complaint had four claims: three against Blue Horse, for (i) vicarious liability, (ii) failure to inspect and maintain the vehicle and (iii) failure to train and evaluate Betancourt, and one against Betancourt for negligence. (ECF No. 1-2). The vicarious liability count alleged that Blue Horse is responsible for Sanchez’s injuries because Blue Horse owned the vehicle and gave consent to Betancourt to operate it. (Id.). Sanchez did not claim that Blue Horse is liable because Betancourt was Blue Horse’s employee, and he did not assert any factual allegations to describe the employment relationship between him, Betancourt, and Blue Horse. (Id.).

The commercial auto liability policy that Trisura issued to Blue Horse has numerous exclusions. (ECF No. 1-1). As relevant here, the policy [*4]  excludes coverage for an employee’s bodily injury claims against an employer and fellow employee. (Id.). This action turned on the applicability of that exclusion.

On November 4, 2021, Sanchez amended his State Court Complaint to allege that Sanchez and Betancourt were independent contractors, not employees of Blue Horse. (ECF No. 53-1 at 5-9).

Shortly before the amendment, the parties in this case filed motions for summary judgment. (ECF Nos. 53, 55, 59). The day after amendment, with the consent of Betancourt and Blue Horse, Sanchez asked this Court to deny the motions for summary judgment without prejudice and to order the parties to file revised summary judgment motions. (ECF No. 62). Sanchez claimed that the newly alleged facts in the Amended Complaint could bear upon Trisura’s duty to defend, and he cited caselaw for the proposition that the most recent (amended) pleading in the underlying action determines the duty to defend. (Id. at 2-3) (citing Addison Ins. Co. v. 4000 Island Blvd. Condo Ass’n, 263 F. Supp. 3d 1266, 1269 (S.D. Fla. 2016)).

Trisura opposed that motion. (ECF No. 64). It argued that the parties need not amend their motions for summary judgment because Trisura “does not believe the [new] allegations materially change the analysis of Trisura’s duty to defend [*5]  (or lack thereof).” (Id. at 3 ¶ 10). Trisura also told the Court that “the allegations contained in the amended complaint are not materially different from those contained in the previous complaint for purposes of the Court’s analysis regarding the duty to defend”. (Id. at 4 ¶ 11). Trisura also noted that the Amended Complaint was filed with this Court and thus was available for the Court’s review. (Id. at 4 ¶ 10).

The Court did not immediately rule on the motion. In its briefing on summary judgment, Trisura maintained that under the original and amended Complaints, it has no duty to defend Betancourt and Blue Horse, because at the time of the incident, Sanchez and Betancourt were employees of Blue Horse. (ECF Nos. 65, 78).

On January 7, 2022, while the summary judgment motions were pending, the parties to the State Court lawsuit settled that action, (ECF No. 83), and Trisura paid Sanchez the limits of the insurance policy. (ECF No. 107 at 2 ¶ 3). The parties agree that the settlement moots this action, (id.), and they filed a joint stipulation of dismissal that asks the Court to retain jurisdiction to determine Defendants Betancourt’s and Blue Horse’s requests for attorneys’ fees, and [*6]  whether this Court should enter a final judgment. (Id. at 2 ¶ 4).

The Motion now before the Court asks it to find that the settlement of the underlying action is a confession of judgment that entitles Betancourt and Blue Horse to an award of attorneys’ fees from Trisura. (ECF No. 84 at 3). Trisura opposes the Motion on several grounds. (ECF No. 85). As set forth below, I conclude that Betancourt and Blue Horse are entitled to an award of reasonable attorneys’ fees.

II. STANDARD

Betancourt and Blue Horse’s Motion relies on § 627.428(1), Florida Statutes. It states, in pertinent part:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court … shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

Fla. Stat. § 627.428(1).

“The purpose of this statute is ‘to discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney’s fees when they are [*7]  compelled to defend or sue to enforce their insurance contracts.'” State Farm Mut. Auto. Ins. Co. v. Coker, 505 F. App’x 824, 826 (11th Cir. 2013) (quoting Ins. Co. of N. Am. v. Lexow, 602 So.2d 528, 531 (Fla. 1992)).

Florida law permits an award of attorneys’ fees under this statute when “the insured and insurer settle an action.” Canal Ins. Co. v. SP Transport, Inc., 272 F. App’x 825, 827 (11th Cir. 2008) (citing Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217, 218 (Fla. 1983)). In Wollard, the Florida Supreme Court explained that “[w]hen the insurance company has agreed to settle a disputed case, it has, in effect, declined to defend its position in the pending suit. Thus, the payment of the claim is, indeed, the functional equivalent of a confession of judgment or verdict in favor of the insured” such that the insured is entitled to attorneys’ fees under § 627.428. Wollard, 439 So.2d at 218. The rule also applies when “an insurer settles a claim against the insured and that settlement moots a related action filed by the insurer for declaratory relief.” Canal, 272 F. App’x at 826.

Trisura argues that the Court cannot award Defendants their fees because “there is no final judgment”. (ECF No. 85 at 7). I reject this argument and conclude that the Court need not enter a judgment against Plaintiff, for Betancourt and Blue Horse to recover their attorneys’ fees.¹

III. ANALYSIS

Trisura opposes the Motion on three grounds. First, Trisura claims that Betancourt [*8]  and Blue Horse cannot obtain their attorneys’ fees because the settlement in the underlying State Court lawsuit rendered this action moot, and this divests this Court of jurisdiction. (ECF No. 85 at 3-7). Trisura is correct that this action is now moot (and Betancourt and Blue Horse agree). However, this does not mean the Court lacks jurisdiction to enter an award of attorneys’ fees. To the contrary, courts must still address an award of fees under § 627.428. See Canal Ins. Co., 272 F. App’x at 826 (“After the settlement, the district court dismissed the declaratory judgment action as moot, and the district court denied the motion by SP Transport for attorney’s fees. Because Florida law entitles an insured to an award of fees after an insurer settles a claim against the insured and that settlement moots a related action filed by the insurer for declaratory relief, we reverse and remand.”); see also Atain Specialty Ins. Co. v. Henry’s Carpet & Interiors, Inc., 564 F. Supp. 3d 1265, 1271 (S.D. Fla. 2021) (“Here, by contrast, we dismissed the whole case … which means that there’s nothing left to litigate in this lawsuit. And, in scenarios like ours, courts generally find that the question of fees and costs is ripe.”).

Second, Trisura argues that its settlement of the State Court lawsuit is not a confession of judgment. (ECF No. 85 [*9]  at 7-10). Trisura stresses that it relied on the allegations in the Amended Complaint when it settled the state action, while its declaratory judgment action rests on Sanchez’s initial Complaint. It states that it “properly denied coverage based on an initial complaint, and then chose to settle based on a later amended complaint”. (Id. at 9). Trisura thus argues that the settlement “does not have the effect of Trisura confessing judgment as to the initial complaint”. (Id. at 9-10).

The cases Trisura cites for support are inapposite,² and its argument is disingenuous. In its response to the Motion, Trisura suggests that the Amended Complaint caused it to change its position regarding whether it had a duty to defend. (Id. at 8-10). Yet when the parties litigated motions for summary judgment, Trisura argued that the changes in the Amended Complaint were not important to the question of coverage. It stated that the parties need not re-brief their summary judgment motions to address the Amended Complaint because “the allegations contained in the amended complaint are not materially different from those contained in the previous complaint for purposes of the Court’s analysis regarding the [*10]  duty to defend (or lack thereof).” (ECF No. 64 at 4 ¶ 11). It maintained this position in its subsequent summary judgment filings. In its response to Defendants’ motions for summary judgment, Trisura wrote: “Because the facts alleged in the Complaints in the Underlying Lawsuit trigger the Policy’s Employee Exclusions, Trisura has no duty to defend the Underlying Lawsuit ….” (ECF No. 65 at 4) (emphasis added). And in its reply in support of its motion for summary judgment, it wrote: “Trisura has no duty to defend Blue Horse and Betancourt in the Underlying Lawsuit because the Policy does not provide coverage for the claims alleged in Sanchez’s Amended Complaint.” (ECF No. 78 at 17) (emphasis added). The bottom line is that Trisura “declined to defend its position” in the State Court action, and this amounts to a confession of judgment. Wollard, 439 So.2d at 218.

Third, Trisura contends that even if the settlement is a confession of judgment, Betancourt and Blue Horse are only entitled to attorneys’ fees they incurred as of November 4, 2021, the date Sanchez filed his Amended Complaint. (ECF No. 85 at 11-11). Trisura states: “An insured is only entitled to attorneys’ fees from the date the operative [*11]  complaint giving rise to a duty to defend arises.” (ECF No. 85 at 10).³ Again, this argument is based on Trisura’s suggestion that the Amended Complaint caused its position on coverage to change, when Trisura made clear that this was not the case. The Court rejects this argument.

I conclude that Trisura’s settlement is the functional equivalent of a confession of judgment, and Betancourt and Blue Horse are entitled to recover reasonable attorneys’ fees they incurred defending this action.

IV. RECOMMENDATION

I RESPECTFULLY RECOMMEND that the Court GRANT Defendants Betancourt and Blue Horse’s Joint Motion to Determine Entitlement to Attorney’s Fees, (ECF No. 84), and order that they are entitled, pursuant to Fla. Stat. § 627.428 (1), to recover their reasonable attorneys’ fees.

V. OBJECTIONS

No later than fourteen days from the date of this Report and Recommendation the parties may file any written objections to this Report and Recommendation with the Honorable Kathleen M. Williams, who is obligated to make a de novo review of only those factual findings and legal conclusions that are the subject of objections. Only those objected-to factual findings and legal conclusions may be reviewed on appeal. See [*12]  Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985), Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989), 28 U.S.C. § 636(b)(1), 11th Cir. R. 3-1 (2016).

RESPECTFULLY RECOMMENDED in Miami, Florida this 22nd day of August 2022.

/s/ Chris Mcaliley

CHRIS MCALILEY

UNITED STATES MAGISTRATE JUDGE

End of Document

---

¹ I note here Betancourt’s Motion for Order to Enter Final Judgment, (ECF No. 98), that Blue Horse joined and adopted. (ECF No. 100). That Motion asks the Court to enter a final judgment because the settlement is a “confession of judgment” that entitles Betancourt and Blue Horse to an award of attorneys’ fees. (ECF No. 98 at 2 ¶ 3). The Court need not grant that Motion yet and may enter an award of attorneys’ fees for Betancourt and Blue Horse (after the Court determines the amounts) and dismiss this case as moot. See, e.g., Atain Specialty Ins. Co. v. Henry’s Carpet & Interiors, Inc., No. 20-cv-62089, ECF No. 38 (Order of Dismissal), ECF No. 63 (Order granting Motion for Attorney’s Fees and awarding fees and costs without entry of a separate judgment).

² Trisura cites to Basik Exports & Imports, Inc. v. Preferred Nat. Ins. Co., 911 So.2d 291, 293 (Fla. 4th DCA 2005); Essex Builders Grp., Inc. v. Amerisure Ins. Co., No. 06-cv-1562, 2007 WL 1839409, at *4 (M.D. Fla. June 26, 2007); and State Farm Fla. Ins. Co. v. Lorenzo, 969 So.2d 393, 397 (Fla. 5th DCA 2007). In each case, the insured initiated the separate declaratory judgment action; the insurer did not force the insured to retain counsel and incur fees.

³ Trisura cites two cases for support: Colony Ins. Co. v. De Robles, No. 08-60856-CIV, 2009 WL 10667748, at *2 (S.D. Fla. Dec. 8, 2009) and Founders Ins. Co. v. Cortes-Garcia, No. 10-cv-02286, 2013 U.S. Dist. LEXIS 23365, 2013 WL 461731, at *3 (M.D. Fla. Feb. 7, 2013). (See ECF No. 85 at 10). I find that Colony supports Betancourt and Blue Horse’s argument, and that Founders is distinguishable. The Colony Court declined to limit its award of fees, as the insurer asked, to only those the insured incurred after a second amended complaint was filed in state court. The Court noted the plain language of the statute that requires the Court to award fees to the insured “for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had”, noting that the insurer’s entire suit caused the insured to incur fees. The Court also noted that while it granted summary judgment for the insured based on a second amended complaint filed in state court, it did not go further and determine that earlier state court complaints would not have led to the same result. Colony, 2009 WL 10667748, at *3. In Founders, the Court awarded fees only from the time the second amended complaint was filed in the state action because it included specific allegations that clearly implicated the insurer’s duty to defend, and therefore “Plaintiff was wrongful to have continued to fight the issue”. 2013 WL 461731, at *5.

United States District Court for the Middle District of Florida, Tampa Division

August 22, 2022, Decided; August 22, 2022, Filed

Case No. 8:21-cv-2052-TPB-SPF

Reporter

2022 U.S. Dist. LEXIS 150368 *; 2022 WL 3586538

GEMINI INSURANCE COMPANY, Plaintiff, v. ZURICH AMERICAN INSURANCE COMPANY, Defendant.

Core Terms

policies, summary judgment, summary judgment motion, insurance policy, excess clause, clauses, genuine, parties, rata

Counsel:  [*1] For Gemini Insurance Company, Plaintiff: Melissa A. Santalone, LEAD ATTORNEY, Freeman, Mathis & Gary, LLP-Tampa, Tampa, FL; Philip W. Savrin, I, PRO HAC VICE, Freeman Mathis & Gary, LLP, Atlanta, GA.

For Zurich American Insurance Company, Defendant: Douglas M. McIntosh, LEAD ATTORNEY, Ilana Blair Olman, Segal McCambridge Singer & Mahoney, LTD, Fort Lauderdale, FL.

Judges: TOM BARBER, UNITED STATES DISTRICT JUDGE.

Opinion by: TOM BARBER

Opinion

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on “Defendant, Zurich American Insurance Company’s Motion for Summary Judgment” (Doc. 41), and Plaintiff’s “Motion for Summary Judgment and Brief in Support” (Doc. 42), both filed on June 15, 2022. On June 29, 2022, the parties filed responses in opposition to the respective motions. (Docs. 44; 45). After reviewing the motions, responses, court file, and the record, the Court finds as follows:

Background

On March 19, 2018, a tractor-trailer driven by an employee of FSR Trucking Inc. (“FSR”) struck and killed Josue Vallejo. FSR and its driver were insured under an insurance policy issued by Old Republic Insurance Company (“ORIC”) to Ryder, with [*2]  a limit of $1 million. FSR was also insured by Plaintiff Gemini Insurance Company under a policy with a limit of $3 million. And CTL was insured under a policy issued by Defendant Zurich American Insurance Company (“Zurich”) with a limit of $1

After Vallejo’s death, his estate demanded payment of the $1 million limit under the ORIC policy to settle the underlying claim. Vallejo’s estate subsequently learned of the Gemini policy and instead demanded the $3 million limit. Gemini responded to that demand, requested additional information, and informed Vallejo’s estate of the Zurich insurance policy that covered the trailer.

On January 14, 2019, the Vallejo estate, Gemini, and ORIC met for mediation. Defendant Zurich was invited but did not attend. The mediation resulted in a $3 million settlement, with ORIC paying $1 million and Gemini paying $2 million. After the mediation, Gemini sent letters to Zurich seeking payment of $1 million, contending that Zurich owed that portion of the settlement. Zurich acknowledged that their policy covered the accident but declined to pay.

On August 25, 2021, Plaintiff filed a three-count complaint seeking declaratory judgment, contractual subrogation, and [*3]  equitable subrogation. Zurich has since paid a pro rata share of $500,000 toward the settlement, but it has not paid the $1 million policy limit. The parties now move for summary judgment.

Legal Standard

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). A properly supported motion for summary judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Only the existence of a genuine issue of material fact will preclude summary judgment. Id.

The moving party bears the initial burden of showing that there are no genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). When the moving party has discharged its burden, the nonmoving party must then designate specific facts showing the existence of genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations or evidence, the nonmoving party’s evidence is presumed to be true and all reasonable inferences must be drawn in the nonmoving party’s favor. Shotz v. City of Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003).

The standard for cross-motions for summary judgment is not different from the standard applied when only one party moves for summary judgment. Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005). The Court must [*4]  consider each motion separately, resolving all reasonable inferences against the party whose motion is under consideration. Id. “Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (quoting Bricklayers Int’l Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017 (5th Cir. 1975)).

It is well-settled that “the interpretation of an insurance policy is a question of law to be decided by the Court.” Desai v. Navigators Ins. Co., 400 F. Supp. 3d 1280, 1288 (M.D. Fla. 2019) (citing Goldberg v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 143 F. Supp. 3d 1283, 1292 (S.D. Fla. 2015); see also Chestnut Associates, Inc. v. Assurance Co. of America, 17 F. Supp. 3d 1203, 1209 (M.D. Fla. 2014); Szczeklik v. Markel Intern. Ins. Co., Ltd., 942 F. Supp. 2d 1254, 1259 (M.D. Fla. 2013).

Analysis

Federal courts apply state law in construing insurance policies, and the parties agree that Florida law governs this dispute. See Travelers Indem. Co. v. PCR Inc., 326 F.3d 1190, 1193 (11th Cir. 2003). In Florida, “insurance contracts must be construed in accordance with the plain language of the policy.” Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003); see Nat’l Union Fire Ins. Co. of Pittsburgh, PA, v. Travelers Ins. Co., 214 F.3d 1269, 1272 (11th Cir. 2000) (“In apportioning contractual responsibilities among multiple insurers, this court has recognized that Florida law is quite clear that the parties’ intent is to be measured solely by the language of the policies unless the language is ambiguous.” (quotation marks omitted)).

In particular, Florida courts give “careful attention to the other insurance clauses,” which describe what occurs if other insurance coverage is available for the specific loss. [*5]  See Am. States Ins. Co. v. Baroletti, 566 So. 2d 314, 316 (Fla. 2d DCA 1990) (quotation marks omitted); Tobin v. Mich. Mut. Ins. Co., 948 So. 2d 314, 316 (Fla. 2d DCA 1990) (quotation marks omitted).

This case involves three insurance policies covering the same accident, each of which contains “other insurance” clauses that seek to escape or limit liability if other insurance applies. The ORIC policy has been paid in full and has not been challenged in this case so the Court must therefore determine how to apply the Gemini and Zurich policies’ excess clauses, which each provide that the policy is excess over other insurance. The Gemini policy states that “[t]his insurance is excess over and shall not contribute with any of the other insurance, whether primary, excess, contingent or on any other basis.” The Zurich policy states that “[w]hen this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share.” Gemini contends that its policy is excess to the Zurich coverage, which should result in Zurich paying its full $1 million limit before Gemini pays anything for the underlying claim. Zurich argues that the Gemini policy is not excess to the Zurich policy so that the two companies should pay pro rata apportionment for the underlying claim.

In Florida, [*6]  “where two or more policies that apparently cover the same loss both contain excess ‘other insurance’ provisions, the clauses are deemed ‘mutually repugnant.'” Keenan Hopkins Schmidt and Stowell Contractors, Inc. v. Cont’l Cas. Co., 613 F.Supp.2d 1255, 1263 (M.D. Fla. 2009). This results in “apportioning the policies on a pro rata basis determined by the policy limits in relation to the loss.” Allstate Ins. Co. v. Exec. Car & Truck Leasing, Inc., 494 So. 2d 487, 489 (Fla. 1986). The reason for this is simple – “where two policies both have excess clauses, there is no direct way to determine which should be treated as excess simply by reference to the policies.” Twin City Fire Ins. Co. v. Fireman’s Fund Ins. Co. 386 F.Supp.2d 1272, 1278 (S.D. Fla. 2005). Upon review, the Court finds that the Zurich and Gemini policies demonstrate an intent to attach at the same level of excess. Because this renders the policies mutually repugnant, the Court is required to apportion the payment on a pro rata basis.

Although Gemini acknowledges that excess insurance clauses typically negate one another, it argues that its policy’s “and shall not contribute” language renders it distinguishable from Zurich’s policy, which lacks such language. Because the two policies have different terms, Gemini argues, this Court should give them different meaning even though they are both excess clauses¹ . Although it is a close call as to whether the phrase “and shall not contribute” logically connotes an [*7]  additional level of excess, “courts in Florida do not explicitly recognize that departure from the ratable contribution rule is proper when it would ‘clearly distort’ the plain meaning of the policies.” AIG Premier Ins. Co. v. RLI Ins. Co. 812 F.Supp.2d 1315, 1324 (M.D. Fla. 2011) (comparing Florida law with New York law, which does allow for departure from ratable contribution when it would distort plain meaning).

Far from “clearly distorting” the meaning of the two policies, attaching the Gemini policy at the same level as the Zurich policy would be consistent with both a plain reading of the policies’ language and precedent in this jurisdiction. See id. at 1324-25 (noting that “shall not contribute” language is not distorted if treated as equal to another excess clause without such language and enforcing mutual repugnancy between two similar clauses); see also American Cas. Co. of Reading Pennsyvlania v. Health Care Indem., Inc., 613 F. Supp. 2d 1310, 1318 (M.D. Fla. 2009) (“To this Court’s knowledge, Florida law does not recognize a “super excess” other insurance clause.”). In this case, the Zurich and Gemini policies both cover the same accident, and both contain excess clauses. Applying Florida’s mutual repugnancy rule leaves each party liable for a pro rata share of the settlement. As such, Defendant Zurich’s motion for summary judgment will be granted, and Plaintiff’s [*8]  motion for summary judgment will be denied.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

1. “Defendant, Zurich American Insurance Company’s Motion for Summary Judgment” (Doc. 41) is hereby GRANTED.

2. Plaintiff’s “Motion for Summary Judgment” (Doc. 42) is DENIED.

3. The parties are directed to confer and submit a proposed final judgment on or before August 28, 2022. If, after conferring, they cannot agree on a proposed judgment, each party may submit a separate proposal.

DONE and ORDERED in Chambers, in Tampa, Florida, this 22nd day of August, 2022.

/s/ Tom Barber

TOM BARBER

UNITED STATES DISTRICT JUDGE

End of Document

---

¹ Florida law is not entirely clear in this area. Compare Aetna Casualty & Sur. Co. v. Beane, 385 So. 2d 1087, 1090 (Fla. 4th DCA 1980) (holding that coverage should not be prorated where one policy’s excess clause provided that the policy “shall not contribute” with other insurance), with AIG Premier Ins. Co, 812 F.Supp.2d at 1315 (distinguishing Beane as involving an umbrella policy and prorating coverage between excess clauses despite “shall not contribute” language in one of the clauses).