National Railroad Passenger Corporation v. Steadfast Insurance Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

NATIONAL RAILROAD

PASSENGER CORPORATION,

d/b/a AMTRAK,

Plaintiff,

v. Case No: 8:20-cv-1134-CEH-CPT

STEADFAST INSURANCE

COMPANY,

Defendant.

___________________________________/

ORDER

This matter comes before the Court on Defendant Steadfast Insurance

Company’s Motion for Summary Judgment (Doc. 43), Plaintiff’s memorandum in

opposition (Doc. 48), Plaintiff’s Motion for Final Summary Judgment (Doc. 45),

Defendant’s response in opposition (Doc. 47), Defendant’s reply (Doc. 49), and the

parties’ Joint Stipulation of Facts and Exhibits (Doc. 51). The Court, having

considered the motions and being fully advised in the premises, will grant Defendant

Steadfast Insurance Company’s Motion for Summary Judgment and deny Plaintiff’s

Motion for Summary Judgment.

I. BACKGROUND AND FACTS1

1 The Court has determined the facts, which are undisputed unless otherwise noted, based on

the parties’ submissions, including the parties’ Joint Stipulation of Facts and Exhibits (Doc.

51), depositions, affidavits and attachments thereto.

This insurance coverage action arises out of a personal injury lawsuit resulting

from a collision between a train and a motor vehicle at a railroad crossing in West

Palm Beach, Florida (the “Lee lawsuit”). Doc. 51-1. Defendant Steadfast Insurance

Company (“Steadfast”) insured South Florida Regional Transportation Authority

(“SFRTA”), a Florida state agency, which acted as the regional transportation

authority over the railroad where the accident occurred. Id. ¶ 13. Plaintiff National

Railroad Passenger Corporation d/b/a Amtrak (“Amtrak”) acted as the passenger

service agent on the railroad, operating the locomotives. Id. ¶ 16.

Veolia Transportation Maintenance and Infrastructure, Inc. (“VTMI”) is a

railroad transport services provider, responsible for operating and maintaining railroad

tracks. Id. ¶¶ 13-14. The Florida Department of Transportation (“FDOT”) owned the

rail corridor where the accident took place. Doc. 51-2. At the time of the accident,

SFRTA and FDOT entered into a maintenance of way agreement (“the Agreement”)

with VTMI to provide railroad infrastructure and maintenance services on the

railroad. Id.

On July 6, 2016, VTMI agent Alberto Perez was performing relay testing

pursuant to the Agreement, during which he deactivated the signals and gate arms at

one of the railroad’s automobile crossings. Doc. 51-1 at ¶ 15. Mr. Perez allegedly failed

to notify the train operators that the signals were deactivated. Id. ¶ 24. Due to the

deactivation of the crossing signals, motor vehicles were not warned of oncoming

trains before crossing the tracks. Id. ¶ 29.

Amtrak employees Russell Griffin and James Knox were operating a

locomotive that was approaching a crossing. Id. ¶¶ 19-20. The locomotive was unable

to stop, and struck a vehicle operated by 24-year-old Tairia Lee as it was driving over

the crossing, causing Ms. Lee to be severely injured. Id. ¶¶ 17, 25.

By letter to SFRTA of August 9, 2016, Amtrak requested documents and

records concerning the signal failure, along with a copy of “any insurance policies

and/or self-insured retention funds which SFRTA maintains” which may provide

coverage for any claims arising from the underlying accident. Doc. 51-3. SFRTA did

not respond to this letter. Doc. 51 ¶ 13. On September 16, 2016, Ms. Lee and

LaShawne Josaphat as her guardian filed the Lee lawsuit against Mr. Perez, Mr.

Griffin, Mr. Knox, VTMI, and Amtrak in Palm Beach County, Florida, Civil

Division, captioned Lee and Josephat v. Perez, et al. Doc. 51-1.

On October 17, 2016, the Lee lawsuit was removed to the United States District

Court for the Southern District of Florida, West Palm Beach Division, under docket

no. 9:16-cv-81745, where SFRTA was later added as a defendant. Doc. 51-4. In

November 2019, the Lee lawsuit settled and the action was dismissed. Id. at 30.

Approximately two years before the accident, on August 19, 2014, SFRTA and

VTMI entered into an Agreement, under which VTMI was to provide maintenance

services on the SFRTA railroad. Doc. 51-2. Section 2.9.13 of the Agreement provides:

[VTMI shall procure] Railroad Protective Insurance with a

limit of not less than Two Million Dollars ($2,000,000) per

occurrence/Six Million Dollars ($6,000,000) aggregate

applying to Bodily Injury Liability, Property Damage

Liability, or Physical Damage to property or a combination

of all three. The aggregate limit shall apply separately to

each job, contract, agreement, project or work order.

SFRTA, FDOT, and CSX Transportation, Inc., are to be

included as “Named Insureds.”

Id. at 22–23.

Section 2.9.3 of the Agreement requires VTMI to furnish certificates of

insurance for the policies it procures. Id. at 20.

Steadfast issued to SFRTA policy no. SCO 0083695-00 for the policy period

December 12, 2014 to December 12, 2019 (the “Steadfast Policy”). Doc. 51-5. The

Steadfast Policy contains the following insuring agreement:

We will pay those sums that the insured becomes legally

obligated to pay as damages because of “bodily injury” or

“property damage” to which this insurance applies. We will

have the right and duty to defend any “suit” seeking those

damages. We may at our discretion investigate any

occurrence and settle any claim or “suit” that may result.

Id. at 10.

The Steadfast Policy also contains the following named insured provisions:

SECTION II-WHO IS AN INSURED

1. You are an insured.

2. Your “executive officers” and directors are insureds, but

only with respect to their duties as your officers and

directors.

3. Your stockholders are insureds, but only with respect to

their liability as stockholders.

4. Any railroad operating over your tracks is an insured.

Id. at 12 (emphasis added).

The Steadfast Policy includes the following notice provision:

2. Duties in the Event of Occurrence, Claim or Suit

a. You must see to it that we are notified as soon as

practicable of an occurrence which may result in a claim.

To the extent possible, notice should include:

1) How, when, and where the occurrence took place;

2) The names and addresses of any injured persons

or witnesses; and

3) The nature and location of any injury or damage

arising out of the occurrence.

b. If a claim is made or “suit” brought against any insured,

you must:

1) Immediately record the specifics of the claim or

“suit”

and the date received; and

2) Notify us as soon as practicable.

You must see to it that we receive written notice of the claim

or “suit” as soon as practicable

c. You and any other involved insured must:

1) Immediately send us copies of any demands,

notices, summonses or legal papers received in

connection with the claim or “suit”;

2) Authorize us to obtain records and other

information;

3) Cooperate with us in the investigation and

settlement or defense of the claim or “suit”; and

4) Assist us, upon our request, in the endorsement of

any right against any person or organization which

may be liable to the insured because of injury or

damage to which this insurance may also apply.

Id. at 14–15.

On October 31, 2018, Maxum Insurance Company (“Maxum”), the

commercial general liability insurer for VTMI, tendered VTMI’s defense and

indemnity of the Lee lawsuit to Steadfast. Doc. 51-6. On November 21, 2018, Steadfast

denied coverage to VTMI based upon the fact that VTMI is not an insured under the

Steadfast Policy issued to SFRTA and because VTMI provided late notice of the

underlying Lee lawsuit. Doc. 51-7.

By letter of January 25, 2019, Amtrak first tendered the defense and indemnity

of the Lee lawsuit to Steadfast. Doc. 51-8. Steadfast responded to Amtrak’s tender by

letter of February 14, 2019, disclaiming coverage on the basis of late notice under

Florida law and requesting information regarding the timeline of Amtrak’s efforts to

locate the Steadfast Policy. Doc. 51-9. Amtrak responded by letter of April 12, 2019,

reasserting Steadfast’s duty to defend and indemnify Amtrak and stating that it first

became aware of the existence of the Steadfast Policy on December 21, 2018. Doc. 51-

10.

Steadfast responded by letter of July 29, 2019, reiterating its disclaimer of

coverage. Doc. 51-11. Amtrak responded by letter of August 30, 2019, reasserting its

position that Steadfast had a duty to defend and indemnify Amtrak. Doc. 51-12.

Steadfast responded by letter of October 1, 2019, reasserting its disclaimer of coverage.

Doc. 51-13.

On May 15, 2020, Amtrak filed the present insurance coverage action (the

“Coverage Action”) against Steadfast. Doc. 1. On December 3, 2020, Amtrak filed an

amended complaint in the Coverage Action. Doc. 30. Amtrak alleges that Steadfast

was obligated to defend and indemnify Amtrak for the Lee lawsuit under the Steadfast

Policy and seeks compensatory damages of $847,012.88. Doc. 30 at 4–5.

II. LEGAL STANDARD

A. Cross-Motions for Summary Judgment

Summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, show there is no

genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). The moving party bears the initial burden of stating the basis for its motion and

identifying those portions of the record demonstrating the absence of genuine issues of

material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1259–60 (11th Cir. 2004). That burden can be discharged if the moving party can show

the court that there is “an absence of evidence to support the nonmoving party’s case.”

Celotex, 477 U.S. at 325.

When the moving party has discharged its burden, the nonmoving party must

then designate specific facts showing that there is a genuine issue of material fact. Id.

at 324. Issues of fact are “genuine only if a reasonable jury, considering the evidence

present, could find for the nonmoving party,” and a fact is “material” if it may affect

the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248–49 (1986). In determining whether a genuine issue of material fact exists, the

court must consider all the evidence in the light most favorable to the nonmoving

party. Celotex, 477 U.S. at 323. However, a party cannot defeat summary judgment by

relying upon conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 F. App’x 852,

858 (11th Cir. 2006).

The standard of review for cross-motions for summary judgment does not differ

from the standard applied when only one party files a motion, but simply requires a

determination of whether either of the parties deserves judgment as a matter of law on

the facts that are not disputed. Am. Bankers Ins. Group v. United States, 408 F.3d 1328,

1331 (11th Cir. 2005). The Court must consider each motion on its own merits,

resolving all reasonable inferences against the party whose motion is under

consideration. Id. The Eleventh Circuit has explained that “[c]ross-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). Cross-motions may, however, be probative of the absence of a factual dispute

where they reflect general agreement by the parties as to the controlling legal theories

and material facts. Id. at 1555–56.

B. Applicable Law

Steadfast argues that Florida law applies to the issues before the Court. Doc. 43

at 11–13. Under Florida law, courts determining which state’s law governs contracts

will apply the doctrine of lex loci contractus, which provides that “the law of the

jurisdiction where the contract was executed governs the rights and liabilities of the

parties in determining an issue of insurance coverage.” State Farm Mut. Auto Ins. Co. v.

Roach, 945 So. 2d 1160, 1163 (Fla. 2006) (citing Sturiano v. Brooks, 523 So. 2d 1126,

1129 (Fla. 1988)). The Steadfast policy was issued to SFRTA in Florida. In its motion,

Amtrak similarly relies on Florida case law. The Court agrees that Florida law governs

this dispute.

III. DISCUSSION

It is undisputed that, at all relevant times, Amtrak was an insured under the

Steadfast policy. See Doc. 51-5 at 12 (“Any railroad operating over your tracks is an

insured.”). Additionally, the parties agree that the Steadfast Policy was in effect on

July 6, 2016, the date of the accident. See id. (policy period from December 12, 2014

to December 12, 2019); see also Doc. 45-2 at 1. The issue before the Court is whether

Steadfast breached the insurance contract by declining to defend and indemnify its

insured Amtrak under the Steadfast Policy for the Lee lawsuit. Steadfast claims it

properly declined defense and indemnification because Amtrak failed to timely notify

it of the loss as required by the policy and Amtrak is unable to overcome the

presumption that Steadfast has been prejudiced.

Under Florida law, the “question of whether an insured’s untimely reporting of

loss is sufficient to result in the denial of recovery under the policy implicates a two-

step analysis.” LoBello v. State Farm Fla. Ins. Co., 152 So. 3d 595, 599 (Fla. 2d DCA

2014) (citations omitted). The first step is to determine whether the insured provided

timely notice. Id. If notice is determined to be timely, as Amtrak argues, then Amtrak

prevails. If notice was untimely, however, a presumption of prejudice in favor of

Steadfast arises and it is Amtrak’s burden to rebut the presumption by showing that

the insurer has not been prejudiced. Bankers Ins. Co. v. Macias, 475 So. 2d 1216, 1218

(Fla. 1985).

A. Notice

The failure to give timely notice is a “legal basis for the denial of recovery under

the policy.” Ideal Mut. Ins. Co. v. Waldrep, 400 So. 2d 782, 785 (Fla. 3d DCA 1981).

The insurance policy at issue here required the named insured, SFRTA, to notify

Steadfast “as soon as practicable of an occurrence which may result in a claim.” Doc.

51-5 at 14. Additionally, the policy provided that

[SFRTA] and any other involved insured must:

1) Immediately send us copies of any demands, notices,

summonses or legal papers received in connection

with the claim or “suit”;

2) Authorize us to obtain records and other information;

3) Cooperate with us in the investigation and settlement

or defense of the claim or “suit”; and

4) Assist us, upon our request, in the endorsement of any

right against any person or organization which may

be liable to the insured because of injury or damage to

which this insurance may also apply.

Id. at 15. It is clear that Amtrak did not immediately send any documents, notices,

demands, or legal papers to Steadfast.

The Eleventh Circuit, in analyzing cases under Florida law noted, “there is no

‘bright-line’ rule under Florida law setting forth a particular period of time beyond

which notice cannot be considered ‘prompt.’” Yacht Club on the Intracoastal Condo.

Ass’n, Inc. v. Lexington Ins. Co., 599 F. App’x 875, 879 (11th Cir. 2015) (citing Kings Bay

Condo. Ass’n, Inc. v. Citizens Prop. Ins. Corp., 102 So.3d 732 (Fla. 4th DCA 2012)).

Rather, because the reasonableness and promptness of the notice necessarily relies on

the facts and circumstances in any given case, Florida courts have found that notice

several years after an occurrence may be considered “prompt” in some cases, but not

others. Yacht Club on the Intracoastal Condo. Ass’n, 599 F. App’x at 879.

In Yacht Club on the Intracoastal, the plaintiff insured did not notify its insurer of

the hurricane loss because it believed the extent of the damages would not exceed the

policy’s $100,000 deductible. The appellate court, in affirming summary judgment for

the insurance carrier, concluded “[w]hatever concerns the Board had about the extent

of damage and its deductible are not relevant under Florida law. Prompt notice is not

excused because an insured might not be aware of the full extent of damage or that

damage would exceed the deductible.” Id. at 880 (citations omitted). Florida courts

have also not excused late notice where the extent of the damages is unknown. See,

e.g., 1500 Coral Towers Condo. Ass’n, Inc. v. Citizens Prop. Ins. Corp., 112 So. 3d 541, 544

(Fla. 3d DCA 2013) (where insured knew in December 2005 that estimate to repair

damages was $259,269.20, delay in notice not excused by question of whether

damages would exceed policy deductible); Waldrep, 400 So.2d at 785 (“the insured

could not wait until the full extent of the damage to the aircraft was apparent, because

the policy covered any ‘occurrence’ resulting in injury to the aircraft”)).2

2 It is apparent from review of the Lee litigation filings that there were numerous insurance

policies in play. See, e.g., Doc. 51-6 (referencing VTMI’s insurance carrier Maxum Indemnity

Company), Doc. 45-13 (referencing FDOT’s $10 million self-insurance retention fund). It is

not for this Court to speculate the reason that Amtrak did not diligently seek to identify the

SFRTA policy after receiving no response from its single correspondence to SFTRA’s

counsel. But, to the extent that Amtrak was not diligent in locating the Steadfast policy

because it did not anticipate that the damages would exceed the other insurance coverage

available in the case, such reasoning has been rejected by Florida courts.

In a light favorable to Amtrak, it had no knowledge of the Steadfast policy until

late 2018. Here, Amtrak argues that its January 2019 notice of the loss to Steadfast

was reasonable and as soon as practicable because it provided Steadfast with notice

within five to six weeks of Amtrak’s learning of the existence of the Steadfast policy at

the Lee mediation. Steadfast, on the other hand, asserts that the notice provided over

two years and four months after the date of loss was unreasonable and untimely.

Plaintiff responds that, at a minimum, it is a question of fact for the jury to decide as

to whether notice to Steadfast was promptly given.

Under Florida law, “[a] policy provision relating to the time when notice of an

[occurrence] must be given, and containing language such as, ‘as soon as practicable,’

means notice given with reasonable dispatch and within a reasonable time in view of

all the facts and circumstances of the particular case.” Laster v. U.S. Fid. & Guar. Co.,

293 So. 2d 83, 86 (Fla. 3d DCA 1974) (citation omitted). Plaintiff is correct that

whether notice is timely can be a question of fact for the jury. Clena Invs., Inc. v. XL

Specialty Ins. Co., No. 10-cv-62028, 2012 WL 1004851, at *4 (S.D. Fla. Mar. 26, 2012).

However, “when the undisputed factual record establishes notice is so late that no

reasonable juror could find it timely, Florida courts will deem the notice untimely as

a matter of law.” Id. (four-year delay untimely as a matter of law); Midland Nat’l Ins.

Co. v. Watson, 188 So. 2d 403, 405 (Fla. 3d DCA 1966) (two-year delay untimely as a

matter of law); Kroener v. Fla. Ins. Guar. Ass’n, 63 So.3d 914, 916 (Fla. 4th DCA 2011)

(“as a matter of law, notice to the insurer of a claim of loss more than two years and

two months after the loss occurred was not prompt notice”).

On the undisputed facts of this case, it is apparent that Amtrak did not give

timely notice to Steadfast as required by the insurance policy. The accident in which

Ms. Lee sustained serious injuries occurred in July 2016. There appears no dispute to

all who were aware of the accident at that time that a claim would result. Amtrak

became aware of the accident almost immediately, as two of its employees were

operating the locomotive that struck Ms. Lee’s vehicle. In August 2016 Amtrak sent a

letter to counsel for SFRTA requesting a copy of “any insurance policies and/or self-

insured retention funds which SFRTA maintains” which may provide coverage for

any claims arising from the underlying accident.3 Doc. 51-3. Additionally, the letter

requested eight categories of materials including, among other things, the warning

signals’ crossing data recorder, reports prepared by signal managers, inspection and

test records, and any physical evidence inside the signal box from immediately before,

during and after the accident. Id. at 2–3. Amtrak also requested a meeting to review

the materials and to confirm they were preserved. Id. at 3. Amtrak received no response

to its letter.4 Doc. 51 ¶ 13.

On September 16, 2016, Ms. Lee sued Amtrak, VTMI, and others for negligence

in a seven-count complaint filed in state court. Doc. 51-1. The action was removed to

3 It is undisputed that under the agreement between SFRTA and VTMI that VTMI was

required to procure railroad protective liability insurance. Doc. 51-2 at 23.

4 Amtrak’s motion does not indicate when Amtrak first had access to those materials, whether

the materials requested were preserved, or whether a meeting with SFRTA’s counsel ever

occurred.

federal court on October 17, 2016. Doc. 51-4.5 Once in federal court, Lee moved to

amend her complaint, which the court granted, and added SFRTA as a named

Defendant in May 2017. Id. at 10 (Docs. 59, 60). SFRTA is the named insured on the

Steadfast Policy at issue here, but the evidence of record reflects that SFRTA did not

seek a defense and coverage under the Steadfast Policy until January 2019. Doc. 45-

13 at 1.

SFRTA moved to dismiss Lee’s Amended Complaint arguing that Eleventh

Amendment immunity barred the negligence claim brought in federal court against

SFRTA, an agency of the State of Florida. Doc. 51-4 at 11 (Doc. 62). On July 6, 2017,

the district judge granted SFRTA’s motion to dismiss, in part, and remanded Lee’s

claim against SFRTA to state court.6 Id. at 11 (Doc. 68). A mediation was conducted

on November 30, 2017, which was unsuccessful. Id. at 15 (Doc. 107). VTMI moved

for summary judgment in December 2017 and Amtrak moved for partial summary

judgment on the issue of statutory immunity under Fla. Stat. § 768.28, in February

2018. Id. at 15, 16 (Docs. 108, 122). The district judge denied both motions in July

2018. Id. at 17 (Doc. 135). The Lee lawsuit was initially scheduled for trial in June 2017

5 The parties filed as an exhibit to their stipulation the docket from the underlying Lee case.

See Doc. 51-4. The exhibit contains live links to the pleadings filed in the underlying case.

Reference to those pleadings are made by reference to the CM/ECF page number of the

exhibit, followed by the pleading docket number in the Lee case.

6 The court noted that if SFRTA had removed the case to federal court, it would have waived

the applicability of Eleventh Amendment immunity, see Lapides v. Board of Regents of University

System of Ga., 535 U.S. 613,616 (2002) (the Supreme Court held that the “State’s act of

removing a lawsuit from state court to federal court waives [Eleventh Amendment]

immunity”). However, SFRTA was added as a party after removal.

but was continued six times until ultimately being rescheduled for November 2019. Id.

at 6, 10, 14, 16, 22, 26, 28 (Docs. 9, 58, 94, 120, 195, 242, 273). The case settled in

October 2019 and was closed in November 2019. Id. at 29, 20 (Docs. 292, 299).

Based on the record, as a matter of law, the Court finds that notice to Steadfast

was untimely under the policy, and no reasonable trier of fact could conclude

otherwise. See PDQ Coolidge Formad, LLC v. Landmark Am. Ins. Co., 566 F. App’x 845,

849 (11th Cir. 2014) (collecting cases and noting that Florida courts have held that a

six-month or less period is considered late notice); Wheeler’s Moving & Storage, Inc. v.

Markel Ins. Co., No. 11-80272-CIV, 2012 WL 3848569, at *6 (S.D. Fla. Sept. 5, 2012)

(finding notice provided two years after the occurrence and eighteen months after suit

was filed untimely as a matter of law).

Amtrak argues that an insured’s due diligence is inapplicable, but the Court

disagrees. The Eleventh Circuit’s opinion in OneBeacon America Ins. Co. v Catholic

Diocese of Savannah, 477 F. App’x 665 (11th Cir. 2012) is persuasive on the issue of late

notice where an insured is unaware that a policy existed. Although the OneBeacon case

involved application of Georgia law, the requirements for notice under Florida and

Georgia state law are the same. See Kirkland v. Guardian Life Ins. Co. of Am., 352 F.

App'x 293, 296 (11th Cir. 2009) (observing both “Florida and Georgia law require

notice within a reasonable period of time, unless compliance is impossible or

unreasonable”) (citing Reliance Life Ins. Co. of Pittsburgh, Pa. v. Lynch, 197 So. 723, 724–

25 (1940) and N. Am. Ins. Co. v. Watson, 64 S.E. 693, 695 (1909)).

In OneBeacon, the court found that the latest date the Catholic Diocese learned

of the injured plaintiff’s sexual assault claims was in April 2006 when the Diocese was

served with a copy of the summons and complaint. 477 F. App’x at 671. The Diocese

did not provide notice to the insurer OneBeacon until January 2008, approximately 21

months later. Id. The district court found the delay in notice to be unreasonable

notwithstanding the Diocese’s argument that the delay was justified because it

provided notice as soon as it discovered the insurance policies in question. Id. On

appeal to the Eleventh Circuit, the Diocese argued that the circumstances of this case

were unique because the policies in question were issued 26 to 33 years prior to the

lawsuit. The appellate court, in affirming the district court’s grant of summary

judgment in the insurer’s favor and in rejecting the Diocese’s argument, found that the

Diocese failed to present sufficient evidence about its proposed justification or its due

diligence in providing notice to OneBeacon to create a question of fact for the jury. Id.

The only evidence presented was the affidavit of the Diocese’s attorney which

provided in conclusory manner that when served with the complaint, the Diocese

contacted its former insurance agent to determine what coverage was available. Id. at

672. The affidavit indicates that initially only a Catholic Mutual policy was discovered

and subsequently the policy in question was discovered, after which the Diocese

tendered defense of the lawsuit. Id. The Eleventh Circuit found significant the lack of

critical detail in the affidavit, given the 21-month delay, and concluded the affidavit

was insufficient as a matter of law to create an issue of material fact. Of note, the

Eleventh Circuit questioned the lack of any dates in the affidavit, “leaving one to

wonder when the Diocese contacted its former insurance agent, what the agent said,

when the Catholic Mutual policy was discovered, what steps the Diocese took to locate

other policies, when the agent told the Diocese about the Commercial Union

[predecessor to OneBeacon] policies, or how long after that discovery the Diocese

notified OneBeacon.” Id. at 672.

The Court is left with similar unanswered questions here, given the lack of

details provided by Amtrak. Why did Amtrak not follow up on the single letter that it

sent to SFRTA? Although, in a light favorable to Amtrak, the record reflects that

Amtrak did not learn of the Steadfast policy until late 2018, why did Amtrak not take

any steps at all to attempt to identify the policy or the insurance carrier prior to that

date given that Amtrak was aware of the SFRTA/VTMI maintenance agreement (as

referenced in the August 2016 letter). See Doc. 51-3. The letter Amtrak sent to SFRTA

specifically contemplates that coverage exists, and yet, after no response from SFRTA,

Amtrak failed to follow up with SFRTA’s lawyer with whom Amtrak requested a

meeting and failed to explain in its pleadings its lack of diligence in this regard. Amtrak

simply provides no evidence to answer these questions. Amtrak was represented by

counsel throughout the Lee litigation, had the ability to conduct written and deposition

discovery for two years, and participated in a mediation in 2017. Amtrak proffers no

evidence that creates a disputed issue of material fact on the question of how its notice

to Steadfast in January 2019 could not be considered untimely. No reasonable trier of

fact could conclude that Amtrak’s notice to Steadfast is timely when Amtrak did not

notify Steadfast until two years and four months after it was served with the Lee lawsuit

and provides no reasonable explanation for not discovering the Steadfast policy earlier.

B. Prejudice

Having determined that Amtrak’s notice was untimely, the next question is

whether Steadfast was prejudiced by the late notice. The Florida Supreme Court has

explained that an insured’s breach of the duty of notice (as opposed to the duty of

cooperation) results in a rebuttable presumption of prejudice to the insurer. See Bankers

Ins., 475 So.2d at 1218. The burden is “on the insured to show lack of prejudice where

the insurer has been deprived of the opportunity to investigate the facts.” Id. Thus, it

is not Steadfast’s obligation to show it has been prejudiced. The burden is on Amtrak

to prove a lack of prejudice to Steadfast. Gemini II Ltd. v. Mesa Underwriters Specialty

Ins. Co., 592 F. App’x 803, 806 (11th Cir. 2014) (holding that under Florida law, the

burden is on the insured to prove the lack of prejudice).

“Prejudice is properly resolved on summary judgment where an insured fails to

present evidence sufficient to rebut the presumption.” PDQ Coolidge Formad, LLC, 566

F. App'x at 849 (citations omitted). To attempt to rebut the presumption here, Amtrak

first argues that Steadfast knew about the Lee accident and lawsuit at the absolute

latest by October 31, 2018 when VTMI tendered its defense to Steadfast. Doc. 45 at

11; Doc. 45-13 at 2; Doc. 51-6. VTMI is not an insured under the Steadfast policy, but

certainly Steadfast cannot deny knowledge of the litigation by that date.

Notwithstanding, that was still over two years after the date of the accident and the

filing of the Lee lawsuit. Next, Amtrak contends that the Railroad Signal & Train

Control Group Factual Report of Investigation (the “Report”) shows knowledge of the

incident by Steadfast’s insured SFRTA almost immediately following the accident.

Doc. 45-15 at 11. However, this does not show that Steadfast knew about the accident,

and Amtrak fails to cite any authority to support that SFRTA’s knowledge of the

accident may be imputed to its insurance carrier. Indeed, imputing such knowledge is

illogical as it would essentially eliminate the notice requirement in an insurance policy.

The evidence here demonstrates that SFRTA did not even request indemnification and

a defense from Steadfast for the claims pending against it in state court until January

9, 2019. See Doc. 45-13 at 1. Thus, Amtrak does not proffer any evidence that Steadfast

knew of the accident prior to October 31, 2018, which is still more than two years after

the date of loss.

Amtrak argues that even if Steadfast did not know about the accident until

October 31, 2018, “record evidence shows that an investigation conducted

immediately following Ms. Lee’s accident would not have disclosed anything

materially different from that disclosed by a delayed investigation.” Doc. 45 at 12. In

support, Amtrak cites to the Report, which Amtrak claims “laid out the material facts

of the Lee case.” Id. Amtrak further submits that Steadfast had time to request and

review discovery as the trial had been rescheduled until November 4, 2019. Amtrak

faults Steadfast for not using the 8-month time frame in 2019 once it received notice

in which to investigate and petition the court for leave to take any supplemental

discovery it deemed necessary. Id. at 13.

Steadfast responds that Amtrak has failed to proffer any evidence to rebut the

presumption of prejudice. The Court agrees. Simply stating that Steadfast was not

prejudiced is insufficient for Amtrak to carry its burden and overcome the

presumption. See 1500 Coral Towers, 112 So. 3d at 545 (conclusory statement by one of

plaintiff’s engineers that, in his opinion, the late notice did not prejudice the insurer

was legally insufficient to overcome the presumption of prejudice). Amtrak’s

statements that Steadfast had “ample opportunity” to review discovery and to

investigate are too conclusory to carry its burden of showing a lack of prejudice. See

Nat’l Tr. Ins. Co. v. Graham Bros. Constr., 916 F. Supp. 2d 1244, 1259 (M.D. Fla. 2013)

(mere assertion that insurer had “plenty of time to investigate the claims and defend”

or intervene in the lawsuit was insufficient to rebut presumption on summary

judgment); Starr Indem. & Liab. Co. v. Rodriguez, 495 F. Supp. 3d 1279, 1286–87 (S.D.

Fla. 2020) (statement that insurer had opportunity to engage in discovery after

underlying accident and take statements from Dr. Rodriguez three years after the

accident was insufficient to rebut presumption on summary judgment).

Amtrak does not discuss the extent and type of discovery conducted, the status

of expert discovery, identity of witnesses deposed or statements taken such that the

Court would be able to completely analyze the issue of prejudice. Simply stated,

Amtrak wholly fails to show a lack of prejudice as Amtrak fails to proffer evidence to

rebut the presumption that Steadfast was prejudiced. As Amtrak has failed to identify

details of what investigation and discovery had been done prior to the request for

indemnification and defense, the Court is unable to make an informed analysis as to

whether there was anything left for Steadfast to do. Just as problematic, Amtrak does

not explain how Steadfast would be able to engage in discovery when, by this point in

the litigation, discovery was closed and the parties had already filed motions for

summary judgment. Amtrak, in a conclusory manner, claims that Steadfast had the

opportunity to engage in written discovery, but there is no indication that the district

judge would have re-opened discovery to allow Steadfast to do so on behalf of Amtrak,

who had been a party in the case since the date it was filed.

Even assuming, in a light most favorable to Amtrak, that the Report prepared

following the accident provided a complete investigation of the accident, the purpose

of a provision for notice and proof of loss goes beyond mere causation and is “to enable

the insurer to evaluate its rights and liabilities, to afford it an opportunity to make a

timely investigation, and to prevent fraud and imposition upon it.” Laster, 293 So. 2d

at 86 (citation omitted). Amtrak has failed to come forward with evidence to show that

Steadfast was not prejudiced in its ability to do these things due to the late notice.

In response to Steadfast’s motion for summary judgment, Amtrak alternatively

argues that questions of fact regarding whether Steadfast was prejudiced preclude

summary judgment. However, Amtrak has not directed the Court to any record

evidence or any facts to overcome the presumption that Steadfast has been prejudiced.

It is Amtrak’s burden to do so, and it has failed. No material disputed issues of fact

have been raised by Amtrak to overcome the presumption of prejudice, and thus,

Steadfast is entitled to summary judgment.

As no genuine issues of material fact exist, Defendant Steadfast Insurance

Company is entitled to a judgment in its favor as a matter of law. Defendant Steadfast

Insurance Company has no duty under the policy of insurance to defend and/or

indemnify Plaintiff National Railroad Passenger Corporation d/b/a Amtrak for the

underlying action.

Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. Defendant Steadfast Insurance Company’s Motion for Summary

Judgment (Doc. 43) is GRANTED, as no genuine issues of material fact exist.

2. Plaintiff National Railroad Passenger Corporation d/b/a Amtrak’s

Motion for Final Summary Judgment (Doc. 45) is DENIED.

3. Defendant Steadfast Insurance Company has no duty under the policy of

insurance to defend and/or indemnify Plaintiff National Railroad Passenger

Corporation d/b/a Amtrak for the underlying action.

4, The Clerk is directed to terminate all pending motions as moot. A

Declaratory Judgment will be entered by separate Order of the Court.

DONE AND ORDERED in Tampa, Florida on March 26, 2022.

□□□ lene Ldwarda Mp TDs gl ell

Charlene Edwards Honeywell

United States District Judge

Copies to: Counsel of Record and Unrepresented Parties, if any

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