First Mercury Insurance Company v. First Florida Building Corporation

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

FIRST MERCURY INSURANCE

COMPANY,

Plaintiff,

v. Case No: 8:20-cv-1929-CEH-MRM

FIRST FLORIDA BUILDING

CORPORATION, FIRST FLORIDA

LLC and GILBERTO SANCHEZ,

Defendants.

ORDER

This cause comes before the Court on Plaintiff First Mercury Insurance

Company’s (“First Mercury”) Motion for Partial Summary Judgment (Doc. 74),

Defendant Gilberto Sanchez’s Response in Opposition (Doc. 89), Defendant First

Florida Building Corporation and First Florida LLC’s (collectively, “First Florida”)

Response in Opposition (Doc. 91), and Plaintiff’s Reply (Doc. 93). In this declaratory

judgment action, Plaintiff seeks partial summary judgment on Counts III and IV and

Defendants’ affirmative defenses. Upon review and consideration, the Motion for

Partial Summary Judgment will be denied.

Also before the Court is First Florida’s Motion for Reconsideration of Order

Denying Motion to Stay (Doc. 60), and First Mercury’s response in opposition (Doc.

68). First Florida previously moved to stay any declaration regarding First Mercury’s

duty to indemnify until the underlying lawsuit is resolved (Doc. 18), which the Court

denied (Dkt. 59). Upon full consideration and review of the parties’ submissions, the

Court will grant the Motion for Reconsideration and stay the declaratory judgment

action regarding First Mercury’s duty to indemnify.

I. FACTUAL BACKGROUND1

On September 24, 2019, Gilberto Sanchez filed a personal injury lawsuit against

multiple defendants in the Thirteenth Judicial Circuit in and for Hillsborough County,

Florida (“the underlying lawsuit”). Doc. 44-1. Sanchez suffered severe injuries after

falling through an unmarked hole in the roof of a building under construction at the

Apartments at Grady Square on March 21, 2016. Id. ¶ 9-11, 81.

First Florida Building Corporation (“FFBC”) and First Florida, LLC

(“FFLLC”) (collectively, “First Florida”) are two of the defendants in the underlying

lawsuit. Doc. 44-1 ¶¶ 17-18, 392-395. Sanchez alleges that he was an invitee on the

premises of the apartment complex who “was working with” FFBC at all times

material to the action. Id. ¶¶ 3, 78, 90. Sanchez further alleges that all defendants,

including FFBC and FFLLC, are liable for his injuries because they knew or should

have known that the roof’s conditions were inherently dangerous. Id. ¶¶ 51-59, 408-

416.

At the time of Sanchez’s accident, FFBC and FFLLC were covered by a

commercial general liability insurance policy (“the policy”) by First Mercury. Doc. 44

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

the parties’ submissions, including declarations and exhibits. For purposes of summary

judgment, the Court considers the facts in the light most favorable to the non-moving party

as required by Fed. R. Civ. P. 56.

¶ 34. The policy requires First Mercury to defend FFBC and FFLLC against any

lawsuit seeking damages for bodily injury, provided the policy applies to the injury. Id.

¶ 35. The policy does not apply to the injury of an employee of the insured that arose

out of and in the course of either their employment or the performance of duties related

to the conduct of the insured’s business (the “employer’s liability exclusion”). Id. at ¶

36. The policy also does not apply if the insured is obliged to pay workers’

compensation (the “worker’s compensation exclusion”). Id. The policy applies only

to bodily injuries resulting from an “occurrence,” which is defined as an accident, and

excludes those “expected or intended from the standpoint of the insured.” Id.

Pursuant to the policy, First Mercury has been paying for the defense of FFBC

and FFLC in the underlying lawsuit. Id. ¶¶ 4-5, 38 However, First Mercury has

reserved its right to deny coverage based on the policy exclusions it asserts apply. Id.;

Doc. 74 at 8-9. Accordingly, First Mercury initiated the instant declaratory judgment

action on August 19, 2020. First Mercury seeks a declaration that it has no duty to

defend or indemnify First Florida, because the policy does not apply under the

following policy exclusions:

1) Sanchez’s injuries were not caused by an “occurrence”

2) Expected or intended injury exclusion

3) Workers compensation and similar laws exclusion

4) Employer’s liability exclusion

Doc. 44 ¶¶ 40-61.

First Florida and Sanchez, as a third-party beneficiary of the policy, have filed

counterclaims against First Mercury seeking a declaration that First Mercury is

obligated to fully defend and indemnify First Florida under the policy in relation to

the underlying lawsuit. Docs. 47, 48.

Shortly after the declaratory judgment action was filed, First Florida filed a

motion to stay any declaration regarding First Mercury’s duty to indemnify until the

underlying lawsuit is resolved. Doc. 18. Sanchez joined in the motion, while First

Mercury opposed it. Docs. 28, 29. The Court issued an endorsed order denying a stay,

noting that Sanchez’s losses in the underlying state court action are ripe for review. See

Dkt. 59. First Florida now moves for reconsideration, which First Mercury opposes.

Docs. 60, 68.

First Mercury seeks summary judgment on two of the counts in relation to

FFLLC; specifically, it argues that summary judgment is appropriate on the question

of whether the workers compensation and employer’s liability exclusions relieve it of

its duty to defend or indemnify FFLLC in the underlying lawsuit. Doc. 74.2 All

defendants oppose the motion for summary judgment. Docs. 89, 91. Although the

defendants have not filed a cross-motion for summary judgment, Sanchez notes that a

sua sponte grant of summary judgment in the defendants’ favor on the duty to defend

issue is warranted. Doc. 94.

2 First Mercury also contends that it is entitled to summary judgment on First Florida’s six

affirmative defenses. Doc. 74 at 21-24. In addition to its argument that some of them

constitute denials, rather than defenses, First Mercury asserts that the fourth affirmative

defense, that the claim is barred under a Florida statute, fails on the merits. Id. In its response,

however, First Florida asks the Court to consider the fourth affirmative defense, as well as the

second and fifth, as a denial instead of a defense. Doc. 91 at 18-19. Accordingly, the Court

will not rule on the merits of these defenses at the summary judgment stage.

II. LEGAL STANDARD

A. Motion for Summary Judgment

Summary judgment is appropriate only when the court is satisfied that “there is

no genuine issue of material fact and that the moving party is entitled to judgment as

a matter of law” after reviewing the “pleadings, the discovery and disclosure materials

on file, and any affidavits[.]” Fed. R. Civ. P. 56(c)(2). 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. Shotz v. City of Plantation, Fla., 344 F.3d

1161, 1164 (11th Cir. 2003). Issues of fact are “genuine only if a reasonable jury,

considering the evidence presented, could find for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A fact is “material” if it may affect the

outcome of the suit under governing law. Id.

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 Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); 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. “Only when that burden has

been met does the burden shift to the non-moving party.” Clark v. Coats & Clark, Inc.,

929 F.2d 604, 608 (11th Cir. 1991).

“[I]n order to survive summary judgment, the nonmoving party must set forth

specific facts showing there is a genuine issue for trial.” Johnson v. New Destiny Christian

Ctr. Church, Inc., 826 F. App’x 766, 770 (11th Cir. 2020) (citing Anderson, 477 U.S. at

249-50). “[U]nsupported ‘conclusory allegations’ do not suffice.” Middlebrooks v. Sacor

Fin., Inc., 775 F. App'x 594, 596 (11th Cir. 2019). Likewise, “[a] ‘mere existence of a

scintilla of evidence’ cannot suffice to create a genuine issue of material fact.” Johnson,

826 F. App’x at 770 (quoting Anderson, 477 U.S. at 252).

B. Motion for Reconsideration

Under Federal Rule of Civil Procedure 59(e), a litigant may move for

discretionary reconsideration of an order within 28 days. “[A] motion to reconsider

must demonstrate why the court should reconsider its decision and set forth facts or

law of a strongly convincing nature to induce the court to reverse its prior decision.”

McGuire v. Ryland Grp., Inc., 497 F. Supp. 2d 1356, 1358 (M.D. Fla. 2007). “This

ordinarily requires a showing ‘of clear and obvious error where the interests of justice

demand correction.’” Id. (quoting Prudential Sec., Inc. v. Emerson, 919 F.Supp. 415, 417

(M.D.Fla.1996)). Reconsideration of an order is usually justified by (i) an intervening

change in controlling law; (ii) the availability of new evidence; or (ii) the need to

correct clear error or manifest injustice. Id. (quoting True v. Comm'r of the I.R.S., 108

F.Supp.2d 1361, 1365 (M.D.Fla.2000)); PBT Real Est., LLC v. Town of Palm Beach, 988

F.3d 1274, 1287 (11th Cir. 2021) (“The only grounds for granting [a Rule 59] motion

are newly-discovered evidence or manifest errors of law or fact.”). Further, “[a] motion

for reconsideration cannot be used to ‘relitigate old matters, raise argument or present

evidence that could have been raised prior to the entry of judgment.’” Wilchombe v.

TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quoting Michael Linet, Inc. v.

Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)).

III. DISCUSSION

First Mercury’s motion for summary judgment on the question of its duty to

defend FFLLC is due to be denied. Contrary to its assertions, the identity of Sanchez’s

employer and his employment status are disputed facts. Accordingly, the Court

cannot apply the rare exception to the eight corners rule permitting review of extrinsic

evidence. The allegations of the underlying complaint therefore control and trigger

First Mercury’s duty to defend. Even if the Court could review extrinsic evidence,

however, a genuine issue of material fact would exist regarding Sanchez’s employment

status.

In light of the Court’s conclusion that Sanchez’s employment status is not

undisputed, reconsideration of its order regarding the motion to stay the indemnity

issue is warranted. Because the actual facts do not demonstrate that there is no

possibility of coverage, a declaratory judgment on the question of First Mercury’s duty

to indemnify is premature. The motion for summary judgment on the indemnity issue

is therefore denied without prejudice, the motion for reconsideration is granted, and

the indemnity issue is stayed pending resolution of the underlying lawsuit.

A. Duty to Defend

1. The Parties’ Submissions

First Mercury argues that it is entitled to summary judgment on Counts III and

IV with respect to its duty to defend FFLLC, because there is no genuine dispute that

the policy exclusions for worker’s compensation and employer’s liability apply. Doc.

74 at 13-20. First Mercury asserts that the Court is permitted to look beyond the “eight

corners” of the policy and the complaint in the underlying lawsuit in order to

determine coverage under the policy, because Sanchez omitted crucial,

uncontroverted facts from the complaint. Id. at 1-2, 19-20. First Mercury states it is

undisputed that Sanchez was an employee of FFLLC who was injured in the course

of his employment. Id. at 4-5. Further, Sanchez collected workers compensation

before initiating the underlying lawsuit. Id. at 6. Each of these facts was omitted from

the complaint and relieves First Mercury of its duty to defend FFLLC in the underlying

lawsuit under the policy exclusions. Id. at 13-20.

In response, both Sanchez and First Florida argue that the Court may not

consider extrinsic evidence beyond the policy and the complaint in the underlying

lawsuit; as drafted, the allegations in the complaint trigger a duty to defend because

they create the potential for coverage. Doc. 89 at 6-9; Doc. 91 at 7-8, 11-12, 14. Even

if the Court could consider extrinsic evidence, however, it fails to demonstrate the lack

of a factual dispute regarding Sanchez’s employment status. Doc. 89 at 10-11; Doc. 91

at 12-13. On the contrary, the issue is being hotly contested in the underlying lawsuit.

Id. at 13, 15. First Mercury has also failed to prove that Sanchez was not a temporary

worker, which would return him to the purview of First Mercury’s duty to defend. Id.

at 16-17. Accordingly, the exception to the eight corners rule does not apply. Doc. 89

at 12-15. The defendants also argue that some of First Mercury’s evidence is

inadmissible for lack of proper authentication. Id. at 11 n.7-8; Doc. 91 at 3-5.

Replying to both responses in opposition, First Mercury describes the evidence

of Sanchez’s employment status as “unassailable,” which demonstrates that there is

no true factual dispute. Doc. 93 at 2, 4-8. Nor has First Florida provided any evidence

to show that the “temporary worker” exception applies. Id. at 8-9. First Mercury

argues that its evidence complies fully with Rule 56, which does not require

authentication at the summary judgment stage, but that some of the evidence

submitted by Sanchez in opposition to the motion for summary judgment is

inadmissible hearsay. Id. at 3, 6-7.

2. The Eight Corners Rule

Under Florida law, “the general rule is that an insurance company's duty to

defend an insured is determined solely from the allegations in the complaint against

the insured, not by the true facts of the cause of action against the insured, the insured's

version of the facts or the insured's defenses.” State Farm Fire and Cas. Co., 393 F.3d

1226, 1230 (11th Cir. 2004), citing Amerisure Ins. Co. v. Gold Coast Marine Distribs.,

Inc., 771 So.2d 579, 580–81 (Fla. 4th DCA 2000). This rule is known as the “eight

corners rule,” referring to the four corners of the underlying complaint and the four

corners of the insurance policy. See Addison Ins. Co. v. 4000 Island Blvd. Condominium

Ass’n, Inc., 721 F. App’x 847, 854 (11th Cir. 2017). “If the allegations in the complaint

state facts that bring the injury within the policy's coverage, the insurer must defend

regardless of the merits of the lawsuit. Furthermore, any doubt about the duty to

defend must be resolved in favor of the insured.” Id. (citations omitted). The duty to

defend therefore attaches “even if the allegations in the complaint are factually

incorrect or meritless.” Jones v. Fla. Ins. Guar. Ass’n, Inc., 908 So.2d 435, 443 (Fla. 2005).

An exception to the eight corners rule permits the court to consider extrinsic

evidence in “special circumstances” and “exceptional cases.” See Stephens v. Mid-

Continent Cas. Co., 749 F.3d 1318, 1323 (11th Cir. 2014) (citations omitted). The

exception applies only where it is “manifestly obvious to all involved that the actual

facts placed the claims outside the scope of coverage.” Id., citing First Specialty Ins.

Corp. v. 633 Partners, Ltd., 300 F. App’x 777, 786 (11th Cir. 2008). In such cases, a

court may consider extrinsic facts if those facts are undisputed and, had they been pled

in the complaint, clearly would have placed the claims outside the scope of coverage.

Id.

In AIX Specialty Ins. Co. v. Ashland 2 Partners, LLC, 383 F.Supp.3d 1334 (M.D.

Fla. 2019) (Honeywell, J.), for example, this Court applied the exception when it

granted summary judgment to the insurer because of a policy exclusion barring claims

related to assault and battery. Viewing the facts of the underlying lawsuit, the Court

determined that the parties agreed an employee had intentionally grabbed the injured

party, leading to her injury, even though they disputed whether an intervening fall had

occurred intentionally or negligently. Id. at 1340-41. The intentional grab qualified as

assault and battery under Florida law, regardless of the parties’ dispute regarding the

fall; thus, there was no duty to defend as a matter of law. Id. at 1341. Similarly, in

Underwriters at Lloyds London v. STD Enterprises, Inc., 395 F.Supp.2d 1142 (M.D. Fla.

2005), the court found that coverage was barred under a policy exclusion applying to

vehicles used for business purposes. Although the underlying complaint omitted this

fact, “neither party disputed [it] and the employee’s deposition testimony clearly

supported its veracity.” Id. at 1146, 1150; see also Nationwide Mutual Fire Ins. Co. v. Keen,

658 So.2d 1101, 1102-03 (Fla. 4th DCA 1995) (no duty to defend where underlying

plaintiff conceded a fact that eliminated the possibility of coverage but was omitted

from the underlying complaint).

However, the Eleventh Circuit has clarified that it is not the case that “any time

an insurer disputes a fact, the insurer is entitled to a determination of such

facts…[even] where the underlying allegations at issue appear baseless.” Addison, 721

F. App’x at 855, citing Higgins v. State Farm Fire Ins. and Cas. Co., 894 So.2d 5 (Fla.

2004). Courts will not look beyond the eight corners of the complaint and policy unless

it is undisputed and “manifestly obvious to all” that omitted facts exclude coverage.

See Stephens, 749 F.3d at 1329. In Mt. Hawley Ins. Co. v. Roebuck, 838 F.Supp.3d 1351,

1365 (S.D. Fla. 2019), for example, the parties disputed whether the patron’s injuries

had arisen directly from the tenant’s use of the property, as alleged, or whether they

arose indirectly, in which case they would be excluded from coverage. The court held

that because this fact was disputed, it was not “manifestly obvious to all involved that

the actual facts placed the claims outside the scope of coverage.” Id., quoting Stephens,

749 F.3d at 1329; see also AIX Specialty Ins. Co. v. Everett, 543 F.Supp.3d 1321, 1332-33

(M.D. Fla. 2021) (Honeywell, J.) (allegation in underlying complaint that injured

party was shot by “a bullet” was sufficient to trigger duty to defend despite policy

exclusion for injuries caused by “firearms,” because complaint did not specify the type

or number of weapons involved; declining to review extrinsic evidence submitted by

the parties on the same topic); Southern-Owners Ins. Co. v. Wentworth Construction Co.,

LLC, 15-80789-CIV-MARRA, 2019 WL 8275154 (S.D. Fla. Dec. 9, 2019) (where

expert affidavits contradicted each other and were at odds with the pleadings, the

exception to the eight corners rule did not apply).

Moreover, the eight corners rule applies even where there is no evidence to

support the allegations in the complaint that the insurer disputes. In Evanston Ins. Co.

v. Boone, 8:17-cv-2747-SCB-CPT, 2019 WL 5319237, *2 (M.D. Fla. Oct. 21, 2019)

(Bucklew, J.), for example, the court held that it was bound by the allegations in the

underlying complaint, despite the “substantial evidence” corroborating the insurer’s

theory and the fact that there was no evidence from the insured to support the

allegations in the complaint. Because the facts at issue were disputed by the parties,

regardless of evidentiary support, the exception to the eight corners rule did not apply.

Id. at *3. Similarly, the Eleventh Circuit upheld the district court’s grant of summary

judgment to the insured on a duty to defend issue despite the insurer’s argument that

the relevant allegations in the underlying complaint were unsupported by evidence.

Addison Ins. Co. v. 4000 Island Blvd. Condominium Ass’n, Inc., 721 F. App’x 847, 855 (11th

Cir. 2017).

3. Summary Judgment in First Mercury’s Favor is Not Warranted.

Here, First Mercury does not dispute that the allegations in the underlying

complaint create a duty to defend FFLLC. Doc. 74 at 2. The complaint alleges that

Sanchez was “working with” FFBC at the time of the accident, not FFLLC. Doc. 44-

1 ¶¶ 3. It also alleges that Sanchez was on the premises as an “invitee.” Id. ¶ 78. Based

solely on the eight corners of the complaint and the policy, then, First Mercury has a

duty to defend FFLLC.

First Mercury argues that the Court should apply the exception to the eight

corners rule to look outside of the complaint and the policy, because the true facts

establish that coverage is precluded by the employer’s liability and workers’

compensation exclusions. Doc. 74 at 2, 13. Sanchez omitted from his underlying

complaint the “undisputed” fact that he was an employee of FFLLC, which First

Mercury asserts is supported by “unassailable” evidence. Id. at 14, 16, 18; Doc. 93 at

2. Specifically, First Mercury offers extrinsic records demonstrating that Sanchez was

paid by FFLLC as well as a sworn statement by the president of FFBC and FFLLC

that Sanchez was not an employee of FFBC. See Docs. 73-6, 73-7, 73-8, 73-9, 73-10,

73-11, 73-12.3

The Court may only consider such extrinsic evidence if it supports an omitted

fact that is truly undisputed by the parties. While the Court finds that First Mercury’s

3 The parties agree that Sanchez’s employment status and the identity of his employer are the

“key coverage issue[s]” in the motion for summary judgment with respect to the employer’s

liability and workers’ compensation exclusions. See Doc. 74; Doc. 89 at 7 n.4; Doc. 91 at 13

n.8; Doc. 93 at 2.

evidence suggesting FFLLC’s employment of Sanchez is compelling, this fact is not

conceded by either defendant; on the contrary, it is being actively contested in the state

court proceedings. See Boone, 2019 WL 5319237 (eight corners rule applied despite

substantial evidence corroborating insurer’s theory); Doc. 89 at 10-11; Doc. 91 at 13.

Indeed, Sanchez has provided evidence regarding the identity of his employer that

attempts to counter First Mercury’s evidence. See Doc. 89-1, 89-2. While First

Mercury disputes the reliability of Sanchez’s evidence, Doc. 93 at 6-8, its submission

demonstrates that the identity of Sanchez’s employer is not “undisputed.”

Similarly in contention is the question of whether Sanchez was a “temporary

worker” rather than an employee of either FFLLC or FFBC. See Doc. 91 at 16-17.

The policy defines a “temporary worker” as “a person who is furnished to you to

substitute for a permanent ‘employee’ on leave or to meet seasonal or short-term

workload conditions.” Doc. 44-2 at 19. A temporary worker is not an “employee” as

defined in the policy exclusions, id. at 17, which means that if Sanchez were a

temporary worker the exclusions would not apply. The allegation in the underlying

complaint that Sanchez was an “invitee” who was “working with” FFBC is consistent

with the idea that he was a temporary worker rather than an employee. See Doc. 44-1

¶¶ 3, 78. Given that all doubts must be resolved in favor of the insured, the Court

cannot say it is “undisputed” that Sanchez was not a temporary worker. See Southern-

Owners Ins. Co. v. Florida Construction Svcs., Inc., 569 F.Supp.3d 1186, 1198 (M.D. Fla.

2021) (Jung. J.) (in related action involving the same accident, noting that Sanchez

“was obviously an employee of one or more parties,” but that “it is not undisputed or

certain that [he] was an employee of [FFLLC] or [FFBC], or whether he was a

temporary worker of either.”).4

Because it is not undisputed that Sanchez was an employee of FFLLC, rather

than an employee of FFBC or a temporary worker of either, the exception to the eight

corners rule does not apply, and the Court is bound by the eight corners of the

complaint and policy. Even if the allegations in the complaint that Sanchez was

working with FFBC turn out to be “factually incorrect or meritless,” see Jones, 908

So.2d at 443, First Mercury cannot establish that it has no duty to defend. First

Mercury is therefore not entitled to summary judgment.

In any event, the Court finds that the extrinsic evidence would not preclude the

possibility of coverage even if the Court were permitted to consider it. First Mercury

has a duty to defend unless there is no doubt that the allegations in the underlying suit

do not fall within the policy’s coverage. Lawyers Title Ins. Corp. v. JDC (Am.) Corp., 52

F.3d 1575, 1580-81 (11th Cir. 1995). Any doubts about whether First Mercury has an

obligation to defend must be resolved in favor of the insured. Jones, 908 So.2d at 443.

Further, First Mercury carries the burden of demonstrating that the allegations fall

4 First Mercury correctly points out that the burden to prove that an exception to a policy

exclusion applies shifts back to the insured, and FFLLC has not provided any evidence to

support its claim that Sanchez may be a temporary worker. Doc. 93 at 8-9; see LaFarge Corp.

v. Travelers Indem. Co., 118 F.3d 1511, 1516 (11th Cir. 1997). However, as noted infra, First

Mercury has a duty to defend unless there is no doubt that the allegations in the underlying

suit do not fall within the policy’s coverage. Lawyers Title Ins. Corp. v. JDC (Am.) Corp., 52 F.3d

1575, 1580-81 (11th Cir. 1995). Because allegations in the underlying complaint are consistent

with a theory that he was a temporary worker, regardless of extrinsic evidence, First Mercury

has a duty to defend.

entirely within a policy exclusion. Hartford Accident and Indem. Co. v. Beaver, 466 F.3d

1289, 1296 (11th Cir. 2006). First Mercury has not met that burden.

First Mercury argues that the extrinsic evidence shows there is no possibility of

coverage because it proves that Sanchez was an employee of FFLLC, thereby placing

the underlying lawsuit squarely within the policy’s exclusions for employer’s liability

and, indirectly, workers’ compensation. See Doc. 74. The question of an

employer/employee relationship is generally a question of fact, and therefore a

question for the trier of fact. See, e.g., Pate v. Gilmore, 647 So.2d 235, 236 (Fla. 1st DCA

1994). The Court may determine this question on summary judgment only if no

reasonable view of the evidence—viewed in the light most favorable to Defendants,

the non-movants—would permit the conclusion that Sanchez was not an employee as

the term is defined in the policy. See, e.g., Nationwide Mut. Fire Ins. Co. v. Kaloust

Financial, LLC, 8:12-cv-235-VMC-MAP, 2013 WL 3270410, *5 n.4 (M.D. Fla. June

26, 2013) (Covington, J.).

In support of its argument that Sanchez was FFLLC’s employee, First Mercury

has offered payroll records, paystubs, and W-2s demonstrating that Sanchez was paid

by FFLLC. Docs. 73-3, 73-7, 73-8, 73-9, 73-10, 73-11.5 First Mercury has also

5 The parties assert that some of the extrinsic evidence offered by their adversary is

inadmissible on summary judgment for different reasons. These arguments are meritless.

FFLLC challenges the authenticity, though not the admissibility, of First Mercury’s

Exhibits B, F, G, I, J, and L (Docs 73-3, 73-7, 73-8, 73-10, 73-11, 73-13) because First Mercury

“has not introduced [them] through a method authorized by Rule 56” of the Federal Rules of

Civil Procedure. Doc. 91 at 3-5. Specifically, FFLLC appears to argue that First Mercury did

not provide supporting affidavits to authenticate the documents. Id. at 3-4. However, Rule

56 was amended in 2010 to eliminate the requirement for authentication through affidavits at

provided several statements, both sworn and unsworn, by the president of both FFBC

and FFLLC affirming that Sanchez was not an employee of FFBC. Docs. 73-12, 73-

13; see also Doc. 93-2 (FFBC’s motion for summary judgment in the underlying lawsuit

denying its employment of Sanchez). In response, Sanchez offers his employment

application, which lists FFLLC in the heading, as well as an OSHA report that

repeatedly identifies FFLLC as his employer. Docs. 89-1, 89-2.6 The records offered

by both parties are in clear contradiction to each other, demonstrating a genuine

the summary judgment stage. See Fed. R. Civ. P. 56(c)(4) advisory committee’s note to 2010

amendment. Moreover, as First Mercury correctly points out, FFLLC itself produced most

of the challenged documents, which are FFLLC’s own records, in discovery. Doc. 93 at 3.

See Slone v. Judd, 8:09-cv-1175-T-27TGW, 2011 WL 1124618, *2 (M.D. Fla. March 25, 2011)

(Whittemore, J.) (party cannot challenge the authenticity of a document it produced in

discovery). FFLLC offers no specific basis to question the authenticity of the challenged

evidence. The Court will consider this evidence for the purpose of summary judgment.

In turn, First Mercury challenges the admissibility, though not the authenticity, of one piece

of evidence submitted by Sanchez: records from an investigation by the Occupational Safety

and Health Administration (OSHA). Doc. 89-1; 89-2; see Doc. 93 at 6-8. First Mercury argues

that the OSHA records are inadmissible hearsay, because they lack the trustworthiness that is

required of reports admitted under the public records exception to hearsay. Id.; see Doc. 89 at

11 n.7 (asserting the OSHA records satisfy the public records exception). In support, First

Mercury points out various places where the records identify Sanchez’s employer as FFBC

rather than FFLLC. Id. at 7. However, as noted supra, the Court rejects First Mercury’s

characterization of the identity of Sanchez’s employer as “undisputed,” and thus cannot

conclude that the records are inherently untrustworthy because they contain evidence

contrary to First Mercury’s preferred theory. First Mercury’s challenges to the contents of the

OSHA records go to their weight rather than their admissibility, because they do not render

the records inherently untrustworthy such that the public records exception should not apply.

This evidence is not inadmissible hearsay.

6 Sanchez also argues that First Mercury’s evidence is insufficient because evidence of

payment is not the only factor considered when determining whether someone is an

employee. Doc. 89 at 10. This argument is unpersuasive. The caselaw and factors Sanchez

raise for this argument relate to the determination of whether someone is an employee or an

independent contractor. See Kane Furniture Corp. v. Miranda, 506 So.2d 1061 (Fla. 2d DCA

1987). Here, however, the fact that Sanchez received W-2s rather than 1099s precludes the

possibility that he was an independent contractor, nor does any party—including Sanchez—

assert that he was.

dispute of material fact regarding the identity of Sanchez’s employer. Viewing all of

the records in the light most favorable to Sanchez, the Court does not find that the

only reasonable view of the evidence compels the conclusion that Sanchez was an

employee of FFLLC. Summary judgment therefore would not be warranted for First

Mercury on the issue of its duty to defend FFLLC even if the Court could consider

extrinsic evidence.

In light of the Court’s conclusion that the allegations in the underlying

complaint must be viewed alone when determining whether First Mercury has a duty

to defend FFLLC, the Court agrees with Sanchez’s assertion that First Mercury’s

motion for partial summary judgment on the duty to defend issue presents an “either

or” proposition. See Doc. 94. Accordingly, pursuant to Rule 56(f)(1) of the Federal

Rules of Civil Procedure, First Mercury must show cause why summary judgment on

the duty to defend issue should not be granted in favor of FFLLC. See Burton v. City of

Belle Glade, 178 F.3d 1175, 1204 (11th Cir. 1999) (“A district court possesses the power

to enter summary judgment sua sponte provided the losing party ‘[is] on notice that she

had to come forward with all of her evidence.’”), quoting Celotex Corp. v. Catrett, 477

U.S. 317, 326 (1986).

B. Duty to Indemnify

First Mercury also requests summary judgment on the issue of its duty to

indemnify FFLLC. In addition, First Florida has filed a Motion for Reconsideration

regarding the Court’s denial of its motion to stay the declaratory judgment proceedings

on the issue of First Mercury’s duty to indemnify. The Court will discuss both pending

motions related to the duty to indemnify in turn.

In its Motion for Partial Summary Judgment, First Mercury relies on its

argument that there is no duty to defend to assert that summary judgment is also

warranted on the question of its duty to indemnify. Doc. 74 at 20-21. Because a duty

to indemnify cannot exist if there is no duty to defend, see Health First, Inc. v. Capitol

Specialty Ins. Corp., 747 F. App’x 744, 750 (11th Cir. 2018), First Mercury argues that

it has also proven that no duty to indemnify exists. Doc. 74 at 21.

In its Motion for Reconsideration of its motion to stay, First Florida argues that

the Court erred in finding that the indemnity issue is not premature because Sanchez’s

losses are ripe for review, as the underlying lawsuit is ongoing and has not been

resolved. Doc. 60 at 2. First Florida also asserts that manifest injustice would occur if

it were required to litigate indemnity issues while the underlying lawsuit is ongoing.

Id. Further, directing the Court’s attention to a decision to stay the indemnity issue by

another district judge in a related action, First Florida argues that litigating the

indemnity issue in the instant action risks inconsistent outcomes. Id. at 3-4; see also

Doc. 106 (notifying Court of other district judge’s continued stay).

In response, First Mercury argues that First Florida is merely repeating

arguments from its original motion rather than identifying a new legal or factual basis

to justify reconsideration. Doc. 68 at 2, 5-6. The Court’s original ruling was correct,

in First Mercury’s view, because it is consistent with the body of caselaw holding that

an indemnity question is ripe where facts outside of the pleadings demonstrate that

coverage is clearly excluded from the policy. Id. at 6-7. First Mercury also notes that

the motion to stay in the related action was unopposed, a fact it argues distinguishes

the two cases. Id. at 9.

The parties agree that the duty to indemnify is distinct from and narrower than

the duty to defend. Mid-Continent Cas. Co. v. Delacruz Drywall Plastering & Stucco, Inc.,

766 F. App'x 768, 770 (11th Cir. 2019); see Doc 74 at 20, Doc. 89 at 5. Unlike the duty

to defend, the duty to indemnify is determined by looking at the “actual facts, not only

those that were alleged in the state court complaint.” Stephens v. Mid-Continent Cas. Co.,

749 F.3d 1318, 1324 (11th Cir. 2014). Accordingly, this Court’s conclusion that

summary judgment is not warranted on the question of duty to defend does not

necessarily govern its conclusion regarding the duty to indemnify.

In light of the Court’s evaluation of the evidence regarding the duty to defend,

however, reconsideration of its prior order denying a stay of the duty to indemnify

issue is warranted. Courts in this circuit have overwhelmingly held that the question

of an insurer’s duty to indemnify is not ripe until the underlying lawsuit is resolved or

the insured’s liability is established, because unless and until that occurs there is no

judgment to indemnify. Delacruz, 766 F. App'x 768, 770; see also Nat’l Union Fire Ins.

Co. of Pittsburgh, PA v. Shaw Development, LLC, 2:21-cv-658-SPC-NPM, 2021 WL

4913357, *1 (M.D. Fla. Oct. 21, 2021) (duty to indemnify claim is unripe until state

court case ends); Contintental Ins. Co. v. Nationwide Ins. Co. of Am., 6:20-cv-1439-WWB-

DCI, 2021 WL 8894460, *5 (M.D. Fla. Sept. 28, 2021) (entering a summary judgment

finding that there is a duty to defend, and dismissing duty to indemnify claim without

prejudice as premature until underlying litigation is resolved); AIX Specialty Ins. Co. v.

Everett, 543 F.Supp.3d 1321, 1333 (M.D. Fla. 2021) (Honeywell, J.) (declaratory

judgment proceeding on duty to indemnify is premature until resolution of underlying

litigation); RLI Ins. Co. v. Baywalk Title Inc., 8:20-cv-1143-MSS-AEP, 2020 WL

6742789 (M.D. Fla. Nov. 2, 2020) (Scriven, J.) (dismissing without prejudice request

for declaration as to duty to indemnify as premature because state court action remains

pending); RLI Ins. Co. v. Coastline Title of Pinellas, Inc., 8:20-cv-786-SDM-CPT, 2020

WL 9172022 (Merryday, J.) (same); Depositors Ins. Co. v. Loan Ranger Acquisitions, LLC,

457 F.Supp.3d 1255, 1261 (M.D. Fla. 2020) (Barber, J.) (same); Evanston Ins. Co. v.

Boone, 8:17-cv-2747-SCB-CPT, 2019 WL 5319237, *3 (M.D. Fla. Oct. 21, 2019)

(Bucklew, J.) (denying motion for reconsideration of its conclusion that a

determination of whether insurer has a duty to indemnify the insureds is not ripe for

review until insured’s liability in ongoing state court proceeding is established).

An exception to the prematurity of the indemnity issue is where “the court can

determine that the allegations in the complaint could under no circumstances lead to a

result which would trigger the duty to indemnify.” Northland Cas. Co. v. HBE Corp., 160

F.Supp.2d 1348, 1360 (M.D. Fla. 2001) (emphasis added). In AIX Specialty Ins. Co. v.

Night Industry, Inc., 6:20-cv-225-PGB-EJK, 2020 WL 8187752, *6 (M.D. Fla. Dec. 9,

2020), for example, the court found that the duty to indemnify question was ripe for

review where the insured parties could not identify any injury that occurred during the

policy period, which meant that there were no circumstances that would oblige the

insurer to indemnify any liability for the injury. See also Amerisure Ins. Co. v. Walker, 11-

61480-CV, 2011 WL 5597325, *3 (S.D. Fla. Nov. 17, 2011) (no duty to defend or

indemnify where injured party stated in underlying complaint that he was an

employee, triggering employer’s liability exclusion); Scottsdale Ins. Co. v. GFM

Operations, Inc., 789 F. Supp. 2d 1278, 1288-89 (S.D. Fla. 2011) (finding no duty to

indemnify because employer’s liability exclusion applied where there was no evidence

in the record that injured party, who was operating a forklift, was on the premises as a

patron rather than as an employee); Sinni v. Scottsdale Ins. Co., 676 F.Supp.2d 1319,

1333 (M.D. Fla. 2009) (where the actual facts revealed there was “no question” the

injured party was on the premises as an employee, the insurer had no duty to

indemnify as a matter of law).

Here, as discussed in Section A(3), supra, the Court has found that the identity

of Sanchez’s employer and his employment status at the time of his injury are disputed.

Given the competing evidence in the record, the Court cannot conclude that there are

no circumstances in which the allegations in the underlying complaint would lead to

a duty to indemnify. The Court therefore reconsiders its prior holding under Federal

Rule of Civil Procedure 59(e) in light of its conclusion on the motion for partial

summary judgment, and finds that the indemnity issue is not ripe for review. The

Motion for Reconsideration is granted, and summary judgment on the indemnity issue

is denied without prejudice. The indemnity issue will be stayed until the claims against

FFBC and FFLLC are resolved.

Accordingly, it is ORDERED:

1. Plaintiff First Mercury’s Motion for Partial Summary Judgment (Doc. 74) is

DENIED.

2. Plaintiff First Mercury shall show cause why summary judgment regarding

its duty to defend First Florida, LLC, should not be granted in favor of First

Florida, LLC, pursuant to Federal Rule of Civil Procedure 56(f)(1), within

fourteen (14) days from the date of this Order.

3. Defendant First Florida’s Motion for Reconsideration (Doc. 60) is

GRANTED.

4. This action is STAYED as to Plaintiff First Mercury’s request for a judgment

declaring that it has no duty to indemnify First Florida Building Co. and

First Florida, LLC, in the underlying lawsuit pending resolution thereof.

Any party may move to lift the stay at any time, as appropriate.

DONE and ORDERED in Tampa, Florida on September 2, 2022.

Chae Aa towed Nore A gl yell

Charlene Edwards Honeywell

United States District Judge

Copies furnished to:

Counsel of Record

Unrepresented Parties