# Travelers Property Casualty Company of America v. H.E. Sutton Forwarding Co., LLC

> District Court, M.D. Florida · August 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10113762

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10113762

## How later opinions describe it (automated extraction)

- 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

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA,

Petitioner,

v. Case No: 2:21-cv-719-JES-KCD

H.E. SUTTON FORWARDING CO.,
LLC, D/B/A TEX SUTTON
EQUINE AIR TRANSPORTATION,

Respondent.

OPINION AND ORDER
This case comes before the Court on petitioner’s Second Motion
for Final Summary Judgment (Doc. #44) filed on June 16, 2023.
Respondent filed a Response in Opposition (Doc. #47) on July 17,
2023, to which Petitioner Replied (Doc. #51) on July 31, 2023.
With permission of the Court, Respondent filed a Sur-Reply in
Opposition (Doc. #54) on August 14, 2023. For the reasons set
forth below, the motion is granted.
This action arises in the context of an insurance coverage
dispute. Petitioner Travelers Property Casualty Company of America
(Petitioner or Travelers) seeks a declaration that it does not owe
a duty to defend or a duty to indemnify respondent H.E. Sutton
Forwarding Co., LLC, D/B/A Tex Sutton Equine Air Transportation
(Respondent or Tex Sutton) in a particular aircraft versus tractor
trailer accident case filed in state court. (Doc. #1; Doc. #1-
2.) Travelers moves for summary judgment for a second time,
arguing that there is no coverage for damages sought in the state
lawsuit due to an Aircraft Liability Exclusion, and that the
Exclusion is not “illusory.” (Doc. #44.)
I.

Motions for summary judgment should only be granted 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). “An issue of fact is
‘genuine’ if the record taken as a whole could lead a rational
trier of fact to find for the nonmoving party.” Baby Buddies,
Inc. v. Toys “R” Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).
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

(1986). The moving party bears the initial burden of showing the
court, by reference to materials on file, that there are no genuine
issues of material fact that should be decided at trial. Hickson
Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir.
2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
“When a moving party has discharged its burden, the non-moving
party must then ‘go beyond the pleadings,’ and by its own
affidavits, or by ‘depositions, answers to interrogatories, and
admissions on file,’ designate specific facts showing that there
is a genuine issue for trial.” Jeffery v. Sarasota White Sox,
Inc., 64 F.3d 590, 593–94 (11th Cir. 1995) (citing Celotex, 477
U.S. at 324). “A court must decide ‘whether the evidence presents
a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter
of law.’” Hickson, 357 F.3d at 1260 (quoting Anderson, 477 U.S.
at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana
v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). However, “if
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983))
(finding summary judgment “may be inappropriate even where the
parties agree on the basic facts, but disagree about the factual
inferences that should be drawn from these facts.”)).
Under Florida law1, the interpretation of an insurance policy
is a pure question of law to be decided at the summary judgment
stage. AIX Specialty Ins. Co. v. Members Only Mgmt., LLC, 793 F.
App'x 1001, 1002 (11th Cir. 2019); Coleman v. Fla. Ins. Guar.
Ass’n, Inc., 517 So. 2d 686, 690 (Fla. 1988). The Florida Supreme

Court has consistently held that "in construing insurance
policies, courts should read each policy as a whole, endeavoring
to give every provision its full meaning and operative effect."
Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000).
See also Wash. Nat'l Ins. Corp. v. Ruderman, 117 So. 3d 943, 948
(Fla. 2013). Where “a policy provision is clear and unambiguous,
it should be enforced according to its terms.” Taurus Holdings,
Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005).
II.
A. Factual Background
The Court’s Opinion and Order on Travelers’ first motion for

summary judgment (Doc. #31) sets forth the basic background facts2:

1 This is a diversity action and the parties do not dispute
that the challenged contract was issued and delivered in Florida,
so Florida law controls. Westchester Gen. Hosp., Inc. v. Evanston
Ins. Co., 48 F.4th 1298, 1302 (11th Cir. 2022); Tech. Coating
Applicators, Inc. v. U.S. Fid. & Guar. Co., 157 F.3d 843, 844 (11th
Cir. 1998). See also State Farm Mut. Auto. Ins. Co. v. Roach, 945
So. 2d 1160, 1163 (Fla. 2006).
2 The background facts which were set forth in the Opinion
and Order on Petitioner’s first motion for summary judgment are
On March 12, 2020, Antonio de Jesus Zepeda (Mr. Zepeda)
was injured when operating a tractor trailer in the
course of his employment with Brook Ledge Horse
Transportation. (Doc. #24, ¶ 1; Doc. #1-2.) Mr. Zepeda
was picking up horses and equipment for his employer
from an aircraft at Blue Grass Airport in Lexington,
Kentucky. (Doc. #1-2, ¶¶ 12-14.) The aircraft – a
Boeing 727-200 known as “Air Horse One” – was owned by
Kalitta Charters, II, LLC (Kalitta) and chartered by Tex
Sutton. (Doc. #24, ¶ 2; Doc. #24-1.) After picking up
his load, Mr. Zepeda began exiting the premises and, due
to an obscured view, collided with the aircraft’s wing
and sustained injuries. (Doc. #1-2, ¶¶ 17-19.)

On August 31, 2020, Mr. Zepeda and Victoria Zepeda (the
Underlying Plaintiffs) filed a personal injury action,
Antonio DeJesus Zepeda v. H.E. Sutton Forwarding Co.,
LLC, et al., Case No. 20-CI-02602, Fayette Circuit Court
Division, Commonwealth of Kentucky (the Underlying
Action). (Doc. #24, ¶ 3; Doc. #1-2.) In the Underlying
Action, the Underlying Plaintiffs seek damages from Tex
Sutton for negligence; negligent hiring, retention,
entrustment, supervision and training; negligent
infliction of emotional distress; and gross negligence,
willful or wanton misconduct, malice and recovery of
punitive or exemplary damages.

Relevant to this lawsuit is an Excess Follow-Form and
Umbrella Policy (Excess Policy) issued by Travelers to
Clark Aviation Corporation (“Clark”) for a period of May
21, 2019 through May 21, 2020. (Doc. #24, ¶ 4; Doc. #24-
2.) The Excess Policy includes two separate coverage
parts, Coverage A – Excess Follow-Form Liability and
Coverage B – Umbrella Liability. (Doc. #24-2, pp. 11-
13.)

. . .

The underlying insurance to the Excess Policy is Policy
No. 3589-79-35 ECE (Underlying Policy), which was issued
by Federal Insurance Company (Chubb) to Clark. (Id. p.
64.) On February 25, 2021, Tex Sutton requested coverage
under the Underlying Policy and the Excess Policy for

either undisputed or read in the light most favorable to Respondent
as the nonmoving party.
the damages sought in the Underlying Action. (Doc. #1,
¶ 17; Doc. #8, ¶ 17.) Chubb agreed to defend Tex Sutton
under a reservation of rights. (Doc. #24, ¶ 14, Doc.
#28, ¶ 8.) Travelers, also reserving its rights,
recognized that Tex Sutton was a covered insured for
purposes of Coverage A because Tex Sutton was a covered
insured under the Underlying Policy, but advised Tex
Sutton that coverage was barred based on the aircraft
exclusions. (Doc. #1, ¶ 11; Doc. #8, ¶ 11; Doc. #1-4,
p. 9.)

(Id., pp. 3-7.)

B. Procedural Background
On September 28, 2021, Travelers filed a Petition For
Declaratory Relief with the Court pursuant to 28 U.S.C. § 2201.
(Doc. #1.) Respondent filed their Answer (Doc. #8) on January 25,
2022. Travelers moved for summary judgment on April 28, 2022,
arguing that no coverage for damages sought in the Underlying
Action is available to Tex Sutton under the Excess Policy and that
Travelers is entitled to judgment as a matter of law. (Doc. #24.)
Upon consideration of Travelers’ motion for summary judgment, this
Court found that denial of the motion was appropriate. (Doc. #31.)
The Court agreed with Travelers that Tex Sutton qualified as a
covered insured under Coverage A of the Excess Policy and that the
“Aircraft Liability Exclusion” applied to the Underlying Action.
(Id., pp. 9-12.) The Court, however, found there was merit to Tex
Sutton’s argument — that Travelers’ interpretation of the Aircraft
Liability Exclusion “would render the coverage illusory” since it
would eliminate virtually all coverage as Tex Sutton’s business
involves the use of an aircraft. (Id., p. 12.) The Court noted
that
The intent of Coverage A is to provide excess liability
coverage to the insured provided that the “underlying
insurance” would apply to such damages. (Doc. #24-2, p.
11.) The Underlying Policy is not part of the record, so
the Court cannot determine, as a matter of law, whether
the policy is or is not illusory. For example, if the
intent of the Underlying Policy is to cover Tex Sutton’s
liabilities arising out of the use of an aircraft, the
Aircraft Liability Exclusion would completely negate any
claim for excess coverage, rendering the policy
“complete nonsense.” Purrelli v. State Farm Fire & Cas.
Co., 698 So. 2d 618, 620 (Fla. 2d DCA 1997) (citation
omitted) (policy which purported to cover certain
intentional torts, but excluded intended acts,
illusory).

(Id., p. 14.) In sum, the Court found that while the Policy may
ultimately not be illusory, Travelers failed to carry its summary
judgment burden of showing there are no genuine issues which may
be resolved as a matter of law. (Id.)
On September 21, 2022, Travelers filed a Motion for
Reconsideration, or Alternatively, Leave to File Second Motion For
Summary Judgment. (Doc. #32.) Travelers sought reconsideration of
the Court’s Opinion and Order denying summary judgment asserting
that the “intent” of the Underlying Policy was irrelevant to the
resolution of Tex Sutton’s illusory coverage argument, and that
the Aircraft Liability Exclusion does not “completely contradict”
the insuring provision of the Excess Policy such that it would
render the policy illusory. (Id., pp. 5-7.) In the alternative,
Travelers requested leave to file a second motion for summary
judgment to address the illusory coverage argument raised by Tex
Sutton. (Id., p. 10.) The Court denied Travelers’ motion for
reconsideration (Doc. #43, p. 11), but in the interest of judicial
economy, granted its request for leave to file a second motion for
summary judgment.
Petitioner moves a second time for summary judgment arguing

that it is entitled to a declaration that it owes no duty to defend
or indemnify Tex Sutton under Coverage A of the Excess Policy
because the “Aircraft Liability Exclusion” does not render
coverage “illusory.” (Doc. #44, pp. 2-3.) Respondent Tex Sutton
argues that Travelers has failed to carry its summary judgment
burden of showing there are no genuine issues of fact which may be
resolved as a matter of law regarding whether the coverage at issue
is illusory. (Doc. #47, p. 1.)
III.
As noted above, Travelers’ Excess Policy includes two
separate coverage parts, Coverage A — Excess Follow-Form Liability

and Coverage B3 – Umbrella Liability.

3 In its previous Opinion and Order on Travelers’ first motion
for summary judgment, the Court found Tex Sutton failed to address
Travelers’ argument that Coverage B did not apply to Tex Sutton
because Tex Sutton was not listed as a “Named Insured” for purposes
of Coverage B, and in doing so, waived any argument to the
contrary. (Doc. #31, p. 5 n. 2.) While Travelers reiterates the
same argument as to Coverage B in its second motion for summary
judgment, Tex Sutton again offers no countervailing argument.
Thus, the Court omits any discussion of Coverage B.
Coverage A of the Travelers Excess Policy provides:

SECTION I - COVERAGES
A. COVERAGE A - EXCESS FOLLOW-FORM LIABILITY

1. We will pay on behalf of the insured those
sums, in excess of the “applicable underlying
limit”, that the insured becomes legally
obligated to pay as damages to which Coverage
A of this insurance applies, provided that the
“underlying insurance” would apply to such
damages but for the exhaustion of its
applicable limits of insurance. If a sublimit
is specified in any “underlying insurance”,
Coverage A of this insurance applies to
damages that are in excess of that sublimit
only if such sublimit is shown for that
“underlying insurance” in the Schedule Of
Underlying Insurance.
2. Coverage A of this insurance is subject to
the same terms, conditions, agreements,
exclusions and definitions as the “underlying
insurance”, except with respect to any
provisions to the contrary contained in this
insurance [emphasis added].
(Doc. #24-2, p. 11.)
Coverage A is subject to the Aircraft Liability Exclusion:

With respect to COVERAGE A – EXCESS FOLLOW-
FORM LIABILITY, the following exclusion is
added to SECTION IV -EXCLUSIONS:
Aircraft

Damages arising out of the ownership,
maintenance, use or entrustment to others of
any aircraft owned or operated by or rented or
loaned to any insured. Use includes operation
and “loading or unloading”.
This exclusion applies even if the claims
against any insured allege negligence or other
wrongdoing in the supervision, hiring,
employment, training or monitoring of others
by that insured, if the “occurrence” which
caused the “bodily injury” or “property
damage” involved the ownership, maintenance,
use or entrustment to others of any aircraft
that is owned or operated by or rented or
loaned to any insured.
(Id., p. 42.)
The Underlying (Chubb) Policy that was issued by Federal
Insurance Company to Clark and endorses Tex Sutton, as a named
insured, provides general liability coverage as follows:
COVERAGES

Bodily Injury and Property Damage Liability Coverage

Subject to all of the terms and conditions
of this insurance, we will pay damages that
the insured becomes legally obligated to pay
by reason of liability:

• imposed by law; or
• assumed in an insured contract;

for bodily injury4 or property damage5 caused
by an occurrence6 to which this coverage
applies.

This coverage applies only to such bodily
injury or property damage that occurs during

4 “Bodily Injury” is defined as physical “injury; sickness;
or disease; sustained by a person, including death, humiliation,
mental anguish, mental injury, sickness or disease that caused
it.” (Doc. #44-2, p. 56.)
5 “Property Damage” means “physical injury to tangible
property, including the resulting loss of use of that property .
. . or “loss of use of tangible property that is not physically
injured.” (Doc. #44-2, pp. 61-62.)
6 “Occurrence” is defined as “an accident, including
continuous or repeated exposure to substantially the same general
harmful conditions.” (Doc. #44-2, p. 60.)
the policy period.

. . .
Advertising Injury and Personal Injury Liability
Coverage

Subject to all terms and conditions of this insurance,
we will pay damages that the insured becomes legally
obligated to pay by reason of liability:

• imposed by law; or
• assumed in an insured contract;

for advertising injury7 or personal injury to
which this coverage applies.

This coverage applies only to such advertising
injury or personal injury8 caused by an offense

7 “Advertising Injury” means “injury, other than bodily
injury, property damage, or personal injury, sustained by a person
or organization and caused by an offense of infringing, in that
particular part of your advertisement about your goods, products
or services, upon their: copyrighted advertisement; or registered
collective mark, registered service mark or other registered
trademarked name, slogan, symbol or title.” (Doc. #44-2, p.
56)(emphasis in original.)
8 “Personal Injury” means injury, other than bodily injury,
property, damage, or advertising injury, caused by an offense of:
A. false arrest, false detention or other false
imprisonment;
B. malicious prosecution;
C. wrongful entry into, wrongful eviction of a person
from or other violation of a person’s right of private
occupancy of a dwelling, premises or room that such
person occupies, if committed by or on behalf of its
landlord, lessor or owner;
D. electronic, oral, written or other publication of
material that:

1. libels or slanders a person or organization
(which does not include disparagement of
goods, products, property or services); or
that is first committed during the policy
period.

. . .

(Doc. #44-2, p. 34)(emphasis in original)(footnotes added.)
The Underlying Policy also contains the following exclusions:
BODILY INJURY/PROPERTY DAMAGE EXCLUSIONS9
Aircraft, Autos Or Watercraft

This insurance does not apply to bodily injury
or property damage arising out of the
ownership, maintenance, use (use includes
operation and loading and unloading) or
entrustment to other of any:

• aircraft;
. . .
owned or operated by or loaned or rented to
any insured.

(Id., pp. 91-92)(emphasis in original.)

2. violates a person’s right of privacy; or

E. discrimination, harassment or segregation based on a
person’s age, color, national origin, race, religion
or sex.

(Doc. #44-2, pp. 60-61)(emphasis in original.)
9 As amended by the “Exclusion — Non-Owned Aircraft”
endorsement. (Doc. #44-2, pp. 91-92.)
IV.
A. Duty to Defend Principles
Since Travelers’ “duty to defend [under Florida law] is
separate and distinct from its duty to indemnify, and it is more
extensive” the Court begins its analysis here. Advanced Sys.,
Inc. v. Gotham Ins. Co., 272 So. 3d 523, 526–27 (Fla. 3d DCA 2019)

(citation omitted). As the Eleventh Circuit has recently
summarized:
Under Florida law, "an insurer's duty to defend its
insured against a legal action arises when the complaint
alleges facts that fairly and potentially bring the suit
within policy coverage." Jones v. Fla. Ins. Guar. Ass'n,
908 So. 2d 435, 442-43 (Fla. 2005). The duty to defend
is a broad one, broader than the duty to indemnify, and
"[t]he merits of the underlying suit are irrelevant."
Mid-Continent Cas. Co. v. Royal Crane, LLC, 169 So. 3d
174, 181 (Fla. 4th DCA 2015). We determine whether an
insurer has a duty to defend its insured based only on
"the eight corners of the complaint and the policy," id.
at 182, and only as the complaint's alleged facts are
"fairly read," Fun Spree Vacations, Inc., 659 So. 2d at
421. The "facts" we consider in evaluating the duty to
defend come solely from the complaint, regardless of the
actual facts of the case and regardless of any later
developed and contradictory factual record. Jones, 908
So. 2d at 442-43. "Any doubts regarding the duty to
defend must be resolved in favor of the insured," id. at
443, and "where a complaint alleges facts that are
partially within and partially outside the coverage of
an insured's policy, the insurer is not only obligated
to defend, but must defend that entire suit," Sunshine
Birds & Supplies, Inc. v. U.S. Fid. & Guar. Co., 696 So.
2d 907, 910 (Fla. 3d DCA 1997). But of course, because
the lawsuit must be for something covered by the
insurance policy, "the insurer has no duty to defend"
when "the pleadings show the applicability of a policy
exclusion." State Farm Fire & Cas. Co. v. Tippett, 864
So. 2d 31, 35 (Fla. 4th DCA 2003).
Travelers Indem. Co. of Conn. v. Richard Mckenzie & Sons, Inc., 10
F.4th 1255, 1261 (11th Cir. 2021). See also Westchester Gen. Hosp.,
Inc., 48 F.4th at 1302 (citing Keen v. Fla. Sheriffs' Self-Ins.
Fund, 962 So. 2d 1021, 1024 (4th Fla. DCA 2007)("However, an
insurer does not need to defend an insured if a policy exclusion
applies.”)).

B. Illusory Coverage Principles
An insurance policy can, without creating a conflict or
ambiguity, both provide coverage and exclude some things that might
otherwise fall within that coverage. Cynergy, LLC v. First Am.
Title Ins. Co., 706 F.3d 1321, 1327 (11th Cir. 2013). On the other
hand, an insurance policy's coverage becomes illusory if it “grants
coverage with one hand and then with the other completely takes
away the entirety of that same coverage. Completeness is key. When
limitations or exclusions completely contradict the insuring
provisions, insurance coverage becomes illusory.” Richard Mckenzie
& Sons, Inc., 10 F.4th at 1265-66 (citing Warwick Corp. v.

Turetsky, 227 So. 3d 621, 625 (Fla. 4th DCA 2017)(internal
quotations omitted)(emphasis in original)). Put another way, a
policy is illusory: (1) “only if a policy exclusion ‘swallow[s]
up’ an insuring provision”, or (2) when an exclusion “eliminates
all——or at least virtually all——coverage in a policy.” Zucker v.
U.S. Specialty Ins. Co., 856 F.3d 1343, 1352 (11th Cir. 2017);
Posada v. Aspen Specialty Ins. Co., No. 8:22-cv-1578-CEH-AAS, 2023
WL 2711538, 2023 U.S. Dist. LEXIS 55419, at *49 (M.D. Fla. Mar.
30, 2023).
If the policy is found to be illusory or ambiguous, it is
resolved "by ignoring the exclusion." Zucker, 856 F.3d at 1352
(citing Tire Kingdom, Inc. v. First S. Ins. Co., 573 So. 2d 885,
887 (Fla. 3d DCA 1990)). “But if the policy's coverage and

exclusion provisions do not negate one another, the coverage is
not illusory, and there is no ambiguity, so the plain language of
the exclusion controls.” See Richard Mckenzie & Sons, Inc., 10
F.4th at 1265 (citing Warwick Corp., 227 So. 3d at 625-26).
In its Opinion and Order on Petitioner’s first motion for
summary judgment, the Court found that Tex Sutton qualified as a
covered insured under Coverage A of the Excess Policy, and that
the Aircraft Liability Exclusion applies to the Underlying Action
(Doc. #31, pp. 9-11). Tex Sutton does not dispute that the
Aircraft Liability Exclusion applies. Instead, it claims that
this Exclusion is so broad that it renders coverage illusory

because Tex Sutton’s entire business involves one thing — the use
of an aircraft for the transportation of horses. Therefore, the
sole remaining issue before the Court is whether the coverage
provided by the Underlying Policy and Coverage A of the Excess
Policy is rendered “illusory” by the Aircraft Liability Exclusion,
thus invoking Travelers’ duty to defend or duty to indemnify.
V.
Travelers argues that while the Aircraft Liability Exclusion
applies in this case, the Exclusion does not render the Excess
Policy’s coverage illusory because it does not “swallow up” an
insuring provision nor does it “eliminate[] all——or at least
virtually all——coverage in a policy”; rather, the Excess Policy

(Coverage A) and the Underlying Policy provide potential coverage
for a variety of damages outside the scope of the Exclusion. (Doc.
#44, p. 2; Doc. #51, p. 3.) Plaintiff argues that under either
type of illusory coverage, Travelers’ motion for summary judgment
fails. The Court will address the parties’ arguments in turn
below.
A. Whether The Aircraft Liability Exclusion “Swallows Up” An
Insuring Provision

Travelers argues that application of the Excess Policy’s
Aircraft Liability Exclusion to the Underlying Policy does not
completely “swallow up” coverage because there is a myriad of other
claims within the broad insuring grant “for bodily injury or
property damage” that do not arise out of the “ownership,
maintenance or use” of an aircraft. (Doc. #51, p. 2.) Tex Sutton,
on the other hand, argues that the Aircraft Liability Exclusion’s
language – “damages arising out of the ownership, maintenance, use
or entrustment to others of any aircraft” – is so broad that it
“swallows up” the entire bodily injury coverage provision and
renders coverage illusory. (Doc. #47, pp. 12-13.) Tex Sutton’s
argument is based on its theory that since it is in the business
of transporting horses via aircraft, any claim for bodily injury
would necessarily “aris[e] out of” the use of aircraft, and thus
be barred under the Exclusion.
Tex Sutton’s argument fails, though, because the Aircraft

Liability Exclusion does not “swallow up” coverage. To render
coverage illusory, the exclusion must “completely contradict the
insuring provisions.” Interline Brands, Inc. v. Chartis Specialty
Ins. Co., 749 F.3d 962, 966 (11th Cir. 2014). If an exclusion does
not “completely swallow” the insuring provision, the policy is not
illusory, even if it is a significant exclusion. Warwick Corp.,227
So. 3d at 625.
While the Aircraft Liability Exclusion may exclude “damages
arising out of the ownership, maintenance, use or entrustment to
others of any aircraft . . . rented . . . to any insured” (including
“loading and unloading”) for coverage provided by the Underlying

Policy for damages because of “bodily injury” and “property damage”
caused by an “occurrence” (i.e., an accident), it does not swallow
every claim under the insuring provision. For example, as
Travelers notes, the Policy covers — and the Aircraft Liability
Exclusion does not negate coverage — for bodily injuries such as
slips and falls at Tex Sutton’s leased premises10, or property
damage due to Tex Sutton’s negligent maintenance of its leased
premises. (Doc. #44, pp. 12-13; Doc. #51, p. 4.) See, e.g., AIX
Specialty Ins. Co., 793 F. App’x at 1004 (a liquor liability
exclusion in a general liability policy issued to a night club was

a “significant exclusion” given the night club’s business, but did
not swallow up coverage); Goldberg v. Nat'l Union Fire Ins. Co.,
143 F. Supp. 3d 1283, 1301-02 (S.D. Fla. 2015)(a professional
services exclusion in a policy issued to a company offering banking
services was not illusory because it provided coverage for claims
not involving professional services); Md. Cas. Co. v. Smartcop,
Inc., No. 4:11-cv-10100-KMM, 2012 U.S. Dist. LEXIS 141757, at *20
(S.D. Fla. September 21, 2012)(a computer software exclusion in a
policy issued to a company whose primary responsibilities relate
to providing computer software to its customers was not illusory).
“[A]n insurance policy can both provide coverage and also exclude

some things that might otherwise fall within that coverage. That's
not a conflict. It's just an exclusion, and those are par for the
insurance course.” Richard McKenzie & Sons, Inc., 10 F.4th at 1265.
Thus, even though the Aircraft Liability Exclusion may take “a

10 The complaint in the Underlying Action alleges that Tex
Sutton maintains a facility at Blue Grass Airport, which it leases
from the Lexington-Fayette Urban County Airport Board. (Doc. #1-
2, ¶ 10.)
nibble, or even a big bite, out of [coverage],” it does not swallow
Tex Sutton’s coverage whole. Id. at 1266.
B. Whether The Aircraft Liability Exclusion “Eliminates All—
—Or At Least Virtually All——Coverage In A Policy”

The parties also disagree as to whether this case falls under
the common law "illusory coverage" doctrine that the Eleventh
Circuit has indicated is part of Florida's insurance law. Interline
Brands, Inc. v. Chartis Specialty Ins. Co., 749 F.3d 962, 966-67
(11th Cir. 2014) (applying Florida law). “In order for an
exclusion to render a policy's coverage illusory it must eliminate
all—or at least virtually all—coverage in a policy.” Zucker, 856
F.3d at 1352, citing Inerline Brands, Inc., 749 F.3d at 966-67)
("According to Interline, the Exclusion's broad scope reduces the
coverage Chartis sold to Interline to a 'façade' . . . . Interline
overstates the extent to which the Exclusion limits coverage. Even
with the broad Exclusion, the policy still contains extensive
coverage."); Great Am. E & S Ins. Co. v. End Zone Pub & Grill of
Narragansett, Inc., 45 A.3d 571, 576 (R.I. 2012) ("We will deem an
exclusion to an insurance policy illusory only when it would
preclude coverage in almost any circumstance.") (quotation marks
omitted); McGregor v. Allamerica Ins. Co., 449 Mass. 400, 868
N.E.2d 1225, 1228 (Mass. 2007) ("As long as an insurance policy
provides coverage for some acts, it is not illusory simply because
it contains a broad exclusion."); Point of Rocks Ranch, LLC v. Sun
Valley Title Ins. Co., 143 Idaho 411, 146 P.3d 677, 680 (Idaho
2006) ("An insurance policy's coverage is illusory if it appears
that if any actual coverage does exist it is extremely minimal and
affords no realistic protection to any group or class of injured
persons.") (quotation marks omitted)).
The Aircraft Liability Exclusion negates a lot of coverage,

but not “all—or at least virtually all—coverage.” As set forth
above, the Underlying Policy provides for damages resulting from
bodily injury, property damage, advertising injury, and personal
injury. Tex Sutton not only operates a business, but also occupies
leased premises at the Blue Grass Airport. The Aircraft Liability
Exclusion would not necessarily exclude claims based on premises
liability, bodily injury or property damage sustained at Tex
Sutton’s offices, or injury resulting from trademark or tradename
infringement, or defamation. Accordingly, the Travelers Policy is
not illusory under Florida law. See Interline Brands, 749 F.3d at
967 (exclusion was not void for being against public policy where

"[e]ven with the broad [e]xclusion, the policy still contains
extensive coverage”).
Accordingly, the Aircraft Liability Exclusion does not render
the coverage under the Excess Policy illusory, and Travelers is
entitled to summary judgment as to the same.
VI.
In its Complaint for Declaratory Judgment, Travelers sought
judgment declaring its obligations to Tex Sutton under the Excess
Policy, specifically its obligation to defend Tex Sutton in the
Underlying Action and its obligation to indemnify Tex Sutton
against loss for the damages sustained by Mr. Zepeda on March 12,

2020. For the reasons discussed below, the Court finds Travelers
does not have a duty to defend or to indemnify Tex Sutton in the
Underlying Action.
A. Travelers’ Duty to Defend Tex Sutton In the Underlying
Action

Since the Aircraft Liability Exclusion does not render the
coverage provided by the Excess Policy illusory as a matter of
Florida law, “the plain language of the [E]xclusion controls”,
Richard Mckenzie & Sons, Inc., 10 F.4th at 1265 (citing Warwick
Corp., 227 So. 3d at 625-26), and is applicable to the Underlying
Action. Travelers thus has no duty to defend Tex Sutton in the
Underlying Action. See Richard Mckenzie & Sons, Inc., 10 F.4th at
1261 (citing Tippett, 864 So. 2d at 35) (The lawsuit must be for
something covered by the insurance policy, "the insurer has no
duty to defend" when "the pleadings show the applicability of a
policy exclusion.")).
B. Travelers’ Duty To Indemnify Tex Sutton Against Loss For
The Damages Sustained By Mr. Zepeda

"[T]he duty to defend is broad and based on the allegations
in the complaint, the duty to indemnify is determined by the facts
adduced at trial or during discovery." Pa. Lumbermens Mut. Ins.
Co. v. Ind. Lumbermens Mut. Ins. Co., 43 So. 3d 182, 188 (Fla. 4th
DCA 2010). See also Pub. Risk Mgmt. of Fla. v. Munich Reinsurance
Am., Inc., 38 F.4th 1298, 1306 (11th Cir. 2022). Therefore, unlike
the duty to defend, the trial court must look beyond the
allegations in the underlying complaint to decide whether an
insurer has a duty to indemnify. The duty to indemnify arguably
may not become fully ripened until the merits of the underlying
litigation are resolved. Aetna Ins. Co. v. Borrell-Bigby Elec.
Co., 541 So.2d 139, 141 (Fla. 2d DCA 1989).
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. See, e.g., Nat'l Union Fire Ins. Co. of
Pittsburgh, Pa. v. Shaw Dev., LLC, 2:21-cv-658-SPC-NPM, 2021 U.S.
Dist. LEXIS 202973, 2021 WL 4913357, *1 (M.D. Fla. Oct. 21, 2021)
(duty to indemnify claim is unripe until state court case ends);
Cont’l Ins. Co. v. Nationwide Ins. Co. of Am., 6:20-cv-1439-WWB-
DCI, 2021 U.S. Dist. LEXIS 259064, 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) (declaratory judgment proceeding on duty to indemnify
is premature until resolution of underlying litigation).

However, an exception to the prematurity of the indemnity
issue arises when “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). See Amerisure Ins. Co. v. Walker, 11-61480-CV, 2011 U.S.
Dist. LEXIS 132959, 2011 WL 5597325, *3 (S.D. Fla. Nov. 17, 2011)
(no duty to defend or indemnify where the injured party stated in
underlying complaint that he was an employee, triggering
employer's liability exclusion); see also 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).
Here, the parties do not dispute the facts giving rise to the
Underlying Action, namely, that Mr. Zepeda was injured while
operating a tractor trailer to pick up horses and equipment
unloaded from an aircraft chartered by Tex Sutton, when his truck
collided with the aircraft’s wing. As this Court has found, the
Aircraft Liability Exclusion applies to the Underlying Action and
based upon the undisputed allegations in the underlying complaint
there are “no circumstances” that “trigger [Travelers’] duty to
indemnify.” Northland Cas. Co., 160 F. Supp. 2d at 1360.

Accordingly, it is now
ORDERED:
1. Petitioner Travelers Property Casualty Company of
America’s Second Motion for Final Summary Judgment (Doc.
#44) is GRANTED.
2. Petitioner has no duty to defend Respondent H.E. Sutton
Forwarding Co., LLC, D/B/A Tex Sutton Equine Air
Transportation in the underlying action, Antonio DeJesus
Zepeda v. H.E. Sutton Forwarding Co., LLC, et al., Case
No. 20-CI-02602, Fayette Circuit Court Division,
Commonwealth of Kentucky.

3. Petitioner has not duty to indemnify Respondent for the
damages sustained by Mr. Zepeda on March 12, 2020.
4. The Clerk of the Court shall enter judgment in favor of
Petitioner, terminate any pending deadlines, and close the
file.
DONE and ORDERED at Fort Myers, Florida, this 24th day of
August, 2023.

klob
JOHN E. STEELE
SHMIOR UNITED STATES DISTRICT JUDGE

Copies:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113762. Public record. Not legal advice.