United States Sugar Corporation v. Commerce and Industry Insurance Company

United States District Court

for the

Southern District of Florida

United States Sugar Corporation, )

Plaintiff, )

)

Civil Action No. 22-21737-Civ-Scola

v. )

)

Commerce and Industry Insurance )

Company, Defendant. )

Order

This matter is before the Court on Plaintiff United States Sugar

Corporation’s (“US Sugar”) motion for judgment on the pleadings. (Mot., ECF No.

13.) Defendant Commerce and Industry Insurance Company (“C&I”) has

responded in opposition. (Resp., ECF No. 18.) US Sugar has replied. (Reply, ECF

No. 39.) After careful consideration of the briefing, the record, and the relevant

legal authorities, the Court grants in part US Sugar’s motion for judgment on the

pleadings. (ECF No. 13.)

1. Background

This matter is a coverage dispute between US Sugar and its then-general

commercial liability insurer, C&I. The dispute arose over US Sugar’s defense of a

putative class-action lawsuit relating to US Sugar’s practice of pre-harvest

sugarcane burning (the “Underlying Lawsuit”). (Compl. ¶¶ 1-11, ECF No. 1.) US

Sugar pleads a single count for breach of contract against C&I, alleging that C&I

has breached the terms of the Umbrella Prime Commercial Umbrella Liability

Policy1 that US Sugar held with C&I by failing to pay US Sugar’s defense

expenses after those expenses exceeded the Policy’s “Self-Insured Retention” limit

of $1,000,000. (Compl. ¶¶ 99-103.) That Self-Insured Retention limit—a common

feature of commercial liability policies—requires US Sugar to bear responsibility

for the initial costs of liability under the Policy, much like a car insurance or

health insurance plan’s deductible. (Id. ¶ 4.) Although US Sugar ultimately

prevailed in the Underlying Lawsuit, it alleges that it incurred “the burden of

seven-figure attorneys’ fees and costs” after C&I denied coverage under the Policy

and that those costs should count against the Policy’s Self-Insured Retention

limit. (Id. ¶¶ 7-8.) The parties now dispute the application of the terms of the

Policy, specifically the Self-Insured Retention limit, to US Sugar’s incurred

attorneys’ fees and costs.

1 The “Policy” is identified as Policy Number 044212320 and attached as Exhibit E to the Complaint,

ECF No. 1-5.

The devil, of course, is in the details. Although the arguments made by the

parties regarding coverage for US Sugar’s expenses in the Underlying Lawsuit are

expansive and thorough, each side’s position can be summarized relatively

succinctly.

US Sugar argues that Endorsement 26 to the Policy, which modifies the

Policy’s basic terms regarding self-insured retention limits, controls the Policy’s

other terms and establishes that “Defense Expenses” erode the Policy’s Self-

Insured Retention limit for general liability of $1,000,000. (Mot. at 1-3.) Therefore,

US Sugar argues, the Policy requires that C&I cover any of US Sugar’s expenses

above and beyond the $1,000,000 retention incurred in defending the Underlying

Lawsuit. (Id.)

C&I, on the other hand, argues that Endorsement 23, which alters the

Policy’s standard language disclaiming coverage for pollution-related harms,

controls this dispute. (Resp. at 2-3.) And under the terms of Endorsement 23,

Defense Expenses do not erode the Self-Insured Retention limit. (Id.) Rather,

Endorsement 23 provides that C&I is responsible only to indemnify US Sugar for

actual liability expenses in excess of the Self-Insured Retention limit. (Id.) C&I

also argues that the motion for judgment on the pleadings is procedurally

improper, which the Court will address separately.

Neither party disputes that the damages sought in the Underlying Lawsuit

fit within the Policy’s “Pollution” exception to general liability. (Mot. at 4, 14-16;

Resp. at 8-10.) Nor does either party dispute, as a conceptual matter, that US

Sugar’s attorneys’ fees and defenses incurred defending the Underlying Lawsuit

qualify as “Defense Expenses” under the Policy. (Mot. at 11; Resp. at 8-12.) C&I

disputes whether US Sugar’s Defense Expenses exceeded the $1,000,000 Self-

Insured Retention limit, however. (Answer ¶¶ 8, 94, ECF No. 10; Resp. at 4-5.)

Central to the resolution of the motion are the terms of the Policy itself. US

Sugar attaches the Policy in its entirety to the complaint, and C&I does not

challenge the Policy’s authenticity. (Compl. Ex. E, ECF No. 1-5; see generally

Resp.) Comprising ninety-one pages, including declarations, terms, schedules,

and thirty-three separate endorsements modifying those declarations, terms, and

schedules, the Policy is hardly a model of simplicity.

Nevertheless, the Court will focus on the portions of the Policy that the

parties themselves identify as controlling: Item 5 of the Declarations (the original

Self-Insured Retention Limit, at page 5 of the Policy)2; Section I of the Terms (the

“Insuring Agreement,” at page 6); Subsection M of Section IV of the Terms (the

“Payment of Loss” provision, at pages 9-10) Subsection Q of Section V of the

Terms (the “Pollution Exclusion,” at pages 15-16); Subsection P of Section VII of

2 For ease of reference, the Court will refer to the page numbers stamped on the upper right-hand

side of the Policy by CM/ECF, as it is submitted at ECF No. 1-5.

the Terms (the definition of a “Loss,” at page 25); Endorsement 23, which modifies

Section V(Q), the Pollution Exclusion (at pages 72-74); and Endorsement 26,

which modifies Item 5 of the Declarations, the original Self-Insured Retention

Limit, among other provisions (at pages 78-82).

The Insuring Agreement of the Policy provides, among other items, the

following:

We [C&I] will pay on behalf of the Insured [US Sugar] those sums in excess

of the Retained Limit that the Insured becomes legally obligated to pay as

damages by reason of liability imposed by law because of Bodily Injury,

Property Damage or Personal Injury and Advertising Injury . . . . The

amount we [C&I] will pay is limited as described in Section IV. Limits of

Insurance.

(Policy § I(A), at 6.) In the Limits of Insurance Section, the Policy provides that

C&I will not make payments unless certain conditions are met, including the

following:

M. We will not make any payment under this policy unless and until:

1. the total applicable limits of Scheduled Underlying Insurance have

been exhausted by the payment of Loss to which this policy

applies and any applicable, Other Insurance have been exhausted

by the payment of Loss; or

2. the total applicable Self-Insured Retention has been satisfied by

the payment of Loss to which this policy applies.

(Id. § IV(M), at 9-10.) The Declarations establish the Self-Insured Retention limit

at $10,000. (Id. at 5.) Under the original terms, the Policy excludes from coverage

any damage caused by “Pollution,” which includes “the discharge, dispersal,

seepage, migration, release, or escape of Pollutants anywhere at any time.” (Id.

§ V(Q) at 15-16.) Finally, the Policy defines a Loss to mean “those sums actually

paid as judgments or settlements, provided, however, that if expenses incurred to

defend a Suit or to investigate a claim reduce the applicable limits of Scheduled

Underlying Insurance, then Loss shall include such expenses.” (Id. § VII(P), at 25.)

Endorsements 23 and 26 make several key changes to these essential

provisions.

First, Endorsement 23 deletes Subsection Q of Section V, the Pollution

Exclusion, and replaces it with a revised version that includes a new exception to

the pollution exclusion. (Policy, End. 23, at 72.) Under the revised terms, the

Policy will cover damages caused by Pollution if the Pollution is caused by certain

acts outside of US Sugar’s control or by accident, provided US Sugar complied

with certain other requirements. (Id. at 72-73.)

Second, Endorsement 23 amends Item 5 of the Declarations, the Self-

Insured Retention, to have a limit of $1,000,000. (Id. at 73.) This amendment to

the Self-Insured Retention explicitly states that “[t]his Self-Insured Retention will

not be reduced by Defense Expenses.” (Id.)

Third, Endorsement 23 contains no statement indicating that its terms

should be given greater or lesser priority than other, conflicting terms in the

Policy. (Id. at 72-74.)

Fourth, Endorsement 26 makes several wholesale changes to Item 5 of the

Declarations, the Limits of Insurance Section, and the definition of a Loss under

the Policy. Endorsement 26 states that the Self-Insured Retention contained in

Item 5 of the Declarations is “deleted in its entirety.” (Id., End. 26, at 78.) So, too,

is Subsection M of the Limits of Insurance Section. (Id.) The new Subsection M of

the Limits of Insurance Section states the following:

M. We [C&I] will not make any payment under this policy unless and until

the total applicable Retained Limit(s) and any applicable Other

Insurance have been exhausted by the payment of Loss to which this

policy applies. When the amount of Loss has been determined by an

agreed settlement or a final judgment, we will promptly pay on behalf of

the Insured the amount of such Loss falling within the terms of this

policy. An agreed settlement means a settlement and release of liability

signed by us, the Insured and the claimant or the claimant’s legal

representative.

(Id.) And, in place of the original Self-Insured Retention limit, Endorsement 26

inserts a “Schedule of Retained Limits” that sets the Self-Insured Retention limit

for general liability claims at $1,000,000. (Id. at 81.) Endorsement 26 also

changes the definition of a Loss to mean “those sums actually paid as judgments

or settlements, provided, however, that if the applicable Retained Limit is

specifically designated in the Schedule of Retained Limits as including Defense

Expenses, then Loss shall include such Defense Expenses.” (Id. at 80 (emphasis

added).) Finally, the new Schedule of Retained Limits expressly states that the

Self-Insured Retention limit for general liability is “inclusive of the Defense

Expenses.” (Id. at 81.)

Fifth, and perhaps most crucially, Endorsement 26 contains several

provisions that indicate when its provisions should control over other, conflicting

provisions of the Policy and when they should not. In a standalone provision

(Provision 14), Endorsement 26 states the following:

If another endorsement attached to this policy states specifically that the

provisions therein supercede [sic] any other terms, definitions, conditions,

and exclusions of any language in this policy or its endorsements, then

the provisions of such other endorsement apply irrespective of anything to

the contrary in the provisions of this endorsement. In all other cases, the

provisions of this endorsement apply notwithstanding anything to the

contrary in the other terms, definitions, conditions, and exclusions terms

and conditions of this policy.

(Id. at 81.) In other words, absent express statements to the contrary, the terms

of Endorsement 26 should be read to control over other, competing provisions in

the Policy, whether those competing provisions are the original terms of the Policy

or the terms of another Endorsement.

Endorsement 26 confirms this in another provision: like Endorsement 23,

Endorsement 26 contains a section amending Subsection Q of Section V, the

Pollution Exclusion. But Endorsement 26’s language modifying the Pollution

Exclusion also expressly defers to other modifications of the Pollution Exclusion,

stating that “the above amendments to Section V. Exclusions, Paragraph Q., do

not apply if a separate endorsement attached to this policy deletes and replaces

Section V. Exclusions, Paragraph Q.” (Id. at 79 (emphasis added).)

With each of these provisions in mind, the Court turns to the parties’

dispute regarding the meaning and application of the Self-Insured Retention limit

to US Sugar’s attorneys’ fees and costs incurred in defending the Underlying

Lawsuit.

2. Legal Standards

As set forth in Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings

are closed—but early enough not to delay trial—a party may move for judgment

on the pleadings.” Fed. R. Civ. P. 12(c). “Judgment on the pleadings is proper

when no issues of material fact exist, and the moving party is entitled to

judgment as a matter of law based on the substance of the pleadings and any

judicially noticed facts.” Cunningham v. Dist. Attorney's Office, 592 F.3d 1237,

1255 (11th Cir. 2010). “In determining whether a party is entitled to judgment on

the pleadings, the Court accepts as true all material facts alleged in the non-

moving party’s pleading and must view those facts in the light most favorable to

the non-moving party.” Roman v. Spirit Airlines, Inc., 482 F. Supp. 3d 1304, 1311

(S.D. Fla. 2020) (Ruiz, J.), aff’d, No. 20-13699, 2021 WL 4317318 (11th Cir. Sept.

23, 2021) (cleaned up). Further, a motion for judgment on the pleadings is

subject to the same analysis as a motion to dismiss pursuant to Rule 12(b)(6).

See Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998).

A court considering a motion to dismiss, filed under Federal Rule of Civil

Procedure 12(b)(6), must accept all of the complaint’s allegations as true,

construing them in the light most favorable to the plaintiff. See Pielage v.

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only

contain a short and plain statement of the claim showing that the pleader is

entitled to relief, a plaintiff must nevertheless articulate “enough facts to state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). “But where the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the complaint has alleged—

but it has not shown—that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556

U.S. 662, 679 (2009) (internal punctuation omitted) (quoting Fed. R. Civ.

P. 8(a)(2)). A court must dismiss a plaintiff’s claims if she fails to nudge her

“claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

While the Court must accept well-pleaded facts as true, it need not assume

the truth of conclusory allegations, nor are parties entitled to have the Court view

unwarranted deductions of fact or argumentative inferences in their favor. See,

e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d

929 (2007) (holding mere “labels and conclusions, and a formulaic recitation of

the elements of a cause of action” insufficient to survive motion to dismiss); see

also Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282 (11th Cir.

2007) (per curiam). A court may also properly consider documents attached to the

complaint, answer, or motion so long as they are (1) central to the plaintiff's

claim, and (2) undisputed. See Horsley v. Feldt, 304 F.3d 1125, 1134–1135 (11th

Cir. 2002); cf. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205–06 (11th Cir. 2007)

(including exhibits among factual allegations to be considered on 12(b)(6) motion

to dismiss, stating “when the exhibits contradict the ... allegations of the

pleading, the exhibits govern”). Regardless of a plaintiff’s allegations, “the court

may dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)

when, on the basis of a dispositive issue of law, no construction of the factual

allegations will support the cause of action.” Marshall Cnty. Bd. of Educ. v.

Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).

3. Analysis

The Court must address two issues. First, can it determine the meaning

and application of the Policy’s terms on a motion for judgment on the pleadings?

The Court finds that yes, it can determine the meaning of the Policy’s terms as a

matter of law—in other words, the motion for judgment on the pleadings is

procedurally proper. The Court cannot, however, make any determinations

regarding the parties’ dispute over the actual amount of US Sugar’s attorneys’

fees and costs incurred in defending the Underlying Suit at this stage.

Second, are the Policy’s terms clear, or are they ambiguous? And, if they

are clear, which party’s interpretation is correct? As discussed in greater detail

below, the Court finds that the Policy—although hardly a model of drafting—is

sufficiently clear that the Court can interpret it, and that US Sugar’s

interpretation is the correct one. US Sugar’s Defense Expenses incurred in the

Underlying Lawsuit erode the Self-Insured Retention limit. Alternatively, if the

Policy is ambiguous, then US Sugar’s interpretation is at least reasonable.

Therefore, Florida law compels the same outcome: C&I had a duty to defend US

Sugar in the Underlying Lawsuit once US Sugar’s Defenses Expenses exceeded

the Self-Insured Retention limit.3

A. C&I’s Procedural Objections Lack Merit

Before interpreting the terms of the Policy itself, the Court must address

C&I’s procedural objections to US Sugar’s motion. C&I asserts three objections

that are essentially intertwined. First, it argues, judgment on the pleadings is

improper because C&I has answered the complaint and denied essential factual

allegations in doing so. (Resp. at 3-4.) Second, it asserts, the Court cannot make

a partial determination of a matter of law on a motion for judgment on the

pleadings. (Id. at 4-5.) Third, it contends, judgment on the pleadings would be

inappropriate here because the Court would only be addressing one defense that

C&I has asserted, instead of all the defenses it has asserted. (Id. at 5-6.)

C&I is generally correct in its first and third assertions: the Court must

consider C&I’s answer, rather than US Sugar’s complaint, and the Court must

address all C&I’s defenses, if it is to wholly decide liability at this stage. Roman,

482 F. Supp. 3d at 1311. As such, the Court declines to address any allegation

that C&I disputes or any of C&I’s defenses to coverage. But neither party disputes

the authenticity of the Policy; indeed, in its answer, C&I admits that US Sugar

purchased the Policy from C&I. (Answer ¶ 58.) It similarly admits that the Policy

contains the language on which US Sugar relies. (Id. ¶¶ 60-66, 69-71, 73, 75-79,

84-86.)

This brings the Court to C&I’s second procedural argument—that the Court

cannot determine the meaning of the Policy alone, because deciding a “partial”

motion for judgment on the pleadings would be improper. C&I cites a recent case

from the Southern District of Florida supporting this proposition. Affordable

Aerial Photography, Inc. v. Abdelsayed, No. 21-81331-CIV, 2022 WL 1124795, at

*4-5 (S.D. Fla. Apr. 15, 2022) (Cannon, J.).

But, as US Sugar points out, the weight of authority in the Southern

District of Florida tends toward the other direction. (Reply at 5-6.) Judges in the

3 The Court is bound by Florida law in this diversity action. See, e.g., Silverberg v. Paine, Webber,

Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir. 1983).

Southern District generally find that they may decide partial issues, especially

matters of law, on motions for judgment on the pleadings. See, e.g., Simpson v.

Carnival Corp., No. 20-25253-CIV, 2021 WL 6428172, at *1 (S.D. Fla. Dec. 30,

2021) (Scola, J.) (granting partial judgment on the pleadings for defendant on

plaintiff’s claim for punitive damages as a matter of law); see also Monterey at

Malibu Bay Condo. Ass’n v. Empire Indem. Ins. Co., No. 19-23353-CIV, 2020 WL

8816345, at *2 (S.D. Fla. Aug. 18, 2020) (Louis, Mag. J); (“Partial judgment on the

pleadings is appropriate where the relief sought by plaintiff exceeds that which is

available under the claims as he has plead them.”) (citing Lenhart v. Printing

Indus. Ins. & Health Care Plan, 818 F. Supp. 331, 331 (M.D. Fla. 1993); Cap.

Growth Fin. LLC v. Quanta Specialty Lines Ins. Co., No. 07-80908-CIV, 2008 WL

2949492, at *1 (S.D. Fla. July 30, 2008) (Hurley, J.). And, significantly, the

Eleventh Circuit has approved of district court opinions that granted partial

judgment on the pleadings. See, e.g., Gemini Ins. Co. v. Castro, 723 F. App’x 797,

801-02 (11th Cir. 2018). The Court finds the reasoning in Aerial Photography to

be unpersuasive and chooses instead to follow the weight of authority in the

Southern District of Florida allowing partial judgment on the pleadings.4

B. Defense Expenses Erode the Policy’s Self-Insured Retention Limit for

General Liability Coverage, Including for Coverage Related to Pollution

Now, the Court turns to the language of the Policy to determine whether US

Sugar’s Defense Expenses in the Underlying Lawsuit erode the Policy’s Self-

Insured Retention Limit. The Court finds that the Policy, although convoluted, is

unambiguous—the Self-Insured Retention limit is eroded by Defense Expenses.

Alternately, the Court finds that if the Policy was to be considered ambiguous,

then C&I owed US Sugar a duty to defend US Sugar in the Underlying Lawsuit

under Florida law because US Sugar’s interpretation of the Policy is reasonable.

(1) The Terms of Endorsement 26 Control

The Court begins its analysis of the Policy with a few principles in mind.

First, in evaluating the meaning of the Policy, the Court looks to Florida law for

guidance, and construes the Policy in accordance with its plain language. See,

e.g., Evanston Ins. Co. v. Whyte, No. 10-61007-CIV, 2011 WL 13096633, at *4

(S.D. Fla. Oct. 17, 2011) (Dimitrouleas, J.), aff’d, 472 F. App’x 904 (11th Cir.

4 The Court also observes that, as a technical matter, it could convert the motion for judgment on

the pleadings into a partial motion for summary judgment and arrive at the same result it does

here: because neither party disputes the Policy’s authenticity and the Court is only deciding what

the Policy means a matter of law, no additional evidence is necessary for the Court to definitively

interpret the Policy. Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321 (11th Cir. 2014)

(“The interpretation of provisions in an insurance contract is a question of law.”); Mesidor v. Waste

Mgmt., Inc. of Fla., 606 F. App’x 934, 935 n.1 (11th Cir. 2015).

2012) (citing Fayad v. Clarendon Nat’l Ins. Co., 889 So. 2d 1082, 1086 (Fla.

2005)). Second, the Court seeks to give meaning to each provision of the contract

so as not to render any provision meaningless. Fla. Stat. § 627.419(1); Swire Pac.

Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 166 (Fla. 2003). Third, and

finally, should the Court find the policy to be “susceptible to two reasonable

interpretations” and therefore ambiguous, it must construe the Policy against the

insurer. Evanston, 2011 WL 13096633, at *4; Wash. Nat’l Ins. Corp. v. Ruderman,

117 So. 3d 943, 951 (Fla. 2013) (holding that “under [Florida’s] long-established

rules of construction of insurance contracts, the ambiguous policy must be

strictly construed against the insurer.”).

At the outset, the Court observes that the very nature of the Policy renders

impossible any attempt to ensure no provision of the Policy is rendered

meaningless. The Policy’s many Endorsements generally operate by deleting and

replacing wholesale portions of the Policy’s original terms. This is acutely clear in

Endorsements 23 and 26, where both Endorsements state that they replace the

Pollution Exclusion in its entirety. (Policy, End. 23, at 72; id., End. 26, at 79.)

Thus, the Court endeavors to determine which Endorsement’s alterations to the

Pollution Exclusion and the Self-Insured Retention control, if either can be clearly

said to do so. If the Policy itself does not establish which Endorsement controls in

the event of a conflict, then it is hopelessly ambiguous.

Fortunately, the Endorsements themselves contain language that, when

read as a whole, makes clear that Endorsement 26’s alterations to the Self-

Insured Retention control, while Endorsement 23’s alterations to the Pollution

Exclusion control.

First, Endorsement 26 contains a provision stating that its terms control

over other conflicting provisions, unless those other provisions also contain

language stating they control. (Id. at 81.) Given its plain meaning, this provision

makes clear that the Court may disregard the terms of any provision that conflict

with the terms of Endorsement 26, unless those conflicting terms expressly

override other conflicting terms.

Second, Endorsement 23 does not contain any language stating that its

terms control over the terms of other Endorsements. (Id., End. 23, at 72-74.)

Rather, Endorsement 23 only states that it amends the Policy’s terms. (Id. at 72.)

Therefore, in a conflict between the terms of Endorsement 23 and 26,

Endorsement 26 controls. To find otherwise would be to render Endorsement 26’s

conflict clause meaningless.

Third, Endorsement 26 contains additional language that supports this

interpretation of the Policy. In another provision (one modifying the Pollution

Exclusion, no less), Endorsement 26 specifically states that its modification of the

Pollution Exclusion will instead defer to any other modification to that provision.

(Id., End. 26, at 79.) In other words, Endorsement 26 makes clear when its

provisions control over other Endorsements and when they do not. Endorsement

23’s modifications to the Pollution Exclusion control over Endorsement 26’s

modifications to the same, based on Endorsement 26’s specific provision

compelling that outcome. But Endorsement 26’s more general conflicts provision

makes clear that Endorsement 26’s modification to the Self-Insured Retention

controls over any modifications to the Self-Insured Retention by Endorsement 23.

Therefore, because Endorsement 26 plainly states that the Self-Insured

Retention limit for general liability is “inclusive of the Defense Expenses,” US

Sugar’s Defense Expenses incurred defending the Underlying Lawsuit erode the

Policy’s Self-Insured Retention.5 Any other outcome would require the Court to

ignore the plain terms of Endorsement 26’s conflicts provision.

(2) If the Policy is Ambiguous, then Florida Law Required C&I to Provide

Coverage for US Sugar in the Underlying Suit Based on US Sugar’s

Reasonable Interpretation of the Policy

Finally, the Court observes that if the Policy’s terms were to be found

ambiguous, Florida law would still require C&I to have provided coverage for US

Sugar in the underling lawsuit. Ambiguities in insurance contracts are

interpreted against the insurer. Ruderman, 117 So. 3d at 951. And “any doubt

regarding the duty to defend must be resolved in favor of the insured.” Pepper’s

Steel & Alloys, Inc. v. U.S. Fid. & Guar. Co., 668 F. Supp. 1541, 1545 (S.D. Fla.

1987) (Spellman, J.) (citing Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So.

2d 801, 814 (Fla. 1st DCA 1985)). Given the complex nature of the Policy’s

overlapping Endorsements, US Sugar’s interpretation is certainly reasonable, and

would control should the Policy be ambiguous. Therefore, the Court would reach

the same conclusion even if it did not find that Endorsement 26’s conflict

provision provides a clear and unambiguous interpretation.

4. Conclusion

For the reasons stated above, the Court grants in part US Sugar’s motion

for judgment on the pleadings (ECF No. 13) and finds that the Policy’s Self-

Insured Retention limit for general liability—including for liability that falls within

Endorsement 23’s terms—is eroded by Defense Expenses.

5 The Court notes, again, that it makes no decision here regarding the legitimacy of any of US

Sugar’s claimed attorneys’ fees and costs incurred in the Underlying Litigation. Nor does it

determine whether any of C&I’s defenses to coverage may be applicable. The Court’s ruling here is

strictly limited to its interpretation of the Policy.

Done and ordered in Miami, Florida, on December 2, 2022.

f= N. Scola, f

United States District Judge