Southern-Owners Insurance Company v. Juan Farrera

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12161

Non-Argument Calendar

____________________

SOUTHERN-OWNERS INSURANCE COMPANY,

Plaintiff-Appellant,

versus

JUAN FARRERA,

JASON ANDREWS,

A Florida Resident,

JASON ANDREWS CONSTRUCTION INC,

A Florida Corporation,

Defendants-Appellees,

____________________

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2 Opinion of the Court 23-12161

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 5:22-cv-00049-RH-MJF

____________________

Before JILL PRYOR, BRANCH, and ABUDU, Circuit Judges.

PER CURIAM:

In this appeal, we must decide whether Southern-Owners

Insurance Company (“Southern-Owners”) owes a duty to defend

Jason Andrews based on an insurance policy (the “Policy”) it issued

to Andrews’ business, Jason Andrews Construction, Inc. (“JAC”).

The district court found that Southern-Owners had such a duty.

After careful consideration, and for the reasons explained below,

we discern no reversible error in the district court’s order and af-

firm.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

While working on a construction project in May 2019, Juan

Farrera fell through a roof and was injured. The roof Farrera was

working on had been damaged by Hurricane Michael and the prop-

erty owner had selected Andrews for the repair job. At the time

Farrera fell, he was working for a sub-contractor, DeLeon Con-

struction, LLC, who, in turn, was working for JAC, the contractor.

Farrera and his wife Minca Farrera sued JAC, Jason Andrews indi-

vidually, as well as DeLeon and the project owner, in state court.

The operative complaint alleged that Andrews was Farrera’s super-

visor, that Andrews was an employee and agent of JAC, and that

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Andrews acted with gross negligence, including by failing to pro-

vide Farrera safety equipment. Farrera also alleged that neither

Andrews, JAC, or DeLeon Construction provided him with fall

protection equipment. Farrera was not on any company’s work-

ers’ compensation insurance. Farrera’s suit alleged claims of negli-

gence against Andrews, DeLeon Construction, and JAC, gross neg-

ligence against Andrews, DeLeon Construction, and JAC, negli-

gence against JAC on a vicarious liability theory, and negligent hir-

ing against the property owner.

Southern-Owners insured JAC under a Commercial General

Liability insurance policy from February 2019 through February

2020. Based on the Policy, Southern-Owners defended Andrews

and JAC in the state court lawsuit under a reservation of rights.

Southern-Owners subsequently sued the Farreras, Andrews,

and JAC in district court. It sought a declaratory judgment stating

that it was not obligated to defend or indemnify Jason Andrews or

JAC in the state court suit. After each party had submitted evi-

dence, the parties consented to a bench trial on the written record.

Specifically, the district court proposed, and the parties accepted, a

procedure where it would “read all the materials as they now exist

and make a ruling.” Southern-Owners also represented that the

parties agreed there was no further evidence “out there that could

be presented.” Because the parties agreed to that procedure, we

summarize the relevant facts from the evidence submitted before

turning to the merits of the dispute.

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4 Opinion of the Court 23-12161

Eulises DeLeon, owner of DeLeon Construction, testified as

follows. Farrera was the uncle of DeLeon’s wife and the two had

never worked together before April 2019. DeLeon had around four

employees when DeLeon Construction was started, and Farrera

was not one of them. However, in 2019, Farrera had been experi-

encing financial difficulties and needed work. Farrera had also

been—and continued—working for other construction companies,

but DeLeon did not know which companies. Farrera helped clean

the job sites, “and on occasions he’d get up on the roof.” Farrera

had been working with DeLeon for two to four weeks before he

was injured.

Hurricane Michael had recently hit Florida, and roofing con-

tractors were especially busy. Both DeLeon and Farrera lived in

Alabama and had come into the state to do roofing work, mostly

on residential houses. DeLeon explained that, in this context, he

had hired Farrera on a temporary basis, but did not keep employ-

ment records or consider him a permanent employee. DeLeon

paid Farrera in cash. While DeLeon had tracked how much Farrera

was being paid in the past, he no longer had the records.

Farrera was on the roof when he was injured, helping other

workers install a metal laminate roof. The other workers on the

roof were employees of DeLeon Construction who had been hired

through SouthEast Leasing. DeLeon had not seen Farrera fall but

had heard that the workers were “pulling a sheet of . . . laminate”

and then, while Farrera was moving to the other side of the roof,

“there was no decking” and he fell off the roof. DeLeon had not

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provided Farrera with equipment but, generally speaking, there

were harnesses available to all of the workers on the site. None of

the workers were wearing harnesses, however, because they be-

lieved “the roof was sufficiently flat.” Farrera also was not wearing

a helmet on the day he was injured. Jason Andrews was present

when Farrera was injured, as DeLeon Construction was working

for JAC at the time. DeLeon agreed that he was “just doing . . . Far-

rera a favor by giving him some work that [he] could pay him cash

for.” DeLeon had not attempted to file a claim for workers’ com-

pensation for Farrera because he “knew he was not covered.”

DeLeon agreed that DeLeon Construction “ha[d] enough

employees” that it did not need Farrera to show up and that Farrera

was not replacing any permanent employee who was on leave or

absent. However, he also stated that he “did need” Farrera to help

get this project done. DeLeon also explained that he supervised

Farrera’s work, Andrews did not. DeLeon also signed an affidavit

stating that Farrera “was an independent contractor or temporary

worker, who was free to come to work by the day, if he wished to

earn money . . . [and] was free to work on other work sites or for

other companies, as he wished.”

Andrews testified as follows. JAC had been doing roofing

work for around 10 years. The company had some of its own em-

ployees, including a secretary and several laborers. In 2018, after

Hurricane Michael, Andrews met DeLeon, who contacted JAC and

asked if JAC had work due to the storm. Andrews put DeLeon on

the payroll of JAC and then “his guys . . . that came with him” were

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also put on payroll. DeLeon and his workers were paid by the job

and by the size of the project. Later, though, DeLeon and his em-

ployees became employees of DeLeon Construction, and they

came off JAC’s payroll.

Andrews explained that Farrera was working at the job site

where he was injured and was removing roof panels and putting

on new roof panels. To Andrews’ knowledge, Farrera had not

worked for JAC before. Andrews had not had any “dealings” with

DeLeon or DeLeon Construction with regard to the individual em-

ployees at each job site. DeLeon had his own business, and An-

drews was not “in charge of the employee part” of that business.

DeLeon also, at that point, presented Andrews with a certificate of

insurance for his business, but Andrews did not look into the details

of whether his workers were covered. In other words, by the time

of Farrera’s accident in May 2019, neither Farrera nor DeLeon’s

other employees were being paid through JAC.

Andrews was on the job site on the day Farrera was injured

and he had no recollection that any other employees of JAC were

present. Andrews had the opportunity to observe DeLeon and his

employees’ work, but he was not on the same level of the roof as

Farrera when Farrera fell. Andrews had observed DeLeon Con-

struction’s work in the past and generally thought it was done well.

Andrews testified that he had provided DeLeon some equipment,

including ropes, harnesses, and ladders, but that DeLeon had some

of his own equipment as well. Andrews stated that all workers

were “instructed to” wear ropes and harnesses “any time they”

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were over six feet off the ground. He believed that all of the work-

ers understood this system.

Andrews stated that the workers had been using ropes and

harnesses on the day Farrera fell. In addition, the workers were

“quite a ways through the job” at the time. Then, the workers had

taken lunch and had not put ropes and harnesses on after lunch.

“[W]ithin 15 minutes or so” after lunch, Farrera was carrying a

roofing panel and fell off the roof. DeLeon was directing the work

of Farrera, and Andrews was on site to “perform[] some of the de-

tail work [him]self”—not to “direct[] any of [DeLeon’s] employ-

ees.” Andrews also explained that DeLeon, not himself, was con-

trolling the workers and was the supervisor of the workers, includ-

ing Farrera, who were on the site that day. In fact, Andrews ex-

plained, many of the workers did not speak English and DeLeon

was able to communicate with them in Spanish, while Andrews did

not speak Spanish. Andrews had no knowledge of whether Farrera

was a temporary worker or a seasonal employee.

The parties also stipulated to some facts. As relevant, they

agreed that Farrera “was working on the roof at a [JAC] job site at

the time of his fall and injuries” and that there was no workers com-

pensation insurance in place for Farrera at the time of his fall.

The parties also set out their theories of the case, which we

summarize in brief here and then address further below.

Southern-Owners contended throughout that Farrera was

an employee, not a temporary worker. It, accordingly, argued that

either JAC or DeLeon was obligated to acquire and maintain

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8 Opinion of the Court 23-12161

workers’ compensation for Farrera, but failed to do so. It argued,

therefore, that the Policy’s “Workers’ Compensation and Similar

Laws” exclusion applied, and Southern-Owners had no duty to de-

fend Andrews. It also contended that the “employer’s liability” ex-

clusion in the Policy barred coverage because Farrera was an em-

ployee of JAC.

Andrews and JAC argued that Farrera was a temporary

worker because DeLeon’s testimony established as much and

Southern-Owners had no evidence that DeLeon’s testimony was

untrue. Farrera likewise argued that the evidence, including the

recent hurricane and the brevity of Farrera’s tenure with DeLeon,

showed that he was a temporary worker, not an employee under

the Policy. Moreover, he argued that finding him to be a tempo-

rary worker would be “a reasonable interpretation” of the facts that

would provide coverage, which, under Florida law, should be

adopted.

The district court ultimately concluded that Southern-Own-

ers had a duty to defend Andrews from all the claims in the state

court lawsuit. 1 In its findings of fact and conclusions of law, it first

explained that Andrews was an insured for the purposes of Far-

rera’s state court lawsuit because he was an executive officer of

1 The district court reserved the question of whether, if Southern-Owners had

a duty to defend Andrews against all claims in the state-court lawsuit but did

not have a duty to defend JAC, its duty to defend Andrews carried with it a

duty to defend JAC. While the district court later ruled on that issue, it was

not resolved before this appeal was taken, and an amended notice of appeal

has not been filed, so we do not address it here.

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JAC. Next, it concluded that the “Workers’ Compensation and

Similar Laws” exclusion did not apply because workers’ compen-

sation immunity does not bar an injured employee’s claim against

a fellow employee for gross negligence. The district court ex-

plained that, under state law, Andrews was a fellow employee as

relevant to this exclusion. Finally, turning to the “Employer’s Lia-

bility” exclusion, the district court concluded that Farrera “was a

‘temporary worker’ not an ‘employee’” under the Policy’s provi-

sions. This finding was based on the following: (1) Hurricane Mi-

chael caused extensive damage to the area where the project was

occurring; (2) Farrera was “paid on a cash basis for a short pe-

riod . . . [and] had been there no more than three weeks when he

fell”; and (3) Farrera was “brought in to meet short-term workload

conditions.” It rejected Southern-Owners’ argument that it should

apply the statutory definition of “employee” because the Policy de-

fined the term “employee” and Florida law required it to apply the

Policy definition.

For these reasons, the district court concluded that the ex-

clusions invoked by Southern-Owners did not apply and Southern-

Owners had a duty to defend Andrews from all the claims in the

state-court lawsuit. Southern-Owners timely appealed. 2

2 We have jurisdiction because the district court’s order, while not final under

28 U.S.C. § 1291, had the practical effect of an injunction. See 28 U.S.C.

§ 1292(a)(1); James River Ins. Co. v. Ultratec Special Effects Inc., 22 F.4th 1246,

1252-53 (11th Cir. 2022).

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II. STANDARDS OF REVIEW

“On appeal following a bench trial, a district court’s conclu-

sions of law are reviewed de novo, and its findings of fact are re-

viewed for clear error.” A.I.G. Uru. Compania de Seguros, S.A. v. AAA

Cooper Transp., 334 F.3d 997, 1003 (11th Cir. 2003). The “interpre-

tation of the language” of an insurance policy “constitutes a ruling

on a question of law,” so our review of the district court’s interpre-

tation of the Policy is de novo. EmbroidMe.com, Inc. v. Travelers Prop.

Cas. Co. of Am., 845 F.3d 1099, 1105 (11th Cir. 2017).

When we review for clear error, we are deferential to the

district court’s view of the evidence. Bellitto v. Snipes, 935 F.3d

1192, 1197 (11th Cir. 2019). “A finding of fact is clearly erroneous

‘when although there is evidence to support it, the reviewing court

on the entire evidence is left with the definite and firm conviction

that a mistake has been committed.’” OHI Asset (VA) Martinsville

SNF, LLC v. Wagner (In re Wagner), 115 F.4th 1296, 1303 (11th Cir.

2024) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573

(1985)). “Therefore, ‘[w]here there are two permissible views of

the evidence, the factfinder’s choice between them cannot be

clearly erroneous.’” Id. (quoting Anderson, 470 U.S at 574). “[A]

reviewing court may not set aside a finding of fact that is based on

the trial judge’s ‘decision to credit the testimony of one . . . or more

witnesses, each of whom . . . told a coherent and facially plausible

story that is not contradicted by extrinsic evidence.’” Id. at 575-76

(quoting Anderson, 470 U.S. at 575-76).

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III. DISCUSSION

Like the district court, we apply Florida law to this dispute.

Westchester Gen. Hospital, Inc. v. Evanston Ins., 48 F.4th 1298, 1302

(11th Cir. 2022). Florida law instructs us to construe insurance pol-

icies “in accordance with the[ir] plain language,” with ambiguities

construed in favor of the insured. Taurus Holdings, Inc. v. U.S. Fid.

& Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) (quoting Swire Pac. Hold-

ings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003)). In doing

so, “[w]e read policies as a whole and undertake to give every pro-

vision its ‘full meaning and operative effect.’” Parrish v. State Farm

Florida Ins. Co., 356 So. 3d 771, 774 (Fla. 2023) (quoting Auto-Owners

Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000)).

“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.’” Trav-

elers Indem. Co. of Conn. v. Richard McKenzie & Sons, Inc., 10 F.4th

1255, 1261 (11th Cir. 2021) (quoting Jones v. Fla. Ins. Guar. Ass’n, 908

So. 2d 435, 442–43 (Fla. 2005)). An insurer’s duty to defend is

“broad” and does not depend on whether the underlying suit has

merit. Id. That is because the analysis of whether an insurer owes

a duty to defend turns upon the allegations of the underlying com-

plaint; an insurer may have a duty to defend even when the com-

plaint’s allegations turn out to be “factually incorrect or meritless,”

Jones, 908 So. 2d at 443, or rest on an “unsound” legal theory, State

Farm Fire & Cas. Co. v. Higgins, 788 So. 2d 992, 996 (Fla. 4th DCA

2001), approved 894 So. 2d 5 (Fla. 2004)).

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“‘Any doubts regarding the duty to defend must be resolved

in favor of the insured,’ and ‘where a complaint alleges facts that

are partially within and partially outside the coverage of a[] . . . pol-

icy, the insurer is not only obligated to defend, but must defend the

entire suit.’” Travelers Indem., 10 F.4th at 1261 (first quoting Jones,

908 So. 2d at 443; and then quoting Sunshine Birds & Supplies, Inc.

v. U.S. Fid. & Guar. Co., 696 So. 2d 907, 910 (Fla. 3d DCA 1997)).

Florida courts “determine whether an insurer has a duty to defend

its insured based only on ‘the eight corners of the complaint and

the policy.’” Id. (quoting Mid-Continent Cas. Co. v. Royal Crane, LLC,

169 So. 3d 174, 182 (Fla. 4th DCA 2015)). We consider the facts

alleged in the complaint as they are “fairly read.” Id. (quoting Fun

Spree Vacations, Inc. v. Orion Ins. Co., 659 So. 2d 419, 421 (Fla. 3d

DCA 1995)).

An insurer does not need to defend an insured when a policy

exclusion applies. Westchester Gen., 48 F.4th at 1302. “[T]he insured

has the initial burden to establish that a policy coverage applies, but

then ‘the burden shifts to the insurer to prove that the loss arose

from a cause which is excepted.’” Id. (quoting Hudson v. Prudential

Prop. & Cas. Ins. Co., 450 So. 2d 565, 568 (Fla. 2d DCA 1984)).

With these principles in mind, we must answer three ques-

tions in this appeal: (1) whether Andrews is an “insured” under the

Policy for Farrera’s state court claims against him; (2) whether the

Policy’s “Workers’ Compensation and Similar Laws” exclusion ap-

plies here; and (3) whether the Policy’s “Employer’s Liability”

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exclusion applies in this circumstance. We address the first and

third questions together, then turn to the second question.

A. Andrews is an Insured under the Policy, and the “Em-

ployer’s Liability” Exclusion does not apply here.

The Policy includes a list of defined terms. As relevant here,

it defines “executive officer” as “a person holding any of the officer

positions created by [JAC’s] charter, constitution, by-laws or any

other similar governing document.” It defines “temporary

worker” as “a person who is furnished to [an insured] to substitute

for a permanent employee on leave or to meet seasonable or short-

term workload conditions.” The definitions also exclude “tempo-

rary worker[s]” from the definition of “employee.”

Under the subheading “Section II – Who is An Insured,” the

policy lists categories of individuals who are insureds, including:

1.d. An organization other than a partnership, joint

venture or limited liability company [is] an insured.

[That organization’s] ‘executive officers’ and directors

are insureds, but only with respect to their duties as

your officers or directors. . . .

2.a. Your ‘employees’, other than either your ‘execu-

tive officers’ . . . or your managers . . . [are also in-

sureds], but only for acts within the scope of their em-

ployment by you or while performing duties related

to the conduct of your business. . . .

These definitions go on to clarify that “no person is an insured for

‘bodily injury’, ‘personal injury’, or ‘advertising injury’ . . . [t]o an

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‘employee’ of any insured while in the course of his or her employ-

ment or performing duties related to the conduct of any insured’s

business.” While somewhat repetitive, the Policy’s “Employer’s

Liability” exclusion provides that the Policy does not cover “bodily

injury to . . . an ‘employee’ of any insured arising out of and in the

course of employment by any insured.”

The district court concluded that “executive officers” of JAC

were insured “with respect to their duties as such.” Based on that

conclusion, it found that Andrews—an executive officer of JAC—

was an insured.

On appeal, Southern-Owners concedes that Andrews was an

“executive officer” of JAC under the Policy’s definition. However,

it contends that the district court erred in concluding that Andrews

was an insured for two reasons. First, it argues that the Policy’s

exception relating to injuries suffered by “employees” applies to

Farrera because the Policy’s definition of “employee” does not ap-

ply to Farrera. Second, it argues that the district court erred in con-

cluding that Farrera was a temporary worker. For similar reasons,

it argues that the Policy’s employer’s liability exclusion applies.

As to the first point, Southern-Owners contends that the dis-

trict court should have used Florida’s statutory definition of “em-

ployee,” Fla. Stat. § 440.02(18)(a), rather than the Policy’s definition

of employee, see Fla. Stat. § 440.02(18)(a) (“‘Employee’ means any

person who receives remuneration from an employer for the per-

formance of any work or service while engaged in any employ-

ment under any appointment or contract for hire or

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apprenticeship, express or implied, oral or written, whether law-

fully or unlawfully employed, and includes, but is not limited to,

aliens and minors.’”). Unlike the Policy definition, the statutory

definition contains no exception for “temporary workers,” and

Southern-Owners points to caselaw that establishes that Farrera—

if a statutory employee of DeLeon—would be considered a statu-

tory employee of JAC. So, Southern-Owners’ argument goes, if

Fla. Stat. § 440.02(18)(a)’s definition applies instead of the Policy

definition, Farrera was an employee and Andrews was not an in-

sured for injuries suffered by Farrera and, in addition, the Policy’s

employer’s liability exclusion would apply.

We agree with the district court that the Policy’s definition

of “employee” determines the scope of who is an insured and the

scope of the employer’s liability exclusion. Southern-Owners’ pro-

posed interpretation would violate the Policy’s plain language,

which unambiguously exempts “temporary workers” from the def-

inition of employee. Taurus Holdings, 913 So. 2d at 532. Southern-

Owners’ position would also require us to ignore, or excise, the

portion of the Policy that defines “employee,” rather than give that

“provision its ‘full meaning and operative effect.’” Parrish, 356

So. 3d at 774 (quoting Anderson, 756 So. 2d at 34). If these problems

did not give us sufficient pause, Southern-Owners’ reading would

also require us to find “doubt” and then construe the doubt in favor

of the insurer and against the insured. Travelers Indem., 10 F.4th at

1261; Taurus Holdings, 913 So. 2d at 532. Florida law does not per-

mit us to read the Policy that way. See Altman Contractors, Inc. v.

Crum & Forster Specialty Ins. Co., 232 So. 3d 273, 274-79 (Fla. 2017)

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(holding that a proceeding was within a policy’s definition of “suit”

even though it was not a “civil proceeding” as a matter of state

law); see also State Farm Mut. Auto. Ins. Co. v. Spangler, 64 F.4th 1173,

1184 (11th Cir. 2023) (applying Florida law and explaining that gen-

erally parties may contract around applicable state law in an insur-

ance policy, so long as law and public policy do not void such a

contract). Thus, the district court did not err in applying the Policy

definition of “employee” in determining whether Andrews was an

insured and determining whether the Employer’s Liability exclu-

sion applied. 3

Second, Southern-Owners argues that there is nothing in the

operative complaint, or in the other evidence submitted, support-

ing the district court’s finding that Farrera was a temporary

worker. We disagree. Our review of the eight corners of Farrera’s

operative state-court complaint and the Policy together shows that

the documents, alone, do not answer whether Farrera was an em-

ployee or a temporary worker when he was injured. However, in

order to prevail, Southern-Owners must show that the state court

litigation does not contain facts that “fairly and potentially bring

the suit within policy coverage.” See Jones, 908 So. 2d at 442-43;

Higgins, 788 So. 2d at 996; Travelers Indem., 10 F.4th at 1261. This

3 As the district court explained, “Southern-Owners included in its policy a

definition of ‘employee’” that exempted temporary workers, “so that defini-

tion applies to the word ‘employee’ as used in the [P]olicy.” See Fayad v. Clar-

endon Nat’l Ins. Co., 899 So. 2d 1082, 1086 (Fla. 2005) (“[T]he insurer is held

responsible for clearly setting forth what damages are excluded from coverage

under the terms of the policy.”).

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23-12161 Opinion of the Court 17

can be true even if the complaint’s allegations turn out to be defi-

cient in one way or another. Jones, 908 So. 2d at 443; Higgins, 788

So. 2d at 996. Therefore, because the eight corners of the com-

plaint and Policy, “fairly” read, do not show that Farrera was not a

temporary worker, Southern-Owners’ argument fails without

turning to extrinsic evidence.

That said, there is a narrow exception to the “eight corners”

rule we discussed above—an insurer may be relieved of a duty to

defend if an undisputed fact takes a claim outside the policy cover-

age, even if the factual allegation does not appear in the complaint.

See, e.g., Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5, 10 n.2

(Fla. 2004). Based on the parties’ stipulations, we also will review

the district court’s conclusions on this point based on the extrinsic

evidence.4 Our review is for clear error. A.I.G. Uru. Compania de

Seguros, 334 F.3d at 1003.

Given this deferential standard of review, Southern-Owners

has not shown clear error, as the extrinsic evidence, if anything,

supports a finding that Farrera was a temporary worker rather than

4 To the extent that Southern-Owners now argues that the district court

should not have looked beyond the complaint and the Policy, we note that it

did not ask the district court to limit its consideration of this issue to the com-

plaint and, in fact, asked the district court to consider outside evidence on this

issue. See, e.g., Crockett v. Uniroyal, Inc., 772 F.2d 1524, 1530 n.4 (11th Cir. 1985)

(explaining that it is “a cardinal rule of appellate review that a party may not

challenge as error a ruling or other trial proceeding invited by that party”);

United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998) (similar).

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18 Opinion of the Court 23-12161

a finding that he was an employee under the Policy. Anderson,

470 U.S. at 574.

The district court cited Farrera’s short time working for

DeLeon and the recency of Hurricane Michael, facts supported by

the record. While not dispositive, DeLeon also testified that he

considered Farrera a temporary employee, not a permanent one.

Moreover, JAC had increased work because of the Hurricane and

Farrera and DeLeon had come from out of state because there was

additional work available for the same reason. Reviewing these

facts and the rest of the record, we conclude there is sufficient evi-

dence to support the district court’s finding that Farrera was “a per-

son who [wa]s furnished to [Andrews and/or JAC] to substitute for

a permanent employee on leave or to meet seasonable or short-

term workload conditions.” In addition, Southern-Owners does

not cite facts that show definitively that Farrera was not a tempo-

rary worker, which it would need to do to show clear error on an

issue for which it bore the burden in any event. Accordingly, even

if it were a close call, our standard of review requires us to give

deference to the factfinder’s view of the evidence. See Bellitto,

935 F.3d at 1197; Wagner, 115 F.4th at 1303.

In sum, we affirm on this issue based on the Policy as a

whole and the district court’s factual findings which we conclude

are not clearly erroneous. Andrews was an “executive officer” of

JAC and was an insured under the Policy as such. While “no per-

son” is an insured under the Policy for injuries suffered by “em-

ployees,” Farrera was not an “employee” under the Policy, he was

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23-12161 Opinion of the Court 19

a “temporary worker,” excluded from the Policy’s own definition

of “employee.” For these reasons, we affirm the district court’s rul-

ing that Andrews was an insured.

This discussion also resolves Southern-Owners’ arguments

about the “employer’s liability” exclusion. Indeed, all the cases

Southern-Owners cites on this point address situations where an

employer’s liability exclusion barred coverage for the injuries of

“employees” and the injured was an “employee” under the policy

at issue. In this case, Farrera was not an “employee” under the

terms of the Policy. He was a temporary worker, and this exclu-

sion does not address temporary workers at all.

Finally, Southern-Owners’ position that Farrera must have

been either (and only) a statutory employee or an actual employee

under the Policy is unsupported. It is consistent with contractual

principles and Florida law that a term can mean one thing under

state law and another in a contract. See, e.g., Spangler, 64 F.4th at

1176 (“Because an insurer can provide more [uninsured motor ve-

hicle] coverage than the law requires, we decline to disregard the

Policy’s broader definition of uninsured motor vehicle in favor of a

more limited statutory definition of motor vehicle.”). Accordingly,

the district court did not err in concluding that Ferrara was not an

employee under the Policy’s definition of that term but was a stat-

utory employee for the purposes of the workers’ compensation ex-

clusion that we discuss next which, naturally, incorporates the

workers’ compensation definitions in Florida law. These conclu-

sions comport with our responsibility to read the Policy “as a

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20 Opinion of the Court 23-12161

whole and undertake to give every provision its full meaning and

operative effect.” Parrish, 356 So. 3d at 774. We, therefore, find no

error in the district court’s reasoning on this issue either.

B. The “Workers’ Compensation and Similar Laws” Exclusion

does not apply.

The Policy’s workers’ compensation and similar laws provi-

sion provides that the coverage does not extend to “[a]ny obligation

of the insured under a workers’ compensation, disability benefits

or unemployment compensation or any similar law.” On appeal,

Southern-Owners argues that it does not have a duty to defend An-

drews because this “Workers’ Compensation and Similar Laws” ex-

clusion applies. The district court, however, rejected this conten-

tion and found that Farrera’s suit alleged gross negligence by An-

drews—a co-employee—such that the claim fell outside the work-

ers’ compensation exclusion.

On appeal, the parties dispute whether Andrews was an em-

ployee under Florida’s workers’ compensation law. This dispute is

dispositive to the application of the Policy’s workers’ compensa-

tion exclusion because, if Andrews is alleged to be a co-employee

of Farrera in the state court lawsuit, then allegations of gross negli-

gence against Andrews would take that claim outside of workers’

compensation coverage. See Fla. Stat. § 440.11(1)(b). Then, the

Policy’s workers’ compensation exclusion would not apply to bar

coverage.

The Florida Supreme Court has explained that “workers’

compensation is the exclusive remedy available to an injured

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23-12161 Opinion of the Court 21

employee as to any negligence on the part of that employee’s em-

ployer.” Eller v. Shova, 630 So. 2d 537, 539 (Fla. 1993) (emphasis

added) (citing Fla. Stat. § 440.11(1)); Morales v. Zenith Ins. Co.,

152 So. 3d 557, 562 (Fla. 2014) (same). However, “where injuries

are not encompassed within [Florida’s] Worker’s Compensation

Act, the employee is free to pursue his or her common law reme-

dies.” Mena v. J.I.L. Constr. Grp. Corp, 79 So. 3d 219, 222 (Fla. 4th

DCA 2012) (quoting Tractor Supply Co. v. Kent, 966 So. 2d 978,

981-82 (Fla. 5th DCA 2007)).

In general, because of the exclusivity of the workers’ com-

pensation scheme, a claim for damages brought by an employee

who is injured on the job cannot be maintained against an em-

ployer unless the employer committed an intentional tort causing

the injury. See Morales, 152 So. 3d at 562; Fla. Ins. Guar. Ass’n v.

Revoredo, 698 So. 2d 890, 890-93 (Fla. 3d DCA 1997). “The same

immunities from liability enjoyed by an employer shall extend as

well to each employee of the employer when such employee is act-

ing in furtherance of the employer’s business” except that, as rele-

vant, these “fellow-employee immunities shall not be applicable to

an employee who acts, with respect to a fellow employee, with

willful and wanton disregard or unprovoked physical aggression or

with gross negligence . . . .” Fla. Stat. § 440.11(1)(b); see also Mo-

rales, 152 So. 3d at 562. A more significant immunity applies to a

subset of employees:

The same immunity provisions enjoyed by an em-

ployer shall also apply to any sole proprietor, partner,

corporate officer or director, supervisor, or other

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22 Opinion of the Court 23-12161

person who in the course and scope of his or her du-

ties acts in a managerial or policymaking capacity and

the conduct which caused the alleged injury arose

within the course and scope of said managerial or pol-

icymaking duties and was not a violation of a law,

whether or not a violation was charged, for which the

maximum penalty which may be imposed does not

exceed 60 days’ imprisonment as set forth in [Fla. Stat.

§ ] 775.082”

Fla. Stat. § 440.11(1)(b).

As noted above, Florida law broadly defines “employee” for

the purposes of the workers’ compensation scheme as “any person

who receives remuneration from an employer for the performance

of any work or service while engaged in any employment under

any appointment or contract for hire or apprenticeship, express or

implied, oral or written, whether lawfully or unlawfully em-

ployed . . . .” Fla. Stat. § 440.02(18)(a). This definition “includes

any person who is an officer of a corporation and who performs

services for remuneration for such corporation within this state,

whether or not such services are continuous.” Id. § 440.02(b). The

law also defines “employer.” See Fla. Stat. § 440.02(19)(a) (“If the

employer is a corporation, parties in actual control of the corpora-

tion, including, but not limited to, the president, officers who exer-

cise broad corporate powers, directors, and all shareholders who

directly or indirectly own a controlling interest in the corporation,

are considered the employer for the purposes of [Sections] 440.105,

440.106, and 440.107.”).

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23-12161 Opinion of the Court 23

On this issue, Southern-Owners does not dispute that Far-

rera was a statutory employee for purposes of workers’ compensa-

tion under Fla. Stat. § 440.02(15). 5 It also does not dispute that Far-

rera was injured in the course and scope of his work; he was enti-

tled to workers’ compensation coverage; and that he was not pro-

vided workers’ compensation coverage. However, it argues that

the district court erred in concluding that workers’ compensation

immunity did not apply so the Policy’s workers’ compensation ex-

ception also does not apply. Southern-Owners argues that the dis-

trict court erred in concluding that Farrera and Andrews were co-

employees. It states that Andrews was a supervisor or a corporate

officer under Florida law, for whom workers’ compensation im-

munity applies unless the “criminal acts” exception applies—i.e., al-

legations of gross negligence are not enough, only allegations of

culpable negligence would avoid workers’ compensation immun-

ity and fall outside the exclusion.

Farrera and Andrews argue that they were co-employees, so

the district court properly found that the complaint’s allegations of

gross negligence were sufficient to avoid workers’ compensation

immunity. With regard to this portion of the district court’s order,

they contend they were each “employees” under Florida’s

5 As previously discussed, the term “employee” is defined differently under the

workers’ compensation exclusion compared to the Policy’s employer’s liabil-

ity exclusion and the Policy’s definition of “employee” referenced in the deter-

mination of who is an insured under the Policy. Because the workers’ com-

pensation exclusion applies workers’ compensation law, the definition of “em-

ployee” for purposes of workers’ compensation applies.

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24 Opinion of the Court 23-12161

workers’ compensation law and contend that the district court

properly looked to whether the complaint alleged “gross negli-

gence.”

Here, yet again, the state court complaint does not squarely

answer whether Andrews was an employer or an employee under

Florida’s workers’ compensation law. This uncertainty cuts

against Southern-Owners, as it bears the burden to show “that the

loss arose from a cause which is excepted.” Westchester Gen.,

48 F.4th at 1302; see also Baron Oil Co. v. Nationwide Mut. Fire Ins.

Co., 470 So. 2d 810, 815 (Fla. 1st DCA 1985) (concluding that an

insurer does not owe a duty to defend where a “complaint alleges

facts that clearly bring the entire cause of action within a policy ex-

clusion” (emphasis added)). The district cited Florida’s broad defi-

nition of “employee,” which, based on the complaint and evidence

submitted, arguably includes both Farrera and Andrews. See Fla.

Stat. § 440.02(18).

The complaint alleged that Andrews was a JAC employee,

that Andrews had a duty to “maintain” and “inspect” the premises,

and that he was on-site doing work unrelated to Farrera’s work on

the day of Farrera’s injury. Moreover, Andrews explained that he

did not speak the same language as Farrera, and that only DeLeon

could communicate with Farrera and the other workers who did

not speak English. These facts all lend support to the district

court’s conclusion that the state court lawsuit asserted a claim

against Andrews as a co-employee. In addition, the complaint as-

serts that Andrews acted with gross negligence. Thus, the

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23-12161 Opinion of the Court 25

allegations in the state court suit of gross negligence by a co-em-

ployee bring the suit outside the exclusivity of workers’ compensa-

tion, Morales, 152 So. 3d at 562, and the Policy’s exclusion does not

apply.

Of course, this theory of the case may ultimately be dis-

proven in the state court lawsuit—for instance, it could be that An-

drews was only ever acting in fact as an executive officer, not a co-

employee—but the duty to defend still exists. Jones, 908 So. 2d at

443 (“[An] insurer must defend even if the allegations in the com-

plaint are factually incorrect or meritless.”); Higgins, 788 So. 2d at

996; see also Baron Oil, 470 So. 2d at 814 (“Hence, the duty to defend

continues even though it is ultimately determined that the alleged

cause of action is groundless and no liability is found within the

policy provisions defining coverage.”). We accordingly affirm on

this issue as well.

IV. CONCLUSION

For the reasons described above, Southern-Owners has not

shown error in the rulings of the district court. We therefore affirm

in all respects.

AFFIRMED.