The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 24-cv-80582-CANNON/MATTHEWMAN
TRISURA SPECIALTY INSURANCE
COMPANY,
Plaintiff,
v.
SOUTH FLORIDA LODGING, LLC, et al.,
Defendants.
______________________________________/
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON
TRISURA SPECIALTY INSURANCE COMPANY’S
MOTION FOR JUDGMENT ON THE PLEADINGS [DE 40]
THIS CAUSE is before the Court upon an Order of Reference from the Honorable United
States District Judge Aileen M. Cannon [DEs 42, 43] to enter a Report and Recommendation on
Plaintiff Trisura Specialty Insurance Company’s (“Plaintiff”) Motion for Judgment on the
Pleadings (“Motion”) [DE 40]. The Motion is fully briefed. See DEs 54, 55, 56, 68, 69, 70. Plaintiff
has attached to the Motion the Probable Cause Affidavit against Dontae Maddox dated August 4,
2023 [DE 40-1], the Amended Indictment against Dontae Maddox dated October 5, 2023 [DE 40-
2], and the Amended Complaint for Damages filed by Desiree Maria Walker against South Florida
Lodging, LLC, Motell, L.L.C., Irache Partners, LLC, and Royal Employment, LLC, in Case No.
50-2023-CA-XXXA-MB in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm
Beach County, Florida [DE 40-3]. This matter is now ripe for review.
I. BACKGROUND
A. The Underlying Lawsuit
On April 11, 2024, Desiree Maria Walker filed her Amended Complaint for Damages
against South Florida Lodging, LLC, Motell, L.L.C., Irache Partners, LLC, and Royal
Employment, LLC, in Case No. 50-2023-CA-XXXA-MB in the Circuit Court of the Fifteenth
Judicial Circuit in and for Palm Beach County, Florida. [DE 40-3]. According to that amended
complaint, on August 3, 2023, Dontae Maddox entered the premises of The Inn at Boynton Beach
and intentionally shot Ms. Parker, who was pregnant. Id. ¶ 14. The unborn child died, but Ms.
Walker survived. Id. In Count 1, Ms. Walker alleges premises liability and non-delegable duty,
and in Counts 2 and 3, she alleges negligent security. Id. ¶¶ 16–31.
The Probable Cause Affidavit and Amended Indictment support Ms. Walker’s allegation.
The Probable Cause Affidavit states that Mr. Maddox admitted to law enforcement that he waited
for Ms. Walker to come out of her room and shot her. [DE 40-1 at 2]. He later provided a full
confession Id. Mr. Maddox was ultimately charged with First Degree Murder with a Firearm,
Attempted First Degree Murder with a Firearm (Premeditated), and Felon in Possession of Firearm
or Ammunition (Actual Possession). [DE 40-2].
B. The Instant Lawsuit
On May 6, 2024, Plaintiff filed its Complaint for Declaratory Relief and Monetary
Damages [DE 1, Compl.] against Defendants South Florida Lodging, LLC (“South Florida”),
Irache Partners, LLC (“Irache”), and Desiree Maria Walker. Plaintiff is seeking a determination
that there is no coverage for the lawsuit involving a shooting at a motel under an insurance policy
that includes a Firearms or Weapons Exclusion, an Assault or Battery Exclusion, and an Abuse or
Molestation Exclusion.
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According to the Complaint, Plaintiff issued a surplus lines policy to “Peak Hospitality,
LLC” as the Named Insured effective from 12/28/2022 to 12/28/2023. [Compl. ¶ 24]. South
Florida and Irache tendered the Underlying Action to Trisura for coverage. Id. ¶ 26. Plaintiff
agreed to provide South Florida and Irache with a defense under a reservation of rights, including
the right to seek reimbursement of defense costs. Id. ¶¶ 26–27. South Florida and Irache accepted
Plaintiff’s defense and have never rejected the defense. Id. The Complaint also alleges that Irache
does not qualify as an additional insured under the policy language. Id. ¶ 51. In the “Request
Relief” section of the Complaint, Plaintiff seeks a declaration that it has no duty to defend or
indemnify under the plain language of the insurance policy that it issued. It also seeks
reimbursement of defense costs and fees.
C. The Applicable Insurance Policy
The policy at issue (Policy Number OSU1000869-03) issued by Plaintiff includes a
Firearms or Weapons Exclusion that provides in pertinent part:
EXCLUSION – FIREARMS OR WEAPONS
A. This insurance does not apply to “bodily injury,” … [or] “personal and
advertising injury,” … arising out of … in whole or in part:
1. The … use … by any … person of any “firearm”;
2. The … use … by … any … person of any … “weapon”, whether or not …
intended … to be used as a “weapon” …
4. The failure of … any person or legal entity to provide an environment safe from
the use of “firearms” or “weapons” … including … the failure to provide adequate
security … to warn of the dangers of the environment which could contribute in
whole or in part to the “bodily injury,” … or the failure to maintain the premises by
… any person…
B. This exclusion applies to the foregoing and to any claim or “suit” alleging in
whole or in part the foregoing: …
4. Regardless of whether the use or misuse of a “firearm” or “weapon” is a direct
cause, and/or a contributory cause of such “bodily injury” …
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6. Regardless of the legal theory of liability … including … negligence, and
including … causes of action based on hiring, supervision, retention, training,
instructing, advising, monitoring, providing security, or implementing procedures
and protocols. …
[DE 1-4 at 61–62].
The policy includes this Assault or Battery Exclusion that provides in pertinent part:
ASSAULT OR BATTERY EXCLUSION
I. This insurance does not apply to locations specified in the above Schedule for “bodily
injury,” … [or] “personal and advertising injury,” … arising out of … or in any way related
to an “assault” or “battery” when that “assault” or “battery” is caused by, arising out of, or
results from, in whole or in part from:
A. The direct or indirect instigation … by you … or any other persons, or
B. The failure to provide a safe environment including … failure to provide
adequate security, or to warn of the dangers of the environment, or
C. The negligent employment, investigation, supervision, hiring, training or
retention of any person, or
D. Negligent, reckless, or wanton conduct by … any other persons, or …
This exclusion applies to all locations if the above Excluded Location Schedule is
left blank. Further, this exclusion also applies to all locations specified in the
Limited Assault or Battery Coverage endorsement if also attached to the policy.
II. For the purpose of this endorsement only … the following definitions are added
to SECTION V –DEFINITIONS:
A. “Assault” means any intentional act, or attempted act or threat to inflict injury
to another including any conduct that would reasonably place another in
apprehension of injury, including … physical injury … intimidation, verbal abuse,
and any threatened harmful or offensive contact between two or more persons.
B. “Battery” means the intentional or reckless use of force including a physical
altercation or dispute between persons, or offensive touching … against another,
resulting in injury whether or not the actual injury inflicted is intended or expected.
The use of force includes, but is not limited to, the use of a weapon.
[DE 1-4 at 28–29].
The policy also includes this Abuse or Molestation Exclusion that provides in part:
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EXCLUSION – ABUSE OR MOLESTATION
SECTION I – COVERAGES, COVERAGE A – BODILY INJURY AND
PROPERTY DAMAGE LIABILITY and … 2. Exclusions are amended by the …
following:
Abuse or Molestation
(1) “Bodily injury,” … or “personal and advertising injury” arising out of or in any
way related, in whole or in part, to any actual, threatened or alleged: …
(e) Physical abuse;
(f) Physical assault; …
(2) This exclusion applies regardless of the degree of culpability or intent and
without regard to:
(a) Whether the acts are alleged to be by or at the instruction or at the direction of
the insured … or by any other person lawfully or otherwise on, at or near the
premises owned or occupied by the insured … or by any other person; …
[DE 1-4 at 59–60].
D. The Relevant Procedural History in the Instant Case
All of the Defendants filed a joint Motion to Dismiss or Stay Plaintiff’s Complaint for
Declaratory Relief and Monetary Damages [DE 24]. On November 21, 2024, the Court entered a
Paperless Order granting in part and denying in part that motion to dismiss. [DE 29]. The Court
found that,
Plaintiff seeks a coverage declaration under an insurance policy concerning its duty
to defend in an ongoing Florida action as well as its duty to indemnify any potential
finding of liability in that action. Plaintiff's request for a declaratory judgment
concerning Plaintiff's duty to defend is clearly the subject of an ongoing
controversy and is therefore ripe for adjudication. By contrast, the Court agrees
with Defendants that Plaintiff's request for a declaration as to its duty to indemnify
is premature given the absence of any finding of liability in the state action. Under
these circumstances, grounded in Article III of the Constitution, the Court denies
Defendants' motion to dismiss Plaintiff's Complaint as to Plaintiff's duty to defend;
grants Defendants' motion as to Plaintiff's duty to indemnify; exercises jurisdiction
over the Complaint as it concerns coverage determinations implicating a ripe duty
to defend; and dismisses without prejudice for lack of jurisdiction Plaintiff's
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Complaint as it concerns an unripe duty to indemnify. To the extent the Court has
power to stay the unripe indemnity claim, the Court declines to exercise its
discretion to do so, finding dismissal without prejudice to be the appropriate course.
On or before December 6, 2024, Defendants shall file individual answers (or one
combined answer) to Plaintiff's Complaint, consistent with this Order.
Id. Thereafter, all of the Defendants filed Answers and Affirmative Defenses to the Complaint.
[DEs 30, 31, 32].
II. MOTION, RESPONSE, AND REPLY
A. Plaintiff’s Motion [DE 40]
Plaintiff moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure
12(c) because, “[b]ased on clearly worded exclusions in the Trisura policy, there is no coverage as
a matter of law.” [DE 40 at 1]. According to Plaintiff, there is no coverage under the three policy
exclusions listed above. Id. at 7–17. Plaintiff additionally asserts that it is entitled to all of the
defense costs it has incurred to defend South Florida and Irache and that South Florida’s
affirmative defenses are without merit. Id. at 18–20.
B. South Florida’s Response [DE 56]
Desiree Walker and Irache adopt and join South Florida’s Response. See DEs 54, 69.
Plaintiff argues that Ms. Walker’s and Irache’s Responses are insufficient; however, the Court
finds that their Responses sufficiently establish joinder and will not find waiver. The collaboration
and coordination between the Defendants promote attorney and court efficiency.
South Florida makes four general arguments in opposition to the Motion. It contends that
the Motion improperly presents matters that are outside of the pleadings; there are material
disputes regarding certain allegations contained within the Complaint and South Florida’s
affirmative defenses; the case law relied upon by Plaintiff it its Motion does not involve cases at
the judgment on the pleadings phase; and the complaint filed by Ms. Walker in the underlying
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state court action contains allegations that fall within the scope of the coverage of the insurance
policy at issue. [DE 56 at 1].
C. Plaintiff’s Reply [DE 68]
Plaintiff’s only substantive Reply is directed to South Florida’s Response. Plaintiff points
out that courts regularly decide cases involving insurance policy exclusions at the judgment on the
pleadings stage. [DE 68 at 2]. Next, it asserts that South Florida failed to dispute the applicability
of any of the three policy exclusions. Id. at 3–4. Plaintiff claims that Ms. Walker’s count of
negligence in the underlying case does not create a duty to defend for Plaintiff. Id. at 4–5. Next,
Plaintiff maintains that there is no duty to indemnify. Id. at 5. Finally, it argues that none of South
Florida’s affirmative defenses have any merit. Id. at 5–8.
III. APPLICABLE LAW
Rule 12(c) of the Federal Rules of Civil Procedure states that “[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 appropriate where there are no material facts
in dispute and the moving party is entitled to judgment as a matter of law.” Cannon v. City of W.
Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001). “A motion for judgment on the pleadings
admits the plaintiff's factual allegations and impels the district court to reach a legal conclusion
based on those facts.” Gachette v. Axis Surplus Ins. Co., No. 19-cv-23680, 2020 WL 2850587, at
*1 (S.D. Fla. Apr. 1, 2020) (quoting Dozier v. Prof'l Found. Health Care, Inc., 944 F.2d 814, 816
(11th Cir. 1991)). “A motion for judgment on the pleadings is governed by the same standard as a
Rule 12(b)(6) motion to dismiss.” Guarino v. Wyeth LLC, 823 F. Supp. 2d 1289, 1291 (M.D. Fla.
2011).
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“Under Florida law, the determination of an insurer’s duty to defend falls under the so-
called ‘eight corners rule,’ the name of which refers to the four corners of the insurance policy and
the four corners of the underlying complaint. Addison Ins. Co. v. 4000 Island Boulevard Condo.
Ass'n, Inc., 721 F. App'x 847, 854 (11th Cir. 2017) (citing Mid-Continent Cas. Co. v. Royal Crane,
LLC, 169 So.3d 174, 182 (Fla. 4th DCA 2015)). “Put simply, the eight corners rule provides that
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.’” Addison Ins. Co., 721 F.
App’x at 182 (citing Jones v. Fla. Ins. Guar. Ass'n, Inc., 908 So. 2d 435, 442–43 (Fla. 2005)).
“If the allegations in the complaint state facts that bring the injury within the policy's
coverage, the insurer must defend regardless of the merits of the lawsuit.” State Farm Fire & Cas.
Co. v. Steinberg, 393 F.3d 1226, 1230 (11th Cir. 2004) (applying Florida law). “The duty to defend
is of greater breadth than the insurer's duty to indemnify, and the insurer must defend even if the
allegations in the complaint are factually incorrect or meritless.” Jones, 908 So. 2d at 443. Any
doubts regarding the duty to defend must be resolved in favor of the insured. Id. “[B]ecause they
tend to limit or avoid liability, exclusionary clauses are construed more strictly than coverage
clauses.” S.-Owners Ins. Co. v. MAC Contractors of Fla., LLC, 768 F. App'x 970, 972 (11th Cir.
2019) (quotation marks omitted). “Nevertheless, if the complaint clearly shows the applicability
of a policy exclusion, the insurer has no duty to defend.” Id. (quotation marks omitted).
IV. ANALYSIS
A. Whether the Court is Limited to the Four Corners of the Complaint
As an initial matter, the Court finds that the three attachments to the Motion can properly
be considered under the incorporation-by-reference doctrine as they are central to Plaintiff’s claims
and are undisputed. Johnson v. City of Atlanta, 107 F.4th 1292, 1300 (11th Cir. 2024) (“[W]hen
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resolving a motion to dismiss or a motion for judgment on the pleadings, a court may properly
consider a document not referred to or attached to a complaint under the incorporation-by-
reference doctrine if the document is (1) central to the plaintiff's claims; and (2) undisputed,
meaning that its authenticity is not challenged.”).
B. South Florida’s Denials
Next, the Court finds that, despite South Florida’s argument to the contrary, there are not
any alleged material disputes in facts created by South Florida’s denials. South Florida has only
directed the Court to two specific denials in its Answer which it claims preclude judgment on the
pleadings. First, South Florida expressly denies that Exhibit B to Plaintiff’s Complaint is the
current operative complaint in the underlying proceedings. While this may be true, Plaintiff has
attached the proper version of the complaint to the Motion, and the Court has already determined
that it can consider the attachments to the Motion. Second, South Florida expressly denies that
Plaintiff is entitled to reimbursement of all fees and costs incurred by Plaintiff in defending the
underlying lawsuit. However, this is not a factual allegation, but rather a question of law that must
be resolved by the Court. Oriental Republic of Uruguay v. Italba Corp., 606 F. Supp. 3d 1250,
1260 (S.D. Fla. 2022) (“Thus, for purposes of Uruguay's Motion for Judgment on the Pleadings,
this Court must disregard the parties’ averments on interest and costs and resolve such legal issues
itself.”). Therefore, South Florida’s argument on this sub-issue fails.
C. South Florida’s Affirmative Defenses
South Florida argues that its affirmative defenses preclude judgment on the pleadings.
Thus, the Court has carefully reviewed the five affirmative defenses. South Florida asserts as
follows: (1) Plaintiff is “precluded from denying coverage based upon a coverage defense about
which it failed to provide timely notification in a written reservation of rights” (First Affirmative
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Defense); (2) Plaintiff’s “reliance on any terms, limitations, conditions or exclusions are invalid
or said provisions of the Policies are ambiguous” and “the policy does not provide a ‘right of
reimbursement’ as Trisura alleges” (Second Affirmative Defense); (3) Plaintiff’s claims “may be
barred by the doctrines of waiver, estoppel and/or res judicata” (Third Affirmative Defense); (4)
Plaintiff is “barred by the doctrine of estoppel from denying its duty to defend and duty to
indemnify based upon exclusions for firearms or weapons, assault or battery, or abuse or
molestation, because Plaintiff previously issued CGL policies to South Florida, none of which
included endorsements excluding coverage for firearms or weapons, assault or battery, or abuse or
molestation, and failed to inform South Florida that the new policy would include the exclusionary
endorsements that Plaintiff relies on, which constitutes a misrepresentation of a material fact by
Plaintiff, which South Florida reasonably and detrimentally relied upon” (Fourth Affirmative
Defense); and (5) Plaintiff “should be barred from denying its duty to defend and duty to indemnify
based upon exclusions for firearms or weapons, assault or battery, or abuse or molestation, because
it failed to deliver the insurance policy at issue, in violation of Fla. Stat. § 626.922 and/or Fla. Stat.
§ 627.421” (Fifth Affirmative Defense). [DE 31].1
“Judgment on the pleadings is appropriate only when a party ‘fails to offer any pertinent
defense,’ not when one defense out of many is challenged.” Pete Vicari Gen. Contractor LLC v.
Ohio Cas. Ins. Co., No. 17-23733-CIV, 2018 WL 6308695, at *1 (S.D. Fla. Sept. 27, 2018)
(quoting Vann v. Inst. of Nuclear Power Operations, Inc., No. 1:09-cv-1169-CC-LTW, 2010 WL
11601718, at *2 (N.D. Ga. July 15, 2010)). “Federal courts are unwilling to grant a judgment under
1 Defendant Desiree Walker and Defendant Irache Partners, LLC, have filed similar affirmative defenses. [DEs 30,
32]. The same analysis thus applies to them.
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Rule 12(c) unless it is clear that the merits of the controversy can be fairly and fully decided in this
summary manner.” Id. (internal quotation marks omitted).
At this juncture, in light of the pending allegations in the Complaint and the Affirmative
Defenses, the merits of the controversy cannot be fairly and fully decided in a summary manner at
the judgment on the pleadings stage. First, South Florida and Irache are named as “Additional
Insureds” in the policy at issue. [DE 1-4 at 24–25]. Plaintiff has not cited any law that prevents an
additional insured from asserting the affirmative defenses that have been raised in this case.
Second, it is not clear on the face of the policy who actually signed the policy as the “Authorized
Representative,” and there are no allegations in the Complaint on this issue. Id. at 2. This is a
factual dispute that is material to the Fifth Affirmative Defense. Third, Plaintiff inconsistently
argues that South Florida, as an additional insured, had no role in negotiating the policy and cannot
raise certain affirmative defenses on that basis, and also that South Florida is bound by the policy’s
merger and integration clause. In light of the foregoing, this case should not be resolved through
judgment on the pleadings as South Florida, as well as the other two defendants, have raised
pertinent affirmative defenses that they should be permitted to fully investigate.
D. Plaintiff’s Duty to Defend
Plaintiff is correct that South Florida (as well as the other two Defendants) have failed to
specifically respond to Plaintiff’s argument that the Firearms or Weapons Exclusion, the Assault
or Battery Exclusion, and/or the Abuse or Molestation Exclusion bar any recovery by Defendants.
Rather, South Florida contends that Plaintiff has a duty to defend because it negligently failed to
warn Desiree Walker “of the lack of security measures taken by Defendants, as well as ‘[o]ther
acts of negligence as will be discovered,’ are not included within the exclusions for Assault and
Batter, Firearms or Weapons, or Abuse or Molestation.” [DE 56 at 9]. The Court is well-aware
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that courts within this district and the Eleventh Circuit have granted motions for judgment on the
pleadings in declaratory judgment cases involving the application of policy exclusions. However,
in light of the applicable law, the Court finds that judgment on the pleadings should not be granted
here given the affirmative defenses that have been plead. The Court further notes that Plaintiff
cites three cases in its papers that analyze similar policy exclusions to those at issue in this case
under Florida law. However, all three of those cases involve motions for summary judgment and
not motions for judgment on the pleadings. [DE 68 at 4–5]. In this particular case, the Motion
should be denied. This, of course, should be without prejudice to Plaintiff renewing its arguments
at the motion for summary judgment stage of the case.
E. Plaintiff’s Duty to Indemnify
South Florida argues that “the Court previously dismissed the portion of Trisura’s
Complaint that seeks declaratory relief as to Trisura’s duty to indemnify as premature.” [DE 56 at
10]. In light of the prior Order, the Court agrees that Plaintiff’s Motion must be denied to the extent
that it seeks judgment on the pleadings on indemnification.
V. CONCLUSION
In light of the foregoing, the undersigned United States Magistrate Judge
RECOMMENDS that Defendant’s Motion for Judgment on the Pleadings as to Count II
(Rescission) [DE 40] be DENIED for the reasons stated in this Report and Recommendation.
NOTICE OF RIGHT TO OBJECT
The parties shall have fourteen (14) days from the date of being served with a copy of this
Report and Recommendation within which to file written objections, if any, with United States
District Judge Aileen M. Cannon. Failure to file objections timely shall bar the parties from a de
novo determination by the District Judge of an issue covered in the Report and Recommendation
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and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions
contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474
U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1.
RESPECTFULLY SUBMITTED in Chambers at West Palm Beach, Florida, this 26th
day of March 2025.
WILLIAM MATTHEWMAN
United States Magistrate Judge
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