Asbury

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ROBERT ASBURY and TERESA ASBURY,

Plaintiff,

v. Case No. 8:26-cv-641-VMC-CPT

BANDIT INDUSTRIES FLORIDA, INC.,

and SUNBELT RENTALS, INC.,

Defendants.

SUNBELT RENTALS, INC.,

Crossclaim Plaintiff/Defendant,

v.

BANDIT INDUSTRIES FLORIDA, INC.,

Crossclaim Defendant/Defendant.

SUNBELT RENTALS, INC.,

Counterclaim-Plaintiff,

v.

ROBERT ASBURY,

Counterclaim-Defendant.

SUNBELT RENTALS, INC.,

Third-Party Plaintiff,

v.

KALEIDOSCAPES, LLC,

Third-Party Defendant.

/

ORDER

This matter is before the Court on consideration of

Plaintiff/Counterclaim-Defendant Robert Asbury and Third-

Party Defendant Kaleidoscapes, LLC’s Motion to Dismiss

Sunbelt Rentals, Inc.’s Counterclaim and Third-Party

Complaint (Doc. # 66), filed on July 20, 2026.

Defendant/Counterclaim-Plaintiff Sunbelt Rentals, Inc.

responded on August 5, 2026. (Doc. # 67). The Motion is

granted in part and denied in part.

I. Background

This case arises from an unfortunate accident in which

Robert Asbury lost his left leg in a stump grinder while on

a landscaping job for his company, Kaleidoscapes, LLC. (Doc.

# 27). Mr. Asbury is “the owner and manager of Kaleidoscapes,

LLC,” which “is a business that provides full-service lawn

maintenance and complete landscaping solutions.” (Id. at 9).

Mr. Asbury and his wife, Teresa Asbury, bring multiple claims

against the company that rented the stump grinder to him,

Sunbelt Rentals, Inc., and the company that manufactured the

stump grinder, Bandit Industries Florida, Inc. (Id. at 13-

22). According to the amended complaint, both Bandit and

Sunbelt defectively and negligently designed the stump

grinder and failed to warn Mr. Asbury about its dangers.

(Id.).

As relevant here, Sunbelt Rentals has filed a

counterclaim and third-party complaint against Mr. Asbury and

Kaleidoscapes. (Doc. # 52). It asserts six claims: breach of

contract/contractual indemnity against Mr. Asbury (Count I);

common law/implied indemnity against Mr. Asbury (Count II);

duty to defend and indemnify against Mr. Asbury (Count III);

breach of contract/contractual indemnity against

Kaleidoscapes (Count IV); common law/implied indemnity

against Kaleidoscapes (Count V); and duty to defend and

indemnify against Kaleidoscapes (Count VI). (Id.).

These claims are based on the agreements and forms Mr.

Asbury signed when he rented the stump grinder from Sunbelt.

Specifically, Mr. Asbury executed a rental contract with

Sunbelt on January 6, 2025, in which Mr. Asbury allegedly

agreed to indemnify and insure Sunbelt. (Id. at 2-4). The

rental contract provided in relevant part:

8. RELEASE AND INDEMNIFICATION. TO THE FULLEST

EXTENT PERMITTED BY LAW, CUSTOMER INDEMNIFIES,

RELEASES, HOLDS SUNBELT ENTITIES HARMLESS AND AT

SUNBELT’S REQUEST, DEFENDS SUNBELT ENTITIES (WITH

COUNSEL APPROVED BY SUNBELT), FROM AND AGAINST ALL

LIABILITIES, CLAIMS, LOSSES, DAMAGES, AND EXPENSES

(INCLUDING ATTORNEY’S AND/OR LEGAL FEES AND

EXPENSES) HOWEVER ARISING OR INCURRED, RELATED TO

ANY INCIDENT, DAMAGE TO PROPERTY, INJURY OR DEATH

OF ANY PERSON, CONTAMINATION OR ALLEGED

CONTAMINATION, OR VIOLATION OF LAW OR REGULATION

CAUSED BY OR CONNECTED WITH THE (a) ACCESS, USE,

POSSESSION OR CONTROL OF THE EQUIPMENT BY CUSTOMER

OR ANY THIRD PARTY THAT CUSTOMER IMPLICITLY OR

EXPLICITLY PERMITS TO ACCESS, USE, POSSESS OR

CONTROL THE EQUIPMENT DURING THE RENTAL PERIOD OR

(b) BREACH OF THIS CONTRACT, WHETHER OR NOT CAUSED

IN PART BY THE ACTIVE OR PASSIVE NEGLIGENCE OR OTHER

FAULT OF ANY PARTY INDEMNIFIED HEREIN AND ANY OF

THE FOREGOING ARISING OR IMPOSED IN ACCORDANCE WITH

THE DOCTRINE OF STRICT OR ABSOLUTE LIABILITY.

CUSTOMER ALSO AGREES TO WAIVE ITS WORKERS’

COMPENSATION IMMUNITY, TO THE EXTENT APPLICABLE.

CUSTOMER’S INDEMNITY OBLIGATIONS SHALL SURVIVE THE

EXPIRATION OR TERMINATION OF THIS CONTRACT. All of

Customer’s indemnification obligations under this

paragraph shall be joint and several.

9. INSURANCE. During the Rental Period, Customer

shall maintain, at its own expense, the following

minimum insurance coverage: (a) for Customers using

Equipment for non-personal use, general liability

insurance of not less than $1,000,000 per

occurrence, including coverage for Customer’s

contractual liabilities herein such as the release

and indemnification clause contained in Section 8;

(b) for Customers using Equipment for non-personal

use, property insurance against FMV thereof, unless

RPP is elected at the time of rental and paid for

prior to any Incident; (c) worker’s compensation

insurance as required by law; and (d) automobile

liability insurance (including comprehensive and

collision coverage, and uninsured/underinsured

motorist coverage), in the same amounts set forth

in subsections (a) and (b), if the Equipment is to

be used on any roadway. Such policies shall be

primary, non-contributory, on an occurrence basis,

contain a waiver of subrogation, name Sunbelt and

its agents as an additional insured (including an

additional insured endorsement) and loss payee, and

provide for Sunbelt to receive at least 30 days

prior written notice of any cancellation or

material change. Any insurance that excludes boom

damage or overturns is a breach. Customer shall

provide Sunbelt with certificates of insurance []

evidencing the coverages required above prior to

any rental and any time upon Sunbelt’s request. To

the extent Sunbelt Entities carry any insurance,

Sunbelt Entities’ insurance will be considered

excess insurance. The insurance required herein

does not relieve Customer of its responsibilities,

indemnification, or other obligations provided

herein, or for which Customer may be liable by law

or otherwise.

(Doc. # 52-1 at 3) (emphasis added).

“Furthermore, [Mr. Asbury] and/or [Kaleidoscapes] agreed

to accept the terms and conditions when [Mr. Asbury] completed

the Application for Credit & Rental Agreement, online prior

to the subject rental.” (Doc. # 52 at 4; Doc. # 52-2). Mr.

Asbury “also signed the Individual Person Guarantee on the

Application for Credit and Rental Agreement.” (Doc. # 52 at

5; Doc. # 53-3). Yet, “both [Mr. Asbury] and [Kaleidoscapes]

have failed to abide by the terms of these agreements.” (Doc.

# 52 at 5).

Now, Mr. Asbury and Kaleidoscapes move to dismiss the

counterclaim and third-party complaint. (Doc. # 66). Sunbelt

Rentals has responded (Doc. # 67), and the Motion is ripe for

review.

II. Legal Standard

On a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), this Court accepts as true all the

allegations in the complaint and construes them in the light

most favorable to the plaintiff. Jackson v. Bellsouth

Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,

the Court favors the plaintiff with all reasonable inferences

from the allegations in the complaint. Stephens v. Dep’t of

Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990).

But,

[w]hile a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action

will not do. Factual allegations must be enough to

raise a right to relief above the speculative

level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

citations omitted). Courts are not “bound to accept as true

a legal conclusion couched as a factual allegation.” Papasan

v. Allain, 478 U.S. 265, 286 (1986). The Court must limit its

consideration to well-pleaded factual allegations, documents

central to or referenced in the complaint, and matters

judicially noticed. La Grasta v. First Union Sec., Inc., 358

F.3d 840, 845 (11th Cir. 2004), abrogated on other grounds by

Twombly, 550 U.S. 544.

III. Analysis

A. Counts I and IV

In Counts I and IV, Sunbelt asserts claims for breach of

contract/contractual indemnity against Mr. Asbury and

Kaleidoscapes.1 (Doc. # 52 at 5-6, 8-9). “As the direct and

proximate result of [Mr. Asbury’s and Kaleidoscapes’] failure

to insure and indemnify, [Sunbelt] has incurred and will

continue to incur attorneys’ fees and costs and expenses, and

[Sunbelt] will suffer direct and consequential damages in an

amount not yet known, . . . and is entitled to recover same

from” Mr. Asbury and Kaleidoscapes. (Id.).

Under Florida law, the “elements of a breach of contract

action are: (1) a valid contract; (2) a material breach; and

(3) damages.” Abbott Lab’ys, Inc. v. Gen. Elec. Cap., 765 So.

2d 737, 740 (Fla. 5th DCA 2000). Mr. Asbury and Kaleidoscapes

1 The rental agreement states that the contract, “including

any related tort claims, shall be governed by the laws of

South Carolina, without regard to any conflicts of law

principles.” (Doc. # 52-1 at 3). Notably, both parties have

only cited Florida law in their briefing. (Doc. ## 66, 67).

“[A] party waives its opportunity to rely on non-forum law

where it fails to timely provide — typically in its complaint

or the first motion or response when choice-of-law matters —

the sources of non-forum law on which it seeks to rely.” Sun

Life Assurance Co. of Canada v. Imperial Premium Fin., LLC,

904 F.3d 1197, 1208 (11th Cir. 2018). For purposes of this

Motion, the Court will assume that Sunbelt has waived the

chance to rely on South Carolina law and will instead analyze

the claims under Florida law.

argue this claim must be dismissed because Sunbelt has failed

to plausibly allege the damages element. According to them,

the counterclaim/third-party complaint “contains no factual

allegations from which the Court can reasonably infer that

the insurance [Mr.] Asbury allegedly was required to procure

would have afforded Sunbelt either a defense or indemnity for

the claims asserted in the underlying action.” (Doc. # 66 at

5).

The Motion is denied as to this argument. “The measure

of damages in a negligent procurement of insurance case is

what would have been covered had the insurance been properly

obtained.” Capell v. Gamble, 733 So. 2d 534, 535 (Fla. 1st

DCA 1998). For the pleading stage, the counterclaim/third-

party complaint plausibly alleges that the insurance Mr.

Asbury and Kaleidoscapes were required to obtain would have

covered the accident in which Mr. Asbury was injured. The

terms of the rental agreement require insurance coverage for

the commercial use of the rented stump grinder and also

specify that Mr. Asbury and Kaleidoscapes would indemnify and

defend Sunbelt for all liabilities, claims, or damages

“related to any . . . injury or death of any person, . . .

caused by or connected with the (a) access, use, possession

or control of the equipment by Customer.” (Doc. # 52-1 at 3).

This broad provision supports that the insurance coverage

that should have been procured would have covered the injury

to Mr. Asbury caused by the rented stump grinder.

Mr. Asbury and Kaleidoscapes also argue this claim

(along with the other claims against Kaleidoscapes) should be

dismissed as to Kaleidoscapes. According to them, the

counterclaim/third-party complaint “alleges no facts

establishing that Kaleidoscapes ever became a party to any

agreement with Sunbelt or otherwise became bound by the

contractual obligations upon which those claims depend.”

(Doc. # 66 at 11).

The Court rejects this argument as to all claims against

Kaleidoscapes. True, Kaleidoscapes is not an explicit

signatory on the agreements. Still, “[u]nder Florida law,

disclosed [principals] are considered to be parties to

contracts entered into by their agents, acting with

authority.” 727 Randolph St., LLC v. Comer, No. 17CV80-

MW/CAS, 2019 WL 12288347, at *3 (N.D. Fla. July 10, 2019);

see also Babul v. Golden Fuel, Inc., 990 So. 2d 680, 683 (Fla.

2d DCA 2008) (“[A]n agent acting within the course and scope

of its agency relationship with a disclosed principal is not

liable for the debts or obligations of the principal arising

from contracts which the agent may negotiate or execute on

behalf of such disclosed principal.” (citation omitted)).

“[I]f the contracting party knows the identity of the

principal for whom the agent purports to act, the principal

is deemed to be disclosed. A dispute concerning the

contracting party’s knowledge of the identity of the

principal for whom the agent claims to act presents an issue

of fact.” Babul, 990 So. 2d at 683-84 (citations and internal

quotation marks omitted).

Taking the allegations in the light most favorable to

Sunbelt, the counterclaim/third-party complaint plausibly

alleges that Mr. Asbury signed the agreements as an agent of

Kaleidoscapes. See WP Prop. Holdings I, LLC v. JR&Co., No.

2:24-cv-778-KCD-NPM, 2025 WL 3759228, at *2 (M.D. Fla. Dec.

30, 2025) (“JR&Co alleges that Westpoint signed the contract

as an agent for WP Property. That is sufficient to state a

claim [against WP Property].”). As alleged in both the amended

complaint and Sunbelt’s counterclaim/third-party complaint,

Mr. Asbury is “the owner and manager of Kaleidoscapes,” which

is a lawncare business. (Doc. # 52 at 2). Additionally, Mr.

Asbury “entered into a rental agreement with [Sunbelt] to

acquire the subject stump grinder for use on ‘the

Kaleidoscapes, LLC project.’” (Id.).

Thus, Counts I and IV survive the pleading stage. Mr.

Asbury and Kaleidoscapes may raise these issues again at

summary judgment.

B. Counts II and V

In Counts II and V, Sunbelt asserts, “in the alternative”

to Counts I and IV, claims based on “the common-law theory of

implied contract and implied indemnification” against Mr.

Asbury and Kaleidoscapes. (Doc. # 52 at 6, 9).

Mr. Asbury and Kaleidoscapes move to dismiss these

claims for two reasons. First, to the extent these claims are

based on an implied contract, they insist that “Florida law

does not recognize an implied contract concerning a subject

already governed by an express contract.” (Doc. # 66 at 7).

Second, as to the common-law indemnity aspect of these claims,

Mr. Asbury and Kaleidoscapes argue that the underlying

amended complaint’s allegations “foreclose Sunbelt’s claim,”

with Sunbelt’s liability for Mr. Asbury’s claims “aris[ing]

from Sunbelt’s own alleged conduct or its own legal

responsibility for the product, not from liability imposed

solely because of [Mr.] Asbury’s or Kaleidoscapes’ conduct.”

(Id. at 8). The Court agrees.

Notably, Sunbelt does not argue that it has sufficiently

pled these claims under the theory of “implied contract.”

(Doc. # 67). Instead, Sunbelt merely argues that these counts

are claims “for common law indemnity” (Id. at 9-10), which

leads the Court to conclude Sunbelt was merely using “implied

contract” as a description of the “common-law indemnity”

claim rather than as a separate claim. Thus, Sunbelt has

abandoned any argument that Counts II and V plausibly allege

a claim for implied contract (rather than common-law

indemnity). See Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d

1301, 1324 (N.D. Ga. 2001) (“When a party fails to respond to

an argument or otherwise address a claim, the Court deems

such argument or claim abandoned.”); Barnes v. AstraZeneca

Pharms. LP, 253 F. Supp. 3d 1168, 1171 (N.D. Ga. 2017) (“When

an argument is raised upon [a] motion to dismiss that a claim

is subject to dismissal, and the non-moving party fails to

respond to such an argument, such claims are deemed abandoned

and subject to dismissal.” (citation omitted)). Counts II and

V are dismissed as to the implied contract theory.

Next, Counts II and V are dismissed as to the common-

law indemnity theory. “Indemnity is a right which inures to

one who discharges a duty owed by him, but which, as between

himself and another, should have been discharged by the other

and is allowable only where the Whole fault is in the one

against whom indemnity is sought.” Houdaille Indus., Inc. v.

Edwards, 374 So. 2d 490, 492–93 (Fla. 1979). Indemnity “shifts

the entire loss from one who, although without active

negligence or fault, has been obligated to pay, because of

some vicarious, constructive, derivative, or technical

liability, to another who should bear the costs because it

was the latter’s wrongdoing for which the former is held

liable.” Id. at 493. In short, “[i]n order for a common law

indemnity claim to stand, a two-pronged test must be

satisfied: (1) the indemnitee must be faultless and (2) the

indemnitee’s liability must be solely vicarious for the

wrongdoing of another.” Zeiger Crane Rentals, Inc. v. Double

A Indus., Inc., 16 So. 3d 907, 911 (Fla. 4th DCA 2009).

Regardless of whether the facts alleged in the

underlying amended complaint are true, Sunbelt’s liability

for those claims against it hinges upon its own fault — not

Mr. Asbury’s or Kaleidoscapes’ fault. See (Doc. # 27 at 13-

22) (basing claims against Sunbelt on Sunbelt’s alleged

defective and negligent design and failure to warn). Thus, if

Sunbelt is held liable on those claims, that liability will

be based on Sunbelt’s own wrongdoing. If Sunbelt is found not

to be at fault (with only Mr. Asbury or Kaleidoscapes at fault

for the accident), there will be no judgment against Sunbelt

to indemnify. Common-law indemnity for such claims is

therefore unavailable to Sunbelt. See Houdaille Indus., Inc.,

374 So. 2d at 493 (“Florida Wire’s claim that Houdaille’s

negligence solely and proximately caused the injury to the

deceased employee does not establish a claim for indemnity

since, if this is the case, a judgment cannot properly be

awarded against Florida Wire in favor of the plaintiff since

Florida Wire cannot be held vicariously or constructively

liable for Houdaille’s acts.”); Zeiger Crane Rentals, Inc.,

16 So. 3d at 911–12 (“[I]t is a legal impossibility for a

gross negligence claim under section 440.10(1)(e), Florida

Statutes and a common law indemnity claim to be simultaneously

successful because each claim requires proof of fault that

cannot co-exist with the other claim’s requirement. If a

plaintiff is able to prove that the same-project

subcontractor’s own gross negligence is the major

contributing cause of his injury, then the subcontractor’s

direct fault will preclude its recovery in the common law

indemnity claim. Conversely, if the subcontractor is able to

prove that a third-party is wholly at fault for the

plaintiff’s injury, thus satisfying the requirement for

common law indemnity, the plaintiff will not succeed in his

claim under section 440.10(1)(e), Florida Statutes because

the subcontractor’s own gross negligence is not the major

contributing cause of his injury.” (citation omitted)).

Counts II and V are dismissed in their entirety without

prejudice.

C. Count III

In Count III, Sunbelt asserts a claim against Mr. Asbury

for failure “to procure general liability insurance that

named [Sunbelt] as an additional insured” and for failure to

“defend and indemnify [Sunbelt] from the claims asserted by

[Mr. and Mrs. Asbury] in this action.” (Doc. # 52 at 7).

Mr. Asbury and Kaleidoscapes argue this claim is

duplicative of the breach of contract claim in Count I.

According to them, “[b]oth counts are predicated upon the

same agreements, same operative facts, the same alleged

contractual obligations, and the same claimed damages” and

the counterclaim/third-party complaint “identifies no

separate contractual undertaking or distinct breach alleged

in Count III that is not already encompassed within Count I.”

(Doc. # 66 at 9-10).

The Motion is denied. While the counterclaim/third-party

complaint could have been pled more clearly, Count III

specifically invokes the duty to defend, which is not

explicitly invoked in Count I. (Doc. # 52 at 5-7). As Sunbelt

explains, “Count III, while similar to Count I, makes a claim

for breach of contract based on the Movant’s failure to

provide a defense to Sunbelt, which is distinct from Count

I’s claim for breach of contract based on [Mr.] Asbury’s

failure to indemnify and insure Sunbelt against claims made

related to use of the subject grinder.” (Doc. # 67 at 10).

Indeed, the “duty to defend is entirely separate from the

duty to indemnify.” Eckerd Youth Alternatives, Inc. v.

Devereux Found., Inc., 366 So. 3d 1154, 1158 (Fla. 2d DCA

2023). Thus, this claim is not duplicative to the extent it

is based on the duty to defend. The Court will not dismiss

this claim.

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

(1) Plaintiff/Counterclaim-Defendant Robert Asbury and

Third-Party Defendant Kaleidoscapes, LLC’s Motion to

Dismiss Sunbelt Rentals, Inc.’s Counterclaim and Third-

Party Complaint (Doc. # 66) is GRANTED in part and DENIED

in part.

(2) Counts II and V are dismissed. If Sunbelt wishes to amend

these claims, it must file a motion to amend with its

proposed amended counterclaim/third-party complaint

attached.

(3) Answer to the remaining claims due within 14 days of

this Order.

DONE and ORDERED in Chambers in Tampa, Florida, this

17th day of August, 2026.

tine In. Mecmephy Cno27h

VIR IA M. HERNANDEZ’*COVINGTON

UNITED STATES DISTRICT JUDGE

17