# Asbury

> District Court, M.D. Florida · August 17, 2026

URL: https://www.frixlaw.com/law-library/cases/11424090

## Case

- **Full name:** Robert Asbury and Teresa Asbury v. Bandit Industries Florida, Inc. and Sunbelt Rentals, Inc.
- **Court:** District Court, M.D. Florida
- **Decided:** August 17, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11424090. Public record. Not legal advice.