29 Fla. L. Weekly Fed. D59a

BARAKI, INC., f/k/a Opa Greek Cafe, Inc., and JEFFREY GRABOWSKI, Plaintiffs, v. COVINGTON SPECIALTY INSURANCE COMPANY, Defendant. U.S. District Court, Middle District of Florida, Tampa Division. Case No. 8:18-cv-2313-MSS-SPF. December 7, 2021. Mary S. Scriven, Judge. Counsel: James J. Dowling, James J. Dowling, P.A., Tarpon Springs; and Gerasimos “Jerry” Theophilopoulos, Theophilopoulos Law, P.A., Tarpon Springs, for Plaintiff, Baraki, Inc. Ian R. Leavengood, St. Petersburg, for Plaintiff, Grabowski. Michael K. Kiernan and Ashley R. Kellgren, for Defendant.ORDER

THIS CAUSE comes before the Court for consideration of Plaintiff Baraki, Inc.’s Motion for Summary Judgment on the Issue of Coverage, (Dkt. 28); Defendant Covington Specialty Insurance Company’s Response in Opposition and Cross-Motion for Final Summary Judgment, (Dkt. 29); Plaintiff Baraki, Inc. and Plaintiff Jeffrey Grabowski’s respective Responses in opposition thereto, (Dkts. 31, 32); Defendant Covington Specialty Insurance Company’s Reply, (Dkt. 34); and Plaintiff Jeffrey Grabowski’s Sur-Reply. (Dkt. 46) Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS Plaintiff Baraki, Inc.’s Motion for Summary Judgment, (Dkt. 28), and DENIES Defendant Covington Specialty Insurance Company’s Cross-Motion for Final Summary Judgment. (Dkt. 29)

I. BACKGROUND

A. PROCEDURAL POSTURE

On August 21, 2018, Plaintiff Baraki, Inc. (“Plaintiff” or “Baraki”) filed this action in state court against Jeffrey Grabowski (“Grabowski”) and Covington Specialty Insurance Company (“Covington”). Pursuant to the Complaint, Baraki seeks a declaration that Covington is contractually obligated under a commercial general liability insurance policy to cover claims asserted against Baraki in connection with injuries suffered by Grabowski on or around March 9, 2018. (Dkt. 2) On September 19, 2018, Covington removed this action. (Dkt. 1) On November 5, 2018, following Covington’s Motion to Realign the Parties, (Dkt. 7), the Court entered an Order converting Grabowski from a named-party Defendant to a named-party Plaintiff. (Dkt. 20)

Baraki moved for summary judgment on the issue of coverage, arguing that Covington has a duty to defend it in the Underlying Action pursuant to the reasonable force exception contained in the Excepted or Intended Injury Exclusion. (Dkt. 28 at 3-4) Alternatively, Baraki asserts that the terms of the Insurance Policy are ambiguous or unreasonably applied to the facts of the claim, and therefore, Covington is obligated to defend and indemnify in this action. (Dkt. 2 at ¶ 11)

Covington responded and filed a cross-motion for summary judgment, contending that this case presents a straightforward application of an assault and battery exclusion, which unambiguously excludes the claims at issue. (Dkt. 29) Consequently, Covington asserts that it has no duty to defend or indemnify Plaintiff against any of Grabowski’s claims.

B. FACTUAL SUMMARY

The Parties appear to agree on the following facts:

On December 4, 2018, Grabowski filed an action in state court against Baraki and Hussein Mahmoud Rafraf (collectively, “Defendants”), asserting claims for negligence, negligent hiring or retention, battery, and vicarious liability (hereinafter, “Underlying Action”). See Grabowski v. Baraki, Inc. f/k/a, Opa Greek Café, Inc. and Hussein Mahmoud Rafraf, Case No. 18-007889-CI, Docket No. 5. The claims stemmed from a March 9, 2018 incident that took place at a “bar, restaurant and/or café” (hereinafter, “Bar”) formerly known as Opa Greek Café, but identified in this action as Baraki, Inc. (Id. at Docket No. 1, ¶ 2) Baraki is owned by Defendant Rafraf and is located at 25 Dodecanese Blvd, Tarpon Springs, Florida. (Id.)

In the Underlying Action, Grabowski alleges as follows:

6. On or about March 9, 2018, at approximately 11:05 pm ET, Plaintiff Grabowski, sought entry to the Bar to patronize the Bar.

7. On or about March 9, 2018, at approximately 11:05 pm ET, Defendant Rafraf was working for Defendant Opa Café as, in part, its sole security officer or “bouncer.”

8. When Plaintiff Grabowski sought entry to the Bar, as articulated above, Defendant Rafraf, on Defendant Opa Café’s behalf, and with its knowledge, consent and approval, prohibited Plaintiff Grabowski from entering the Bar.

9. Plaintiff Grabowski and Defendant Rafraf had a verbal altercation and disagreement when Plaintiff Grabowski sought entry to the Bar.

10. Defendant Rafraf forcefully blocked Plaintiff Grabowski from entering the Bar.

11. Defendant Rafraf subsequently and forcefully struck Plaintiff Grabowski.

12. Plaintiff Grabowski, as a result of being struck by Defendant Rafraf, fell, hitting his head.

13. Defendant Rafraf struck Plaintiff Grabowski on the Bar’s premises, and Plaintiff Grabowski hit his head on the Bar’s premises.

(Id. at ¶¶ 6-13) Grabowski contends that the injuries he suffered were a result of the Defendants’ “poor judgment in not providing adequately trained and disinterested security services at the [B]ar” because “Defendant Rafraf was the only person providing security services” on March 9, 2018. (Id. at ¶¶ 20-24) Grabowski further contends that “Defendants exercised poor judgment in using excessive force in their attempt to re[s]train [Grabowski] and deny his access to the Bar.” (Id. at ¶ 21)

On or around July 24, 2018, Baraki received a certified letter detailing Grabowski’s alleged injuries and demanding payment of $200,000.00. (Dkt. 1-1 at 73-75) Thereafter, Baraki notified Covington of Grabowski’s allegations pursuant to the directives of the Commercial General Liability Insurance Policy, Policy Number VBA595675, (“Insurance Policy”) that Covington issued to Baraki covering the period of January 28, 2018 to January 28, 2019. (Dkt. 2 at ¶ 9; Dkt. 3 at ¶ 9; see also Dkt. 1-1 at 70-72)

Two provisions of the Insurance Policy are relevant to this action: the reasonable force exception to the Excepted or Intended Injury Exclusion (hereinafter, Reasonable Force Exception”) and the Assault and Battery Exclusion.

The Excepted or Intended Injury Exclusion provides, in relevant part, as follows:

This insurance does not apply to:

a. Expected Or Intended Injury

“Bodily injury” or “property damage” expected or intended from the standpoint of the insured. This exclusion does not apply to “bodily injury” resulting from the use of reasonable force to protect persons or property.

(Dkt. 1-1 at 31) (emphasis added). The Reasonable Force Exception in this exclusion refers to the italicized language in the last sentence.

The Assault and Battery Exclusion provides, in relevant part, as follows:EXCLUSION — ASSAULT AND BATTERY

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

A. The following is added as an item to SECTION I — COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 2. Exclusions; COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY, 2. Exclusions; and COVERAGE C MEDICAL PAYMENTS, 2. Exclusions:

1. Any claim or “suit” to recover damages for “bodily injury”, “property damage”, “personal and advertising injury” or medical expenses arising from actual or alleged “assault” and/or “battery” and any claim or “suit” for false arrest, false detention or false imprisonment, where such false arrest, false detention or false imprisonment is connected to or arises in the sequence of events related to actual or alleged “assault” and/or “battery”. We are under no duty to defend or indemnify an insured 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, his officers, “employees”, agents or servants; or by any other person lawfully or otherwise on, at or near premises owned or occupied by the insured; or by any other person;

b. The alleged failure or fault of the insured, or his officers, “employees”, agents or servants, in the hiring, training, supervision, retention or control of any person, whether or not an officer, “employee”, agent or servant of the insured;

c. The alleged failure or fault of the insured, or his officers, “employees”, agents or servants, to attempt to prevent, suppress, bar or halt any such conduct;

***

h. Any other cause of action or claim arising out of or as a result of 1.a. through 1.g. above.

***

3. We shall have no duty to defend or indemnify any claim, demand, “suit”, action, litigation, arbitration, alternative dispute resolution or other judicial or administrative proceeding seeking damages, equitable relief, injunctive relief, or administrative relief where:

a. Any actual or alleged injury arises out of any combination of an “assault” or “battery”-related cause and a non-“assault” or “battery”-related cause.

b. Any actual or alleged injury arises out of a chain of events which includes “assault” or “battery”, regardless of whether the “assault” or “battery” is the initial precipitating event or a substantial cause of injury.

c. Any actual or alleged injury arises out of “assault” or “battery” as a concurrent cause of injury, regardless of whether the “assault” or “battery” is the proximate cause of injury.

Further, no coverage or duty to defend is provided if the underlying operative facts constitute an “assault” and/or “battery” irrespective of whether the claim alleges failure to provide adequate security in any way.

B. The following are added as items to SECTION V — DEFINITIONS:

1. “Assault” is defined as the apprehension of harmful or offensive contact between or among two or more persons by threats through words or deeds, and includes, but is not limited to, apprehension of contact of a physical or sexual nature. “Assault” includes apprehension arising out of the distribution, demonstration, accidental discharge, gunsmithing, ownership, maintenance or use of firearms or “weapons”.

2. “Battery” is defined as the harmful or offensive contact between or among two or more persons and includes, but is not limited to, contact of a physical or sexual nature. “Battery” includes harm arising out of the distribution, demonstration, accidental discharge, gunsmithing, ownership, maintenance or use of firearms or “weapons”.

3. For the purpose of this endorsement only, the definition of “employee” is amended to include any:

a. Person who is performing any work or providing any service for or on behalf of any insured or contractor or subcontractor of any insured, whether on a paid or volunteer basis including day laborers;

b. “Temporary worker”;

c. “Volunteer worker”;

d. Person who is contracted with you or with any insured for services; and

e. Person who is employed by, leased to, contracted with, “temporary worker” of or “volunteer worker” of any entity that is contracted with:

(1) You or with any insured for services; or

(2) Others on your behalf for services.

4. “Weapons” are defined as instruments of an offensive or defensive nature and include but are not limited to batons, bows, crossbows, arrows, knives, mace, stun guns, swords or any wielded objects used to inflict injury or harm.

C. The terms of this exclusion apply to the entire General Liability Coverage Part, including any endorsements or coverage extensions therein.

All other terms and conditions of this policy remain unchanged.

(Dkt. 1-1 at 51-52)

In a letter dated August 6, 2018, Covington notified Grabowski of its denial of coverage for the claims he asserted against its insured, Baraki, contending that “any claim for bodily injury or medicals expense arising from assault or battery is excluded” from coverage. (Dkt. 1-1 at 76) Although Covington acknowledged that the demand letter “indicate(s) [that] this [action] is a premise[s] liability claim,” it maintained that “the facts of the loss all indicate [that Grabowski] was struck by another person” and the “medicals also indicate an assault.” (Id.) Accordingly, Covington denied coverage for the Underlying Action.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the movant can show there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fennell v. Gilstrap, 559 F.3d 1212, 1216 (11th Cir. 2009) [21 Fla. L. Weekly Fed. C1571a] (citing Welding Servs., Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir. 2007) [21 Fla. L. Weekly Fed. C246a]). The facts that are material depend on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).

Evidence is reviewed in the light most favorable to the non-moving party. Fennell, 559 F.3d at 1216 (citing Welding Servs., Inc., 509 F.3d at 1356). A moving party discharges its burden on a motion for summary judgment by showing or pointing out to the Court that there is an absence of evidence to support the non-moving party’s case. Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001) [14 Fla. L. Weekly Fed. C595a] (citation omitted).

When a moving party has discharged its burden, the non-moving party must then designate specific facts (by its own affidavits, depositions, answers to interrogatories, or admissions on file) that demonstrate there is a genuine issue for trial. Porter v. Ray, 461 F.3d 1315, 1320-1321 (11th Cir. 2006) [22 Fla. L. Weekly Fed. C1918a] (citation omitted). The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“[C]onclusory allegations without specific supporting facts have no probative value.”). “If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact . . . the court may grant summary judgment if the motion and supporting materials . . . show that the movant is entitled to it.” Fed. R. Civ. P. 56(e). “Summary judgment is appropriate in declaratory judgment actions seeking a declaration of coverage when the insurer’s duty, if any, rests solely on the applicability of the insurance policy, the construction and effect of which is a matter of law.” Amerisure Ins. Co. v. Auchter Co., 16-CV407-J-39, 2018 WL 4293149, at *10 (M.D. Fla. 2018) (citing Northland Cas. Co. v. HBE Corp., 160 F. Supp. 2d 1348, 1358 (M.D. Fla. 2001)); see also Maryland Cas. Co. v. Fla. Atl. Orthopedics. P.L., 771 F. Supp. 2d 1328, 1331-32 (S.D. Fla. 2011).

“The standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party files a motion, but simply requires a determination of whether either of the parties deserves judgment as a matter of law on the facts that are not disputed.” S. Pilot Ins. Co. v. CECS, Inc., 52 F. Supp. 3d 1240, 1242-43 (N.D. Ga. 2014) (citing Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005) [18 Fla. L. Weekly Fed. C525a]). “Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts.” Id. at 1243 (citing United States v. Oakley, 744 F.2d 1553, 1555-56 (11th Cir. 1984)).

III. DISCUSSION

A. GOVERNING LAW

Under Florida law, “an insurance policy is treated like a contract, and therefore ordinary contract principles govern the interpretation and construction of such a policy.” Pac. Emp’rs Ins. Co. v. Wausau Bus. Ins. Co., No. 3:05-cv-850-J-32TEM, 2007 WL 2900452, at *4 (M.D. Fla. Oct. 2, 2007) (citing Graber v. Clarendon Nat’l Ins. Co., 819 So. 2d 840, 842 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D1158a]).

Additionally, Florida law provides that the interpretation of an insurance policy is a question of law for the court. Technical Coating Applicators, Inc. v. U.S. Fidelity & Guaranty Co., 157 F.3d 843, 844 (11th Cir. 1998). “In insurance coverage cases under Florida law, courts look at the insurance policy as a whole and give every provision its full meaning and operative effect.” State Farm Fire & Cas. Co. v. Steinberg, 393 F.3d 1226, 1230 (11th Cir. 2004) [18 Fla. L. Weekly Fed. C133a] (internal quotations omitted). “ ‘[I]f a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision.’ ” Phila. Indem. Ins. Co. v. Fla. Mem’l Univ., 307 F. Supp. 3d 1343, 1347 (S.D. Fla. 2018) (quoting Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) [19 Fla. L. Weekly Fed. C56a]).

Moreover, “policy provisions excluding or limiting the insurer’s liability are construed more strictly than coverage provisions.” Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So. 2d 26, 30 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b] (internal citations omitted). Such limiting provisions must be construed in favor of the insured if they are ambiguous or reasonably susceptible to more than one meaning. Id. (citing Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So. 2d 1135, 1138 (Fla. 1998) [23 Fla. L. Weekly S59a]). Notably, however, “[i]t is only ‘when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction,” that such an ambiguity will be construed in favor of coverage. Phila. Indem. Ins. Co., 307 F. Supp. 3d at 1347 (quoting Taurus, 913 So. 2d at 532).

“The mere fact that an insurance provision is complex or requires analysis does not make it ambiguous.” S.-Owners Ins. Co. v. Easdon Rhodes & Assocs. LLC, 872 F.3d 1161, 1164 (11th Cir. 2017) [27 Fla. L. Weekly Fed. C239a] (internal quotations omitted). Instead, a policy provision “is considered ambiguous if the relevant policy language is susceptible to more than one reasonable interpretation.” James River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008) [21 Fla. L. Weekly Fed. C1012a] (internal quotation omitted)

B. DUTY TO DEFEND AND DUTY TO INDEMNIFY

1. LEGAL STANDARD

“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, 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) [21 Fla. L. Weekly Fed. D18a]).¹ Put simply, the eight corners rule provides that an insurer’s duty to defend its insured against a legal action “arises when the relevant pleadings allege facts that fairly and potentially bring the suit within policy coverage.” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1323 (11th Cir. 2014) [24 Fla. L. Weekly Fed. C1286a] (citation omitted). “Thus, an insurer is obligated to defend a claim even if it is uncertain whether coverage exists under the policy.” Id. (quoting Mid-Continent Cas. Co. v. Am. Pride Bldg. Co., LLC, 601 F.3d 1143, 1149 (11th Cir. 2010) [22 Fla. L. Weekly Fed. C639a] (internal citation omitted)). However, “an insurer has no duty to defend a suit against an insured if the complaint upon its face alleges a state of facts that fails to bring the case within the coverage of the policy.” Marr Invs., Inc. v. Greco, 621 So. 2d 447, 449 (Fla. 4th DCA 1993); Clarendon America Ins. Co. v. Burlington Ins. Co., 677 F. Supp. 2d 1317, 1321 (S.D. Fla. 2009).

An insurer’s duty to indemnify, on the other hand, “must be determined by analyzing the policy coverage in light of the actual facts in the underlying case.” Diamond State Ins. Co. v. Boys’ Home Ass’n, Inc., 172 F. Supp. 3d 1326, 1341-42 (M.D. Fla. 2016) (quoting J.B.D. Constr., Inc. v. Mid-Continent Cas. Co., 571 F. App’x 918, 927 (11th Cir. 2014)). An insurer’s duty to indemnify extends only to the portion of a judgment or settlement that stems from the covered claim. See Highland Holdings, Inc. v. Mid-Continent Cas. Co., No. 8:14-cv-1334-T-23TBM, 2016 WL 3447523, at *2 (M.D. Fla. June 23, 2016). Thus, “the duty to indemnify is dependent upon the entry of a final judgment, settlement, or a final resolution of the underlying claims.” Diamond State Ins. Co.,172 F. Supp. 3d at 1342 (M.D. Fla. 2016) (quoting J.B.D. Constr., Inc., 571 F. App’x at 927); see also Fid. Nat. Prop. & Cas. Co. v. Boardwalk Condo. Ass’n, Inc., No. 3:07CV278/MCREMT, 2010 WL 1911159, at *7 (N.D. Fla. May 12, 2010) (“[T]he duty to indemnify is not ripe for adjudication in a declaratory judgment action until there is a factual determination that the [insured] is liable in the underlying suit.”).

2. COVINGTON’S DUTY TO DEFEND

To prevail on this Motion, Covington must show that there is no reading of the complaint in the Underlying Action that invokes any basis for coverage under its Policy.

This analysis requires the Court in the first instance to consider the four corners of the contract. Where, as here, “the provisions of an insurance policy are at issue, any ambiguity which remains after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer.” Wash. Nat’l Ins. Corp. v. Ruderman, 117 So. 3d 943, 949-50 (Fla. 2013) [38 Fla. L. Weekly S616b]. (internal citations omitted). As noted above, a “policy provision is considered ambiguous if the relevant policy language is susceptible to more than one reasonable interpretation.” James River Ins. Co., 540 F.3d at 1274. Thus, where “one reasonable interpretation of the policy provisions would provide coverage, that is the construction which must be adopted.” Wash. Nat’l Ins. Corp., 117 So. 3d at 950 (internal citations omitted). Furthermore, “policy provisions excluding or limiting the insurer’s liability are construed more strictly than coverage provisions.” Gen. Star Indem. Co., 874 So. 2d at 30.

If the facts are not in dispute and the ambiguity is “patent,” i.e. it appears on the face of the contract, the court may resolve the ambiguity as a matter of law by liberally interpreting the language in favor of coverage. Da Costa v. General Guaranty Ins. Co. of Florida, 226 So. 2d 104, 105 (Fla. 1969).

Turning to the Policy, the Court finds that the Reasonable Force Exception and the Assault and Battery Exclusion, when read together, conflict to the extent that reasonable force could constitute an assault and/or battery. Thus, injury due to reasonable force would be excepted from exclusion under the Reasonable Force Exception, which is a provision of coverage, and it would simultaneously be excluded from coverage under the assault and battery exclusion.

In so finding, the Court notes that the interplay between the precise policy provisions at issue has not yet been analyzed in Florida courts. However, Covington offers several non-binding cases in support of its contention that the Reasonable Force Exception does not limit the effect of the Assault and Battery Exclusion. (Dkt. 29 at 13-14) These cases, however, dealt with unambiguous policy provisions.

For example, in Cohne v. Navigators Specialty Ins. Co., 361 F. Supp. 3d 132, 134 (D. Mass. 2019), the Massachusetts district court considered a similar insurance policy dispute regarding the applicability of a reasonable force exception, identical to the one in the instant matter, and an assault and battery endorsement included later in the policy. As Plaintiff Grabowski correctly notes in his Response to Covington’s Motion, the assault and battery exclusion in the Cohne insurance policy included clarifying language that is conspicuously absent from the Policy under consideration in this action. (Dkt. 32 at 6) Significantly, the Cohne policy expressly contemplated a conflict between its assault and battery exclusion and the reasonable force coverage provision and expressly addressed which provision would control. It provided, thusly: “the Policy neither applies to injuries arising from assault and battery . . . even when such acts are intended to protect persons or property.” Cohne, 361 F. Supp. 3d at 143 (emphasis added) (internal citations omitted). In other words, the Cohne policy was unambiguously clear that in the event of a perceived conflict between the two provisions on this point, the assault and battery exclusion would control.

Moreover, the policy in Cohne was analyzed under Massachusetts law and First Circuit Court of Appeal precedent which dictate that:

the policy and the endorsement or rider shall be construed together; and that where the provisions in the body of the policy and those in the endorsement or rider are in irreconcilable conflict the provisions contained in the endorsement or rider will prevail over those contained in the body of the policy.

Id. at 143 (emphasis added) (quoting National Union Fire Ins. Co. v. Lumbermens Mut. Cas. Co., 385 F.3d 47, 55 (1st Cir. 2004)). In contrast, Florida law mandates that “courts look at the insurance policy as a whole and give every provision its full meaning and operative effect.” State Farm Fire & Cas. Co., 393 F.3d at 1230. Accordingly, the Cohne decision provides, if anything, a comparative example of potentially conflicting policy provisions phrased clearly and unambiguously by the insurer due to the clarifying language contained in the assault and battery exclusion. Covington neglected to provide such clarity in its Policy.

Similarly, in Bursey v. 497 Communipaw Ave. Corp. et al, 2011 WL 5041325 *1 (N.J. Super. Ct. App. Div. 2011), cited by Covington, the policy at issue included language that unambiguously stated that the assault and battery provision would limit the application of the reasonable force exception. The Bursey assault and battery exclusion excluded from coverage:

“Any claim, demand or suit based on “assault” or “battery”, or out of any act or omission in connection with the prevention or suppression of any “assault” or “battery”, including the use of reasonable force to protect persons or property, whether caused by or at the instigation or direction of an insured, its “employees”, agents, officers or directors, patrons or any other person.”

Bursey, 2011 WL 5041325 *12 (emphasis in original). This clarifying language in the Bursey policy distinguishes itself from the language contained in the Policy at issue. Such clarifying language is absent from the Covington Policy, and thus, the Policy fails to unambiguously dictate which provision controls in the event of a conflict. Therefore, neither Bursey nor Cohne supports Covington’s position because the policy provisions in those cases are clear and unambiguous — unlike the provisions at issue here.

By comparison, Capitol Specialty Ins. Corp. v. Beach Eatery & Surf Bar, LLC, 36 F. Supp. 3d 1026, 1033 (E.D. Wash. 2014), dealt with a similar insurance dispute involving competing provisions with no clear language as to which was to prevail and, after finding an ambiguity, ruled in favor of coverage. The court reasoned: “while the complaint does not allege that Defendants used reasonable force in the altercation with Cates, an allegation that would clearly trigger the duty to defend, it must be remembered that the Court must liberally interpret the complaint when analyzing whether there is a contractual duty to defend.” Id. at 1034. The Court finds this case more analogous to the facts of the instant action.

Moreover, the Assault and Battery Exclusion in the Covington Policy includes a directive at the end that “no coverage or duty to defend is provided if the underlying operative facts constitute an ‘assault’ and/or ‘battery’ irrespective of whether the claim alleges failure to provide adequate security in any way.” (Dkt. 1-1 at 51-52) If Covington intended for the Assault and Battery Exclusion to eviscerate the Reasonable Force Exception, it could just as easily have included additional clarifying language — i.e., “no coverage or duty to defend is provided if the underlying operative facts constitute an ‘assault’ and/or ‘battery’ irrespective of whether the claim alleges reasonable force to protect persons or property.” Such language would have unambiguously clarified which provision would control. In the absence of such language and, as directed by Florida law, this Court affords every provision “its full meaning and operative effect.” State Farm Fire & Cas. Co., 393 F.3d at 1230. As such, the Court finds that the Policy excludes coverage for all claims arising from assault and/or battery with the exception of claims involving “reasonable force to protect persons or property.” (Dkt. 1-1 at 31)

Lastly, Covington contends that “[t]he law in Florida is clear to the extent that an endorsement is inconsistent with the body of the policy, the endorsement controls,” citing several Florida District Court of Appeals cases. (Dkt. 34 at 6 (quoting Allstate Fire and Cas. Ins. Co. v. Hradecky, 208 So. 3d 184, 187 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D2413a] (finding the endorsement controls where it “modifies and amends the insurance contract with respect to forum selection”))); see also Family Care Ctr., P.A. v. Truck Ins. Exch., 875 So. 2d 750, 752 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1454a] (resolving conflict between policy provision and endorsement as to the named insured); see also Fireman’s Fund Ins. Co. v. Levine & Partners, P.A., 848 So. 2d 1186, 1187 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1319a]; Steuart Petroleum Co., Inc. v. Certain Underwriters at Lloyd’s London, 696 So. 2d 376, 379 (Fla. 1st DCA 1997) [28 Fla. L. Weekly D1319a]. However, Covington’s argument is misplaced. In each of the cases cited above, the policy at issue involved a clear and contradictory endorsement that purported to expressly control over a policy provision that provided for coverage, which is distinguishable from the endorsement at issue in this action.

By way of example, in Allstate Fire and Cas. Ins. Co. v. Hradecky, the conflicting provision at issue addressed a forum selection clause within the policy and a conflicting forum clause within the endorsement, which was irreconcilable. 208 So. 3d at 186. Covington also cites Steuart Petroleum Co., Inc. for the proposition that “to the extent an endorsement is inconsistent with the body of the policy, the endorsement controls.” 696 So. 2d at 379. Steuart, likewise, is distinguishable. In Steuart, the court was presented with two provisions that provided coverage — one in the policy and the other in an endorsement. Id. at 378-79. The court found that to the extent the provisions conflict, “the clause affording greater coverage will prevail.” Id. at 379. In contrast to Steuart, only one of the provisions at issue here — the Reasonable Force Exception — would provide coverage as it specifically addresses “protection of persons or property” or “reasonable force.” (Compare Dkt. 1-1 at 31 with Dkt. 1-1 at 51-52) Additionally, the terms of the Reasonable Force Exception do not address any coverage limitations set by the Assault & Battery Exclusion.

Moreover, the Steuart court’s suggestion that an endorsement controls is not clearly established Florida law, as it was not based on Florida case precedent, but instead, on guidance from the Appleman on Insurance Law and Practice treatise cited therein. Steuart Petroleum Co., Inc., 696 So. 2d at 379 (citing 13 Appleman on Insurance Law & Practice Archive §§ 7537-38 (2nd 2011)). In the sentence immediately preceding the one quoted by Steuart, Appleman reiterates the time-honored principle that a court must, where it can, construe the policy to “give effect to all provisions” and that the “the policy and endorsement should be construed together unless they are so much in conflict that they cannot be reconciled.” Appleman, § 7537 at nn. 4, 10. (emphasis added) Notably, the two cases Appleman relies on for the proposition that the endorsement controls are either factually distinguishable or based on law that is contradictory to the unbroken line of Florida caselaw that mandates that, where possible, “courts look at the insurance policy as a whole and give every provision its full meaning and operative effect.” Id. at § 7538, n.8; State Farm Fire & Cas. Co., 393 F.3d at 1230. In any event, Aetna Ins. Co. v. Houston Oil & Transp. Co. is a ninety-year-old maritime decision, expressly decided under maritime law and not the law of any state. 49 F.2d 121, 122 (5th Cir. 1931) (“Policies of marine insurance are governed by the general admiralty law. In construing them we prefer to follow the decisions of the federal courts and other admiralty courts and to put aside decisions of state courts where they are in conflict.”). Even so, the language cherry-picked from the decision to suggest that an endorsement always controls over a policy’s terms is taken out of context. In fact, the case involved a conflicting maritime vessel policy that required the insured ship to have a watchman, but the endorsement that provided fire coverage failed to include the watchman requirement. Aetna Ins. Co., 49 F.2d at 122-23. Reversing the district court decision finding that the endorsement had excluded the watchman requirement, the Fifth Circuit followed the time-honored principle, which is also followed under Florida law, that courts give meaning to all provisions of an insurance contract where they can be read together.

Secondly, in B. L. Ivey Constr. Co. v. Pilot Fire & Cas. Co., 295 F. Supp. 840, 842 (N.D. Ga. 1968), the court expressly relied on Georgia law and based its decision on the fact that the endorsement in that action occurred later in time than the main policy, and therefore, expressed the parties’ later intent. Accordingly, the Appleman treatise is not persuasive or controlling, particularly here, where the endorsement is bound up as part of the policy and was not attached at a later time.

Consequently, the cases provided by Covington were cited out of context and out of regard for facts of the cases cited therein. Where, as here, the endorsement does not expressly contradict the conflicting provision, but leaves open the policy coverage for reasonable force, either intentionally or for lack of clarity of the language, the coverage is construed in favor of the insured.

Even the most favorable reading (from the perspective of Covington) of the Assault & Battery Exclusion does not allow it to control because it does not address the terms of the Reasonable Force Exception, as it in no way speaks to the use of “reasonable force” or the “protection of persons any property.” (Compare Dkt. 1-1 at 31 with Dkt. 1-1 at 51-52) Therefore, the endorsement appears to be written to exclude coverage for force that is unreasonable, as described therein. (See Dkt. 1-1 at 51-52) Whether Covington intended to keep the Reasonable Force Exception in place, or just failed to expressly preclude reasonable force, the exception was not expressly precluded by the endorsement or anywhere else in the Policy. Under Florida law, when an insurance company intends to preclude or limit coverage, it is incumbent on the insurance company to “include clear language to accomplish this result.” U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 884 (Fla. 2007) [32 Fla. L. Weekly S811a]. Thus, the Policy must be read as a whole, and any ambiguities must be construed against the drafter of the policy.

As a result, the Reasonable Force Exception and the Assault and Battery Exclusion, when read together, are facially unclear and are ambiguous as to when Baraki’s use of “reasonable force to protect persons or property” would be covered. Consequently, coverage in such a circumstance is patently ambiguous, and coverage must, therefore, be construed in favor of the insured, Baraki.

Having determined the meaning of the “four corners of the contract,” the eight corners analysis, for purposes of determining Covington’s duty to defend, becomes simpler. Covington must demonstrate that a comparison of the four corners of the complaint in the Underlying Action with the four corners of the Policy reveals no scenario in which coverage would be provided under the Policy, thereby eliminating the insurer’s duty to defend. This it cannot do.

Regardless of whether they are true, the factual allegations in the Underlying Action “fairly and potentially” implicate the surviving Reasonable Force Exception, which provides coverage for Baraki in reasonably “protect[ing] persons or property” and triggers Covington’s duty to defend. Stephens, 749 F.3d at 1323; (Dkt. 1-1 at 31). In the Underlying Action, Grabowski alleges as follows:

9. Plaintiff Grabowski and Defendant Rafraf had a verbal altercation and disagreement when Plaintiff Grabowski sought entry to the Bar.

10. Defendant Rafraf forcefully blocked Plaintiff Grabowski from entering the Bar.

11. Defendant Rafraf subsequently and forcefully struck Plaintiff Grabowski.

12. Plaintiff Grabowski, as a result of being struck by Defendant Rafraf, fell, hitting his head.

(Dkt. 1-1 at ¶¶ 9-12) Grabowski also contends, inter alia, that “Defendants exercised poor judgment in using excessive force in their attempt to re[s]train [Grabowski] and deny his access to the Bar.” (Id. at ¶ 21) Although Grabowski alleges that he was “forcefully struck” to prevent him from entering the bar, which he admittedly was trying to do, the level of physicality alleged on the face of the complaint is not inherently excessive or unreasonable. Moreover, while Grabowski’s legal theory alleges that the force was “excessive,” Florida law dictates that courts look not only to labels appended to the claims, but to the facts alleged. See Stephens, 749 F.3d at 1323. If, as alleged, Rafraf was attempting to block Grabowski from entering into the establishment and, in the ensuing contact, Grabowski was injured when he fell and struck his head, these facts could “fairly and potentially” fall within the Reasonable Force Exception of the Policy, which preserves coverage for “ ‘bodily injury’ resulting from the use of reasonable force to protect persons or property.” (Dkt. 1-1 at 31) (emphasis added).

Accordingly, Plaintiff’s Motion for Summary Judgment, as it pertains to Covington’s duty to defend, is GRANTED.

3. DUTY TO INDEMNIFY

The Parties also seek a declaration from this Court as to whether Covington has a duty to indemnify Baraki for any monetary damages paid in connection with the injuries allegedly suffered by Grabowski on or around March 9, 2018. (Dkt. 2)

As noted earlier, an insurer’s duty to indemnify “must be determined by analyzing the policy coverage in light of the actual facts in the underlying case.” Zurich, 314 F. Supp. 3d at 1299 (quoting J.B.D. Constr., Inc., 571 F. App’x at 927). Indeed, “the duty to indemnify is not ripe for adjudication in a declaratory judgment action until there is a factual determination that the [insured] is liable in the underlying suit.” Boardwalk Condo. Assoc., Inc., 2010 WL 1911159, at *7. Here, Grabowski voluntarily dismissed two of the four counts asserted in the Underlying Action on April 25, 2019. See Grabowski at Docket No. 17. On April 30, 2019, Final Judgment was entered on the remaining counts in favor of Grabowski against Defendants, Baraki, Inc. and Hussein Mahmoud Rafraf for the total gross sum of $285,000.00. Id. at Docket No. 23. Thus, Covington’s duty to indemnify Baraki is ripe for adjudication.

Baraki asserts that Covington has a duty to indemnify it in the Underlying Action pursuant to the Reasonable Force Exception. (Dkt. 2) In support of its contention, Baraki submits the affidavit of Hussein Mahmoud Rafraf, in which Defendant Rafraf declares that “the amount of force [he] used in removing Grabowski from the premises was reasonable under the circumstances and was intended to protect persons and property from harm.” (Dkt. 28-3 at ¶ 11)

Covington counters that it has no duty to indemnify Baraki for the claims asserted in the Underlying Action because “[such claims fall] squarely within the Assault and Battery Exclusion.” (Dkt. 29 at 4) Further, Covington contends that the Reasonable Force Exception does not apply to or otherwise limit the Assault and Battery Exclusion, which “operates independently to preclude coverage for all claims based on alleged assaults or batteries, including those claims alleged in the Underlying Action.” (Id. at 14)

Based on the actual facts of the case, the Court finds that Covington has a duty to indemnify Baraki in connection with the Underlying Action. The Court emphasizes that under Florida law, courts “must not construe insurance policy provisions in isolation,” as Covington suggests, but instead, should “look at the insurance policy as a whole and give every provision its full meaning and operative effect.” State Farm Fire & Cas. Co., 393 F.3d at 1230. Further, “policy provisions excluding or limiting the insurer’s liability,” such as the Assault and Battery Exclusion, “are construed more strictly than coverage provisions,” and consequently, “must be construed in favor of the insured if they are ambiguous or reasonably susceptible to more than one meaning.” Gen. Star Indem. Co., 874 So. 2d at 30 (internal citations omitted).

The Court has already established that the Policy is patently ambiguous; and therefore, giving every provision “its full meaning and operative effect,” the Court finds that the Policy must be read to exclude coverage for all claims arising from assault and/or battery with the exception of claims involving “reasonable force to protect persons or property.” State Farm Fire & Cas. Co., 393 F.3d at 1230; (Dkt. 1-1 at 31). Accordingly, Covington owes Baraki a duty to indemnify it in connection with the Underlying Action.

Lastly, although Covington filed a Response which included a cross-Motion for summary judgment, (Dkt. 29), and a Reply, (Dkt. 34), it did not offer any contradictory facts to create a material dispute of fact as to whether the force was reasonable. Significantly, nowhere in Covington’s various pleadings does it refute Baraki’s contention that the force used by Defendant Rafraf was indeed “reasonable,” as avowed in his sworn affidavit. (Dkt. 28-3 at ¶ 11); see also Da Costa, 226 So. 2d at 105 (“If the facts are not in dispute and the ambiguity is ‘patent,’ i.e. it appears on the face of the contract, the court may resolve the ambiguity as a matter of law by liberally interpreting the language in favor of coverage.”). Given every opportunity to present facts to the contrary, Covington has not offered anything to dispute Baraki’s contention that the force exerted by Rafraf was reasonable. Accordingly, Plaintiff’s Motion for Summary Judgment, as it pertains to Covington’s duty to indemnify, is also GRANTED.

IV. CONCLUSION

Upon consideration of the foregoing, it is hereby ORDERED as follows:

1. Plaintiff Baraki, Inc.’s Motion for Summary Judgment on the Issue of Coverage, (Dkt. 28), is GRANTED.

2. Defendant Covington Specialty Insurance Company’s Cross-Motion for Final Summary Judgment, (Dkt. 29), is DENIED.

3. The Clerk is DIRECTED to enter judgment in favor of Plaintiff Baraki, Inc. and against Defendant Covington Specialty Insurance Company. The judgment shall state: “The Court expressly finds that Defendant is required to provide indemnification coverage to Plaintiff for the cost of defense and any portion of the judgment or settlement paid in Grabowski v. Baraki, Inc. f/k/a, Opa Greek Café, Inc. and Hussein Mahmoud Rafraf, Case No. 18-007889-CI-7 (Fla. 6th Cir. Ct. 2018).”

4. The Court has resolved all adjudicative issues in this action. Therefore, the Clerk is DIRECTED to terminate any pending motions and CLOSE this Case.

5. Further, the Court DIRECTS that the stay imposed by this Court on March 19, 2020, (Dkt. 44), does not affect any deadlines imposed by the Eleventh Circuit to take a final appeal.

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¹The Court notes that “[a]lthough an unpublished opinion is not binding on this court, it is persuasive authority. See 11th Cir. R. 36-2.” United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000).* * *