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Books/Procedure/ANNETTE DAVIS Case.txt

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+NITED STATES DISTRICT COURT
+SOUTHERN DISTRICT OF FLORIDA
+CASE NO. 21-61958-SINGHAL/VALLE
+ANNETTE DAVIS,
+Plaintiff,
+v.
+GREAT NORTHERN INSURANCE
+COMPANY and FEDERAL INSURANCE
+COMPANY,
+Defendant.
+___________________________________/
+OPINION AND ORDER
+THIS CAUSE is before the Court upon Plaintiff<66>s Motion for Judgment on the
+Pleadings on Count I of the Amended Complaint based upon Defendant<6E>s Breach of
+Contract, filed on January 27, 2022 (the <20>Motion<6F>) (DE [32]). Defendant (<28>Defendant<6E> or
+<EFBFBD>Chubb<EFBFBD>) filed a Response on March 1, 2022 (the <20>Response<73>) (DE [46]). Plaintiff filed a
+Reply on March 8, 2022 (the <20>Reply<6C>) (DE [51]). An In-Person Hearing on the Motion was
+held on March 15, 2022. The Motion is now ripe for consideration.
+I. BACKGROUND
+This action involves an insurance coverage dispute related to injuries Plaintiff
+allegedly suffered from exposure to toxic mold in her home. Plaintiff owned and resided
+in The Tides at Bridgeside Square Condominium (the <20>Tides<65>). See Am. Compl. <20> 4 (DE
+[23]). Plaintiff sued Akam On-Site, Inc. (<28>Akam<61>), the property manager of Tides, and
+several other entities alleging negligent property management services in connection with
+annual maintenance work on a water-cooling tower at the Tides (DE [25], at 10). The
+botched maintenance work is alleged to have allowed water to infiltrate the condominium,
+causing a rampant mold infestation. Id. Under Akam<61>s property management contract,
+Case 0:21-cv-61958-AHS Document 60 Entered on FLSD Docket 03/16/2022 Page 1 of 5
+2
+Tides designated Akam as a <20>named insured<65> under its liability policies (DE [1-8], at 267).
+At issue are two separate liability policies of Tides. The first policy, by AmTrust
+International Underwriters (<28>AmTrust<73>), insured Tides under a primary commercial
+general liability policy (DE [46]), at 2. The AmTrust Policy contains an <20>Organic Pathogen
+Exclusion,<2C> which excludes bodily injury, <20>which would not have occurred . . . but for . . .
+exposure to . . . any . . . <20>[o]rganic pathogen,<2C><> which includes <20>any type of mold . . . .<2E> See
+Am. Compl. <20> 34.
+The second policy, by Great Northern Insurance Company (<28>Great Northern<72>) and
+Federal Insurance Company (<28>Federal) (together the <20>Chubb Insurers<72> and <20>Chubb
+Policies<EFBFBD>), insured Tides under primary insurance policies issued by Great Northern and
+excess and umbrella policies issued by Federal. See Am. Compl. <20><> 1, 35 (DE [23]).
+Based on the AmTrust and Chubb policies<65> respective <20>other insurance<63> provisions, the
+Chubb policies were afforded excess priority to the primary AmTrust policies (DE [25], at
+8). Chubb advised Akam of the priority of coverages and agreed to handle the matter
+under a reservation of rights. Id. at 7. Akam did not dispute this reservation for nearly two
+years. Id. at 9.
+Plaintiff filed a negligence lawsuit against Akam and other defendants in state court
+(<28>the Underlying Lawsuit<69>) (DE [32], at 2). On December 10, 2020, as trial was
+approaching, Chubb advised Akam it was electing its right to associate in skilled trial
+counsel to help defend Akam (DE [25], at 11). However, Akam objected to Chubb<62>s
+attempt to associate counsel. Id. Plaintiff, Akam, and Tides subsequently entered into a
+settlement of the Underlying Lawsuit (the <20>Coblentz Agreement<6E>) (DE [48-2]). The
+Coblentz Agreement included a payment in the sum of $250,000 to be made to Plaintiff,
+which included $100,000 to be paid directly from Akam and $150,000 to be paid by
+Case 0:21-cv-61958-AHS Document 60 Entered on FLSD Docket 03/16/2022 Page 2 of 5
+3
+AmTrust on Akam<61>s behalf. Id. at 7. Curiously, AmTrust was not a party to the Coblentz
+Agreement. Id. at 1. Second, the Coblentz Agreement assigned to Plaintiff all of Akam<61>s
+claims against the Chubb Insurers arising out of their alleged denial of coverage for, and
+alleged refusal to defend Akam against, Plaintiff<66>s negligence claims in the Underlying
+Lawsuit. Id. at 7. Third, the Coblentz Agreement included a consent judgment in favor of
+Plaintiff for $14.5 million and specified that <20>Davis<69> right to seek satisfaction of the Consent
+Judgment [was] solely against [the Chubb Insurers] and the [Chubb Policies].<2E> Id. at 8.
+Plaintiff now moves for Judgment on the Pleadings on Count I of the Amended Complaint.
+II. LEGAL STANDARD
+Pursuant to Federal Rule of Civil Procedure 12(c), after the pleadings are closed,
+a party may move for judgment on the pleadings if no material facts remain at issue and
+the parties<65> dispute can be resolved on the pleadings and those facts of which the court
+can take judicial notice. See Fed. R. Civ. P. 12(c); Hawthorne v. Mac Adjustment, Inc.,
+140 F.3d 1367, 1370 (11th Cir. 1998). <20>In determining whether a party is entitled to
+judgment on the pleadings, we accept as true all material facts alleged in the non-moving
+party's pleading, and we view those facts in the light most favorable to the non-moving
+party.<2E> Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014). <20>If a comparison
+of the averments in the competing pleadings reveals a material dispute of fact, judgment
+on the pleadings must be denied.<2E> Id.
+III. DISCUSSION
+Plaintiff focuses her argument on whether the AmTrust primary policy provided
+coverage for her claim, and specifically, whether the Organic Pathogen exclusion applied.
+See Motion, at 9<>11. According to Plaintiff, the Organic Pathogen exclusion did apply and
+thereby released AmTrust from its duty to defend and indemnify Akam. Id. This, in turn,
+Case 0:21-cv-61958-AHS Document 60 Entered on FLSD Docket 03/16/2022 Page 3 of 5
+4
+activated the Chubb Policies, requiring that the Chubb Insurers provide a defense and
+indemnity to Akam Id. However, the Chubb Insurers allege in their answer, affirmative
+defenses, and counterclaim, that AmTrust did in fact defend and indemnify Akam. See
+(DE [25], at 1<>9). Six of Chubb<62>s denials specifically relate to Plaintiff<66>s allegations
+regarding coverage under the AmTrust policy and whether the Organic Pathogen
+exclusion applied. See (DE [25] <20><> 32<33>34, 37, 41, 44). Moreover, Chubb alleges several
+affirmative defenses providing factual information concerning AmTrust<73>s primary
+coverage. See (DE [25], at 7<>8). Specifically, Chubb alleges it had no duty to defend and
+indemnify Akam because the AmTrust policies are primary to the Chubb Policies, and
+AmTrust was in fact fully defending and indemnifying Akam. See Response, at 7.
+Moreover, Chubb alleges that it, at no time, denied its duty to defend or the possibility of
+coverage. Id. Chubb further states it handled the Underlying Lawsuit under a complete
+reservation of rights, which was accepted by Akam. Id.
+In considering the Motion, the Court must not only accept the nonmovant Chubb<62>s
+allegations as true but must also view those allegations in the light most favorable to
+Chubb. See Perez, 774 F.3d at 1335. And if a comparison in the pleadings reveals a
+material dispute of fact, judgment must be denied. Id. Here, the pleadings directly butt
+heads on whether AmTrust did in fact defend Akam. Plaintiff argues that, even though
+AmTrust contributed funds to Plaintiff on Akam<61>s behalf in connection with settling the
+Underlying Action, as indicated in the Coblentz Agreement, this did not constitute a
+defense of Akam, but rather a voluntary payment to settle the matter. In Plaintiff<66>s view,
+AmTrust<EFBFBD>s policy did not provide coverage because of the Organic Pathogen exclusion.
+Defendant argues the fact that AmTrust contributed funds to Plaintiff on Akam<61>s behalf in
+connection with settling the Underlying Action, as indicated in the Coblentz Agreement,
+Case 0:21-cv-61958-AHS Document 60 Entered on FLSD Docket 03/16/2022 Page 4 of 5
+5
+necessarily means that AmTrust did in fact defend Akam and impliedly waive the Organic
+Pathogen exclusion. Defendant further alleges that AmTrust fully defended Akam and
+assumed the primary responsibility for the Underlying Action. See (DE [48-1], at 9<>10).
+Viewed in the light most favorable to Chubb, and accepting all of Chubb<62>s allegations as
+true, the Court finds AmTrust defended Akam by contributing funds to Plaintiff on Akam<61>s
+behalf in connection with settling the Underlying Action, as indicated in the Coblentz
+Agreement. And in doing so, AmTrust necessarily waived the Organic Pathogen
+exclusion. Accordingly, it is hereby
+ORDERED AND ADJUDGED that Plaintiff<66>s Motion for Judgment on the Pleadings
+on Count I of the Amended Complaint based upon Defendant<6E>s Breach of Contract (DE
+[32]) is DENIED.
+DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 16th day of
+March 2022