Catlin Specialty Insurance v. Cohen

883 F. Supp. 2d 1182, 2012 WL 3271806
CourtDistrict Court, M.D. Florida
DecidedAugust 13, 2012
DocketNo. 2:10-cv-607-UA-SPC
StatusPublished
Cited by1 cases

This text of 883 F. Supp. 2d 1182 (Catlin Specialty Insurance v. Cohen) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Catlin Specialty Insurance v. Cohen, 883 F. Supp. 2d 1182, 2012 WL 3271806 (M.D. Fla. 2012).

Opinion

AMENDED ORDER

STEVEN D. MERRYDAY, District Judge.

An insurer sues in the district court for a declaration that no obligation to defend or to indemnify an insured property owner results from a state court, wrongful death action against an insured on whose commercial premises the deceased fell to his death. The deceased visited the insured’s premises because of a contract between the insured and Alko Systems for the installation of security cameras. The deceased conducted his security camera business through Alko Systems, his corporation.

The insured’s general liability policy from the insurer excludes from coverage an injury to an independent contractor. The insured claims that because the deceased had failed to provide the agreed proof of insurance and, therefore, allegedly had failed to satisfy a condition precedent to the contract and because the deceased otherwise lacked permission to ascend to the roof, the deceased was an unauthorized trespasser and not yet an independent contractor (a business invitee). Also, the insured claims that the deceased was not an independent contractor because, before the contract between the insured and the deceased, the State of Florida had dissolved Alko Systems.

But the deceased had submitted a written offer for the work on the insured’s premises, and the insured had accepted the offer and issued a check to the deceased for the first of two payments for the work. A contract existed. The agreed proof of insurance was not yet delinquent; a breach of the contract neither existed nor was even claimed. The contract between the insured and Alko Systems unmistakably creates the business relation of an owner and an independent contractor.

Although the corporation was administratively dissolved, the insured is estopped to deny the existence of the corporation with which the insured contracted. Even if the corporateness of the deceased’s entity is denied, the effect is merely to substitute a sole proprietor for the corporation as the independent contractor without effect on the exclusion from coverage. In short, the insured tries to wriggle away from the consequence of the contract with the deceased — but to no avail; the insurer is entitled to a summary judgment.

THE STATE COURT COMPLAINTS

The successive state court complaints (from the original complaint through the fourth amended complaint) by Orit Cohen, the personal representative and widow of David Cohen, allege that David Cohen as a “business invitee ... went on the roof of the [defendant’s] property to take measurements for the installation of a CCTV video system” and, because Venetian Investments “negligently maintained the roof and parapet walls by not having the parapet walls located at the edge of the roof at a safe height,” Cohen “fell on the property and died.” The fourth amended complaint alleges a claim in Count I for negligence against Venetian Investments, LLC, as owner of the property; a claim in Count II for negligence against Hawks Landing of Punta Gorda, LLC, as owner of the property; a claim in Count III for negligence against Leon Agamí, as the “principal” and [1184]*1184manager of Venetian Investments, LLC; a claim in Count IV for negligence against Oscar Bullard General Contractors, LLC, as the general contractor hired “to perform construction to the roof and/or parapet walls on the roof’ of the premises; and a claim in Count V for negligence against Oscar Bullard, also allegedly hired to “perform construction to the roof and/or parapet walls on the roof.”

THE COMPLAINTS IN DISTRICT COURT

Catlin Specialty Insurance Company’s fourth amended complaint in the district court (another “fourth amended complaint” but not the same complaint as Orit Cohen’s “fourth amended complaint” in state court) alleges that Catlin issued “commercial general liability coverage” to Venetian Investments, LLC (but the policy clumsily describes the insured as “Venetian Investment, LLC, dba Marco Walk Hawks Landing of Punta Gorda, LLC”), which owns the pertinent premises, the Marco Walk shopping center at Marco Island, Florida. The insurance policy’s coverage excludes “bodily injury” to:

An “employee”, “temporary worker”, “volunteer workers”, independent contractor or subcontractor of any insured or employee of any independent contractor or subcontractor arising out of and in the course of:
(a) Employment by any insured; or
(b) Performing duties related to the conduct of any insured’s business; or
(c) Arising out of the injured party’s employment....

Catlin’s complaint in the district court denies any obligation to any defendant to defend the state court wrongful death action or to indemnify any loss, alleges that Catlin has assumed the defense in state court only under a reservation of rights, and alleges that the words “independent contractor or subcontractor of any insured or employee of any independent contractor or subcontractor” exclude the claim asserted in state court because, among other reasons, Cohen was an excluded “independent contractor.” Catlin’s complaint seeks a declaratory judgment relieving Catlin from any demand by a defendant for either defense or indemnity, that is, Catlin seeks a declaration that the policy excludes coverage for Cohen’s accidental death.

THE MOTION FOR SUMMARY JUDGMENT

With admirable clarity, Catlin’s motion for summary judgment states that the “basis for this motion is that the Catlin policy’s independent-contractor exclusion eliminates coverage for the allegations of Mrs. Cohen’s complaint because Mr. Cohen was an independent contractor performing work for the insured ... when he died.” With similar clarity, Venetian Investments and Leon Agami agree that “[t]he issue in this case is whether ... the decedent ... was on the property as an independent contractor sufficient to trigger the independent contractor exclusion of the policy.”

DISCUSSION

The pertinent complaint alleges, as stated earlier, that in this fatal project Cohen entered the Marco Walk premises “as a business invitee” in connection with the installation of video cameras, for which Cohen, acting through Alko Systems, had contracted with Venetian Investments, through his acquaintance Agami. Florida law initially directs an examination of the “four corners” of the most recent complaint to determine from the allegations whether the pertinent policy entitles an insured to defense and indemnity. In this instance, acting prudently, the insurer examined the complaint and determined that [1185]*1185no coverage exists but, nonetheless, assumed defense under a reservation of rights and seeks relief by declaratory judgment in the district court.1

The record demonstrates that Cohen operated “Alko Systems,” a small (essentially a one-man), incorporated business that installed security cameras. Cohen and Agami met in the course of their respective business activity in Miami-Dade County, Florida. During casual conversation, Cohen asked Agami about prospective security camera installation business, and Agami mentioned the Marco Walk shopping center in Marco Island, Florida. Marco Walk was owned by Venetian Investments and actively and exclusively managed by Agami.

In due course, Cohen submitted to Agami a written proposal to install security cameras at the Marco Island project. Agami initially rejected the proposal because of the price.

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Cite This Page — Counsel Stack

Bluebook (online)
883 F. Supp. 2d 1182, 2012 WL 3271806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/catlin-specialty-insurance-v-cohen-flmd-2012.