[PUBLISH]
IN THE U NITED STATES COU RT O F APPEALS
FOR TH E ELEVE NTH C IRCU IT _____________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 02-12829 APRIL 4, 2003 _____________________________ THOMAS K. KAHN CLERK D. C. Docket No. 01-00054 CV-1-MM P
TRAVELERS INDEMNITY COMPANY,
Plaintiff-Counter- Defenda nt-Appellant,
versus
PCR INCORPORATED,
Defendant-C ounter- Claimant-Appellee,
DEBRA TURNER, As Personal Representative of the Estate of Thomas Paul Turner III, JAMES CR EIG HTO N, et al.
Defendants.
_________________________________________
Appeal from the United Sta tes District Court for the Northern District of Florida _________________________________________ (April 4, 2003) Before EDMONDSON, Chief Judge, KRAVITCH and GIBSON*, Circuit Judges.
PER CURIAM:
This case involves a determination by the district court that an insurance
company is o bligated to pro vide covera ge to an insured becaus e an ambiguous
exclusionary clause must be read to require specific intent by the insured to invoke
the intentional-tort exclusion from liability covera ge. The Florida Supreme C ourt,
after considering these same facts in the context of the Florida workers’
compensation statute, concluded that intentional torts included acts which involved
substantial certainty that death or injury would befall an employee. Before we
decide if Travelers Indemnity Company must provide liability coverage to PCR
Incorpora ted, w e need to ask the Florida Supreme C ourt for some a dvice abo ut
Florida law.
* Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by designation.
2 BACKGROUND
In 1991, an explosion a t the PCR chemical plant killed Pa ul Turner and
seriously injured Ja mes Cre ighton, chemical tec hnicians for PCR . Two experts
opined that the chemicals used to develop a rep lacement coolant for freon were
“highly reactive” and “prone to spontaneous and violent decomposition when heated
or compressed.” The explosion seemingly occurred when the chemicals were mixed
in containers that w ere ill-suited for the chemica l reaction. O ne expert s tated that a
“substantial ce rtainty” e xiste d tha t placing la rge q uantities of the se volatile
substances in a rudimentary propane tank rather than in a suitably equipped reactor
would result in an explosion. Turner v. PCR, Inc., 754 So. 2d 683, 6 85 (Fla. 2000).
Creighton and Turner’s wife brought suit in a Florida court for the damages
they suffered. PC R invoke d immunity fro m suit on the gro unds that the o nly
recourse for damages available to Creighton and Turner was through workers’
compensation. PCR claimed its behavior constituted no intentio nal to rt tha t wo uld
permit Creighton and Turner to bring suit against it outside of workers’
compens ation.
The Florid a Supreme C ourt eventually determined that a subjective , sp ecific
intent was not required to overcome tort immunity under the workers’ compensation
statute. After considering the facts of this case , the Florida Supreme Co urt
3 concluded that a substantial certainty of death or injury adequately supported an
intentional tort to overc ome employe r immunity from suit.
[The] intentional tort exc eption includes a n objective s tandard to measure whether the employer engaged in conduct which was substantially certa in to result in injury. This standa rd imputes intent upon emp loyers in c ircumstances where injury or death is objective ly “substantially certa in” to occ ur. T o hold otherw ise w ould virtua lly encourage a p ractice of “w illful blindness” on the part of employers who could ignore conditions that under an objective test would be found to be dangerous, and later claim lack of subjective knowledge or intent to harm an employee.
Turner, 754 So. 2d at 691 . The Florida Supreme C ourt concluded that there w ere
issues of fact about whether PCR engaged in conduct substantially certain to cause
injury or death and remanded the case to the trial court.
Before the explosion, Travelers had issued an insurance policy to PCR.
Travelers b rought an action for d eclaratory jud gment in the district court to
determine the coverage scop e of the ins urance p olicy. Travelers contend ed that it
bore no responsibility in defending or indemnifying PCR against the suit brought by
Creighton and Turner because the policy covered no intentional torts. Part One of
the p olicy provides workers’ co mpensation c overage . That coverage exte nds only
to injuries to employees that result from accident or disease. Part Two of the policy
provides e mployers’ liability insurance. The terms o f the policy require Tra velers to
pay all sums PCR “legally must pay as damages because of bodily injury to [PCR’s]
4 employees , provided the bodily injury is covere d by this Employe rs Liability
Insuranc e.” But the liability c overage is limite d to acc idental injury: “ This
employers liability insurance a pplies to bo dily injury by accident . . . .” Co verage
for accid enta l injury is subject to exclusions, includ ing “bod ily injury intentionally
caused or aggravate d by [PC R].” T ravelers is req uired by the po licy to defend
against any suit brought for damages payable under the terms of the policy (such as
damages for acc idental, unintentional injuries).
The district co urt determined tha t the insurance law of Florida required a ny
ambiguity in an insurance contract to be resolved in favor of the insured. Because
earlier Florida caselaw allowe d an insurance carrier to avo id coverage only where
an intentional tort was supported by a spec ific intent to cause harm, the d istrict court
concluded there e xisted, at least, some ambiguity in the clause “b odily injury
intentionally caused or aggravated” by PCR. The district court granted the motion
for judgment on the pleadings by PCR.
5 DISCUSSION
In the earlier cas e before the Florida Supreme Court, P CR c laimed it owed no
liability to Turner and Cre ighton becaus e “w orkers’ compens ation is the exclusive
remedy for ‘accidental injury or death arising out of work performed in the course
and scope of employment.’” Turner, 754 So. 2d at 68 6 (quoting Fla. Stat. §
440.0 9(1) (199 7)). The Florida Supreme C ourt, how ever, “ reaffirmed” in the
Turner decision that “workers’ compensation law does not protect an employer
from liability for an intentional tort against an employee.” Id. at 687. The high court
also stressed that, in the workers’ compensation context, two alternative bases exist
for an employee to demons trate an intentional tort s ufficient to avoid tort immunity:
the employer must have either “exhibit[ed] a deliberate intent to injure or engage[d]
in conduct which is substantially certain to result in injury or death.” Id. (internal
quote mark s and citation o mitted)(emphas is in original). The seco nd part of the
disjunctive te st is view ed o bjective ly and “imp utes intent upo n emp loyers in
circumstances where injury or death is objectively ‘substantially certain’ to occur.”
Id. at 691.
Travelers claims that the insurance policy with PCR specifically excluded
“bod ily injury intentionally caused or aggrava ted by you. ” Base d on this exclusion,
Travelers d enies a duty o n their part to de fend or to indemnify PC R against the suits
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[PUBLISH]
IN THE U NITED STATES COU RT O F APPEALS
FOR TH E ELEVE NTH C IRCU IT _____________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 02-12829 APRIL 4, 2003 _____________________________ THOMAS K. KAHN CLERK D. C. Docket No. 01-00054 CV-1-MM P
TRAVELERS INDEMNITY COMPANY,
Plaintiff-Counter- Defenda nt-Appellant,
versus
PCR INCORPORATED,
Defendant-C ounter- Claimant-Appellee,
DEBRA TURNER, As Personal Representative of the Estate of Thomas Paul Turner III, JAMES CR EIG HTO N, et al.
Defendants.
_________________________________________
Appeal from the United Sta tes District Court for the Northern District of Florida _________________________________________ (April 4, 2003) Before EDMONDSON, Chief Judge, KRAVITCH and GIBSON*, Circuit Judges.
PER CURIAM:
This case involves a determination by the district court that an insurance
company is o bligated to pro vide covera ge to an insured becaus e an ambiguous
exclusionary clause must be read to require specific intent by the insured to invoke
the intentional-tort exclusion from liability covera ge. The Florida Supreme C ourt,
after considering these same facts in the context of the Florida workers’
compensation statute, concluded that intentional torts included acts which involved
substantial certainty that death or injury would befall an employee. Before we
decide if Travelers Indemnity Company must provide liability coverage to PCR
Incorpora ted, w e need to ask the Florida Supreme C ourt for some a dvice abo ut
Florida law.
* Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by designation.
2 BACKGROUND
In 1991, an explosion a t the PCR chemical plant killed Pa ul Turner and
seriously injured Ja mes Cre ighton, chemical tec hnicians for PCR . Two experts
opined that the chemicals used to develop a rep lacement coolant for freon were
“highly reactive” and “prone to spontaneous and violent decomposition when heated
or compressed.” The explosion seemingly occurred when the chemicals were mixed
in containers that w ere ill-suited for the chemica l reaction. O ne expert s tated that a
“substantial ce rtainty” e xiste d tha t placing la rge q uantities of the se volatile
substances in a rudimentary propane tank rather than in a suitably equipped reactor
would result in an explosion. Turner v. PCR, Inc., 754 So. 2d 683, 6 85 (Fla. 2000).
Creighton and Turner’s wife brought suit in a Florida court for the damages
they suffered. PC R invoke d immunity fro m suit on the gro unds that the o nly
recourse for damages available to Creighton and Turner was through workers’
compensation. PCR claimed its behavior constituted no intentio nal to rt tha t wo uld
permit Creighton and Turner to bring suit against it outside of workers’
compens ation.
The Florid a Supreme C ourt eventually determined that a subjective , sp ecific
intent was not required to overcome tort immunity under the workers’ compensation
statute. After considering the facts of this case , the Florida Supreme Co urt
3 concluded that a substantial certainty of death or injury adequately supported an
intentional tort to overc ome employe r immunity from suit.
[The] intentional tort exc eption includes a n objective s tandard to measure whether the employer engaged in conduct which was substantially certa in to result in injury. This standa rd imputes intent upon emp loyers in c ircumstances where injury or death is objective ly “substantially certa in” to occ ur. T o hold otherw ise w ould virtua lly encourage a p ractice of “w illful blindness” on the part of employers who could ignore conditions that under an objective test would be found to be dangerous, and later claim lack of subjective knowledge or intent to harm an employee.
Turner, 754 So. 2d at 691 . The Florida Supreme C ourt concluded that there w ere
issues of fact about whether PCR engaged in conduct substantially certain to cause
injury or death and remanded the case to the trial court.
Before the explosion, Travelers had issued an insurance policy to PCR.
Travelers b rought an action for d eclaratory jud gment in the district court to
determine the coverage scop e of the ins urance p olicy. Travelers contend ed that it
bore no responsibility in defending or indemnifying PCR against the suit brought by
Creighton and Turner because the policy covered no intentional torts. Part One of
the p olicy provides workers’ co mpensation c overage . That coverage exte nds only
to injuries to employees that result from accident or disease. Part Two of the policy
provides e mployers’ liability insurance. The terms o f the policy require Tra velers to
pay all sums PCR “legally must pay as damages because of bodily injury to [PCR’s]
4 employees , provided the bodily injury is covere d by this Employe rs Liability
Insuranc e.” But the liability c overage is limite d to acc idental injury: “ This
employers liability insurance a pplies to bo dily injury by accident . . . .” Co verage
for accid enta l injury is subject to exclusions, includ ing “bod ily injury intentionally
caused or aggravate d by [PC R].” T ravelers is req uired by the po licy to defend
against any suit brought for damages payable under the terms of the policy (such as
damages for acc idental, unintentional injuries).
The district co urt determined tha t the insurance law of Florida required a ny
ambiguity in an insurance contract to be resolved in favor of the insured. Because
earlier Florida caselaw allowe d an insurance carrier to avo id coverage only where
an intentional tort was supported by a spec ific intent to cause harm, the d istrict court
concluded there e xisted, at least, some ambiguity in the clause “b odily injury
intentionally caused or aggravated” by PCR. The district court granted the motion
for judgment on the pleadings by PCR.
5 DISCUSSION
In the earlier cas e before the Florida Supreme Court, P CR c laimed it owed no
liability to Turner and Cre ighton becaus e “w orkers’ compens ation is the exclusive
remedy for ‘accidental injury or death arising out of work performed in the course
and scope of employment.’” Turner, 754 So. 2d at 68 6 (quoting Fla. Stat. §
440.0 9(1) (199 7)). The Florida Supreme C ourt, how ever, “ reaffirmed” in the
Turner decision that “workers’ compensation law does not protect an employer
from liability for an intentional tort against an employee.” Id. at 687. The high court
also stressed that, in the workers’ compensation context, two alternative bases exist
for an employee to demons trate an intentional tort s ufficient to avoid tort immunity:
the employer must have either “exhibit[ed] a deliberate intent to injure or engage[d]
in conduct which is substantially certain to result in injury or death.” Id. (internal
quote mark s and citation o mitted)(emphas is in original). The seco nd part of the
disjunctive te st is view ed o bjective ly and “imp utes intent upo n emp loyers in
circumstances where injury or death is objectively ‘substantially certain’ to occur.”
Id. at 691.
Travelers claims that the insurance policy with PCR specifically excluded
“bod ily injury intentionally caused or aggrava ted by you. ” Base d on this exclusion,
Travelers d enies a duty o n their part to de fend or to indemnify PC R against the suits
6 by Turner and Creighton. Travelers argues that injuries intentionally caused by
PCR include those injuries (or death) that are subs tantially certain to occur,
consistent with the conclusion of the Florida Supreme Court about workers’
compensation. The Turner case, accord ing to Travelers, should be e xtended to
impute intent on PC R and to relieve Travelers from its obligations unde r the
insurance co ntract.
We are required to app ly state law when construing insurance policies.
Hyman v. Nationwide Mut. Fire Ins. Co., 304 F.3d 1179, 1 186 (11th Cir. 2002).
Florida law requires that insurance policies be read for their plain language and that
every provision be given its full meaning and effect. Id. But if the “relevant policy
language is susc eptible to more than one rea sonable interp retation, one providing
coverage and the [ ] other limiting coverage, the insurance policy is considered
ambiguous.” Id. (quoting Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34
(Fla. 2000 )). An ambiguous policy must be “ interpreted libera lly in favor of the
insured and strictly against the drafter who prepared the policy.” Id. (internal quotes
omitted). “In fact, exclusionary clauses are cons trued even mo re strictly against the
insurer than coverage clauses.” Id. at 119 6 (interna l quotes omitted)(emp hasis
added).
7 The insurance agreement between Trave lers and PCR fails to add ress directly
the intent requirement for “bodily injury intentionally caused or aggravated” by
PCR. Two decisions of the Florida courts -- which predated the insurance policy
here -- see med to co nclude that sp ecific intent was re quired by the a mbiguous
exclusionary language of the insurance p olicies there unde r review. In Cloud v.
Shelby Mut. Ins. Co., 24 8 So . 2d 217 (Fla. 3d D CA 197 1), an ins ured bac ked his
vehicle into another occupied vehicle in a deliberate attempt to move the other
vehic le, w hich w as b lock ing the insured’ s vehicle in a drivew ay. When his vehic le
overrode the bumper of the other vehicle, a passenger in the other vehicle was
injured. The insurance compa ny sought exclusion from coverage bec ause the injury
was caused “intentionally by or at the direction of the insured.” Id. at 218 . The sta te
appellate c ourt determined that the defend ant intended to push the othe r car, but
intended no harm to the passenger.
The courts have generally held that injury or damage is “caused intentionally” within the meaning of an “intentional injury exclusion clause” if the insured has acted with the specific intent to cause harm to a third party, w ith the result that the insurer w ill not be relieved of its obligations under a liability policy containing such an exclusion unless the insured has acted w ith such a spe cific intent.
Id. (quoting 44 Am. Jur. 2d § 1411, at 259, “Insurance” )(emphasis added).
8 In Phoenix Ins. Co. v. Helton, 298 So. 2d 177 (Fla. 1st DCA 1974), an
insured defend ant drove his c ar into a crow d of peop le to extricate his w ife from a
fight. While moving his vehicle in the crowd, a man was injured. The insurance
company invoked an exclusionary clause, claiming the injuries were “caused
intentionally by or at the direction of the insured.” Id. at 178 . Relying princ ipally
on the language in Cloud, the state appellate court concluded that the insured must
have spe cifica lly intended to cause injury to the plaintiff before the insure r could
invoke the intentional tort exclusion from liability coverage. Id. at 180-82.
The policy clause excluding from coverage “bodily injury intentionally caused
or aggravated” by PCR may possibly be read -- in the light of Florida caselaw -- as
requiring specific intent. Resolving all ambiguities of the exclusion clause in favor
of the insured, it seems that Travelers could remain liable for what might be
interpreted as P CR ’s “ intentiona l” torts if the to rts w ere committed without specific
intent to cause injury to the employees.
The law of Florida on point s eems de batable . As the c ircumstances of this
liability-coverage case might lead us to a wrong conclusion about Florida law, we
think we nee d some a dvice. W e certify to the Florida S upreme C ourt the following
dispositive questions:
9 1. Do es Florida insuranc e law req uire a reading of sp ecific intent into an insurance clause exc epting from liability coverage “[b]od ily injury intentionally caused or aggravated” by the insured?
2. Is PC R in this case entitled to liability coverage b ased o n the language of this policy agreement, read in the light of Florida’s law of interpreting insurance policies?
The certified questions we seek to p ose to the Florida Supreme Court are
intended by us in no way to limit the scope of that high court’s review.* The
outcome of this declaratory judgment action will be resolved by interpretations of
Florida state law, and we invite a full discussion by the Florida Supreme Court. We
welcome their guidance. The records and briefs will accompany this certification as
a means o f assistance should the Florida S upreme C ourt acce pt the certification.
CERTIFIED QUESTIONS.
* We have addressed none of Travelers’ policy arguments about encouraging deliberate wrongdoing by shifting the liability burdens for wrongdoing onto the insurance industry. The Florida Supreme Court may wish to consider the po licy arguments as it contemplates this issue of state law.