                                                                    [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.

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                                      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.

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