                Case: 15-11438   Date Filed: 11/06/2015   Page: 1 of 7



                                                              [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 15-11438
                              Non-Argument Calendar
                             ______________________

                        D.C. Docket No. 2:12-cv-14081-JEM


EMPIRE FIRE & MARINE INSURANCE COMPANY

                                                                    Plaintiff–Appellee,

versus


SCOTT FLOYD,

                                                              Defendant–Appellant.

                            ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                            _______________________
                                 (November 6, 2015)
Before JORDAN, JILL PRYOR, and DUBINA, Circuit Judges.

PER CURIAM:
         Empire Fire & Marine Insurance Company (“Empire”) filed a complaint for
declaratory judgment in the district court. This action stemmed from an underlying
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Florida state court tort case. Empire sought a declaration with regard to its rights
and obligations pursuant to a supplemental liability insurance policy it provided to

Enterprise Leasing Company. The parties filed cross-motions for summary
judgment, and the district court granted Empire’s motion and denied Scott Floyd’s
motion based on an exclusionary provision of the insurance policy. Scott Floyd
appeals the district court’s judgment, and we reverse.
                               I. BACKGROUND
      Scott Floyd and Steven Floyd were employees of A-Plus Storage, Inc. Scott

Floyd rented a van from Enterprise Leasing Company (“Enterprise”) and drove
onto the premises of A-Plus Storage. As he was driving, Scott Floyd struck a
ladder that Steven Floyd was standing on, causing him to fall and sustain bodily
injuries. When Scott Floyd struck the ladder, he was preparing to move personal
belongings into a storage space on the premises. When he was injured, Steven
Floyd was performing maintenance work within the course and scope of his
employment for A-Plus Storage.
      When Scott Floyd rented the van for his personal use, he entered into a
supplemental liability insurance policy with Enterprise. Pursuant to the terms of
the policy, Scott Floyd was the insured. The policy excludes liability insurance
coverage related to bodily injury of any “fellow employee of the insured arising
out of and in the course of the fellow employee’s employment.” (R. DE 1, Exh. B,
Sec. I (D)(11). The policy does not define “fellow employee.”




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                                      II. ISSUE
      Whether the district court erred in granting summary judgment to Empire on

its declaratory judgment action.
                         III. STANDARD OF REVIEW
      We review de novo the district court’s grant of summary judgment. Jurich
v. Compass Marine, Inc., 764 F.3d 1302, 1304 (11th Cir. 2014). As with all
contracts, the interpretation of an insurance contract—including determining
whether an insurance provision is ambiguous—is a question of law to be

determined by the court and is subject to plenary review. See Fireman’s Fund Ins.
Co. v. Tropical Shipping & Constr. Co. Ltd., 254 F.3d 987, 1003 (11th Cir. 2001)
(standard of review is plenary); Amer. United Life Ins. Co. v. Martinez, 480 F.3d
1043, 1057 (11th Cir.2007) (“Interpreting provisions in insurance contracts ...
involves questions of law.”).
                                IV. DISCUSSION
      Under Florida law, courts construe insurance contracts in accordance with
the plain language of the policies as bargained for by the parties and must read the
contracts as a whole. Liberty Mutual Fire Ins. Co. v. Martinez, 157 So.3d 486, 488
(Fla. Dist. Ct. App. 2015). Further, courts interpret policy ambiguities liberally in
favor of the insured and strictly against the insurer who prepared the policy.
Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So.2d 467, 470 (Fla.1993).
Florida law is equally well-settled that insuring or coverage clauses are construed
in the broadest possible manner to effect the greatest extent of coverage. Hudson
v. Prudential Prop. & Cas. Ins. Co., 450 So.2d 565, 568 (Fla. Dist. Ct. App. 1984)

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(insurance coverage must be construed broadly and its exclusions narrowly); Nat'l
Merchandise Co. v. United Serv. Auto. Ass'n, 400 So.2d 526, 532 (Fla. Dist. Ct.

App. 1981) (terms in policy relating to coverage must be construed liberally in
favor of insured); Valdes v. Smalley, 303 So.2d 342, 344 (Fla. Dist. Ct. App. 1974)
(clause extending insurance to insured must be construed liberally in favor of
insured).
       In contrast to insuring clauses, however, courts should strictly construe
exclusionary clauses in liability insurance policies. See Hudson, 450 So.2d at 468;

Demshar v. AAACon Auto Transport, Inc., 337 So.2d 963, 965 (Fla.1976)
(“Exclusionary clauses in liability insurance policies are always strictly
construed.”); St. Paul Fire & Marine Ins. Co. v. Thomas, 273 So.2d 117 (Fla. Dist.
Ct. App. 1973) (well settled and almost universally accepted principle of
construing the exclusion in a manner which affords the broadest coverage). In
State Farm Fire & Cas. Ins. Co. v. Deni Assoc. of Florida., Inc., 678 So.2d 397
(Fla. Dist. Ct. App. 1996), the court addressed the strict construction of
exclusionary clauses in insurance policies. In that case, the court confronted a
clause that purported to deny any coverage for bodily injury claims caused by the
“discharge, dispersal, release or escape of pollutants,” and it further defined the
term pollutants. Id. at 399. In concluding that the exclusions barred coverage of
the claims in the suit, the court stated that “the current Florida rule is that strict
construction is required of exclusionary clauses in insurance contracts only in the
sense that the insurer is required to make clear precisely what is excluded from
coverage.” Id. at 401. If the insurer does not clearly draft an exclusion that can be

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“fairly and reasonably read both for and against coverage,” courts will construe the
exclusionary clause in favor of coverage. Id. “If the insurer makes clear that it has

excluded a particular coverage, however, the court is obliged to enforce the
contract as written.” Id. The court further explained that “[s]trict construction
does not mean that a court must always find coverage.” Id. “Where the insurer
has defined a term used in the policy in clear, simple, non-technical language, . . . ,
strict construction does not mean that judges are empowered to give the defined
term a different meaning deemed more socially responsible or desirable to the

insured.” Id.
      The Florida court decisions make it clear that if an exclusionary clause with
undefined terms—such as the present case—has not been stated with sufficient
clarity, then the rule of strict construction requires a construction in favor of the
insured. Hence, we conclude that the district court erred under Florida law in the
present case because it should have strictly construed the exclusion in favor of the
insured. See Hudson, supra; Demshar, supra; Deni, supra.
      The cases cited by the parties in their briefs are not persuasive because they
involve situations where both the alleged tortfeasor employee and the victim
employee were engaged in the course of their employment when the incident
occurred. See e.g. Empire Fire & Marine Ins. Co. v. Dust, 932 S.W. 2d 416, 418
(Mo. Ct. App. 1996) (under the fellow employee exclusion there is no coverage
because the tortfeasor and victim were employees of the same employer and both
were engaged in the course of their employment at the time of the accident). See
also Short v. Safeco Ins. Co. of Am., 864 S.W. 2d 361, 362 (Mo. Ct. App. 1993)

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(“fellow employee” exclusion in policy applied because both the alleged tortfeasor
and the plaintiff were employees of the ambulance company and both were in the

course and scope of their employment when the incident occurred). Moreover,
Florida courts interpreting a similar term to “fellow employee”—“cross
employee”—have determined that the applicability of the exclusion depends on
whether both employees were in the course and scope of their employment when
the tort occurred. See Mactown, Inc. v. Continental Ins. Co., 716 So.2d 289, 293
(Fla. Dist. Ct. App. 1998) (citing cases); Greathead v. Asplundh Tree Expert Co.,

473 So.2d 1380, 1384 (Fla. Dist. Ct. App. 1985) (“the case law is clear that
coverage of the co-employee will be excluded where (1) the co-employee is an
insured under the policy, and (2) both the employee and the co-employee were
acting within the course and scope of their employment at the time of the injury.”).
      In the present case, Scott Floyd was not acting within the scope of his
employment at the time of the incident. He was moving personal belongings into a
storage unit on the business’s premises. In contrast, Steven Floyd was acting
within the course and scope of his employment when he was injured. Although
Scott Floyd and Steven Floyd were “fellow employees” because they had the same
employer, Scott Floyd was not engaged in his employment when he drove the van
into the ladder, causing Steven Floyd’s injuries. The policy exclusion does not
state clearly that coverage is excluded under these circumstances. Thus, under
Florida law, the district court should have strictly interpreted the exclusion in favor
of Scott Floyd, the insured, and against the insurer, Empire. Accordingly, the
district court erred in granting summary judgment to Empire on its declaratory

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judgment action, and we reverse its judgment and remand this case with directions
that the district court enter judgment in favor of Scott Floyd consistent with this

opinion.
      REVERSED and REMANDED.




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