               Case: 13-10170        Date Filed: 04/24/2014      Page: 1 of 23


                                                                                   [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                Nos. 13-10170 & 13-15741
                               ________________________

                          D.C. Docket No. 4:10-cv-10110-JLK

JENNIFER A. STEPHENS, as Personal Representative of the
Estate of Charles Eugene Becker and as Assignee of
Anchorage Homes, LLC,

                                                                         Plaintiff - Appellant,

                                            versus

MID-CONTINENT CASUALTY COMPANY,
                                                                       Defendant – Appellee.

                               ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                           _________________________

                                       (April 24, 2014)

Before PRYOR and JORDAN, Circuit Judges, and FRIEDMAN, * District Judge.

FRIEDMAN, District Judge:


*
 Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting
by designation.
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      In this appeal, we are asked to review the district court’s interpretation of an

exclusion in an insurance policy issued by the appellee, Mid-Continent Casualty

Company, to a construction contractor, Anchorage Homes LLC, and the district

court’s conclusion that Mid-Continent Casualty Company was entitled to summary

judgment based on that exclusion. We affirm the grant of summary judgment,

though on different grounds than those articulated by the district court. We also

affirm the district court’s order awarding fees and costs to Mid-Continent Casualty

Company.


                                I. BACKGROUND

      On June 7, 2008, Charles Eugene Becker was working on a construction job

in Little Torch Key, Florida, helping to install a modular home on the property of

Jeffrey and Connie Kirkland. Near the end of the day, Becker began climbing

down a ladder attached to the side of the two-story home when the ladder detached

from the house. Both Becker and the ladder fell to the ground. Critically injured,

Becker died on the way to the hospital.

      The representative of Becker’s estate, Jennifer Stephens, subsequently

brought a wrongful death suit in Florida state court against the following parties:

Becker’s direct employer, Team Fritz; the Kirklands; and Anchorage Homes LLC

(“Anchorage”), another contractor working on the modular home construction

project. The present appeal stems from Stephens’ claims against Anchorage.

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      At the time of the accident, Anchorage held a commercial general liability

insurance policy with Mid-Continent Casualty Company (“Mid-Continent”).

Under this policy, Mid-Continent agreed to “pay those sums that [Anchorage]

becomes legally obligated to pay as damages because of ‘bodily injury’ or

‘property damage’ to which this insurance applies.” The policy also provided that

Mid-Continent had “the right and duty to defend the insured against any ‘suit’

seeking those damages.” In addition, the policy contained several exclusions from

coverage, including an exclusion of damages relating to injuries to any of

Anchorage’s employees.

      Upon learning that Stephens had initiated a suit in state court and had named

Anchorage as one of the defendants, Anchorage filed a claim with Mid-Continent,

seeking legal defense and indemnification. On April 20, 2009, Mid-Continent

notified Anchorage that its insurance policy excluded coverage for damages arising

from Becker’s death, and that Mid-Continent therefore would not defend or

indemnify Anchorage. Mid-Continent explained that its investigation had revealed

that Anchorage, as construction contractor for the Kirkland project, had employed

Team Fritz as a subcontractor. According to Mid-Continent, Team Fritz’s

employees therefore were the “statutory employees” of Anchorage under Florida

law. Any liability for injury to Becker therefore was excluded from coverage

under the policy’s employee exclusion clause.


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      After receiving this letter, Anchorage proceeded in the state court

proceedings with its own counsel. On August 27, 2010, Stephens and Anchorage

signed a mediated settlement agreement and executed a so-called Coblentz

agreement, which resolved Stephens’ claims against Anchorage. Under this

agreement, Anchorage stipulated to the entry of a judgment in favor of Stephens in

the amount of $4,350,000, and Anchorage assigned to Stephens its rights with

respect to its claims against Mid-Continent. In turn, Stephens agreed not to collect

the amount of the judgment from Anchorage.

      On December 8, 2010, Stephens, as assignee of Anchorage, brought suit

against Mid-Continent in the U.S. District Court for the Southern District of

Florida, asserting that Mid-Continent had wrongfully refused to defend and

indemnify Anchorage in the state court proceedings, and seeking as relief the

judgment amount of $4,350,000. After various pre-trial matters, including

discovery and proceedings on a motion to dismiss, the parties filed cross-motions

for summary judgment. The district court granted Mid-Continent’s motion and

denied Stephens’ motion, concluding that the Coblentz agreement could not be

enforced against Mid-Continent as a matter of law. Stephens v. Mid-Continent

Cas. Co., 915 F. Supp. 2d 1320 (S.D. Fla. 2013). The district court reasoned that

the state court pleadings and the record evidence established that Becker was




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exempted from Anchorage’s insurance policy with Mid-Continent under the

policy’s employee exclusion clause. Id. at 1331-34. Stephens brings this appeal.


                          II. STANDARD OF REVIEW

      We review a district court’s grant of summary judgment de novo, viewing all

the evidence, and drawing all reasonable factual inferences, in favor of the non-

moving party. See, e.g., Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1307

(11th Cir. 2012). The interpretation of provisions in an insurance contract is a

question of law, also reviewed de novo. James River Ins. Co. v. Ground Down

Eng’g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008). The decision of a district court

to award attorney’s fees is reviewed for abuse of discretion. Menchise v. Akerman

Senterfitt, 532 F.3d 1146, 1149 (11th Cir. 2008).

      Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “Once the movant adequately supports its

motion, the burden shifts to the nonmoving party to show that specific facts exist

that raise a genuine issue for trial.” Dietz v. Smithkline Beecham Corp., 598 F.3d

812, 815 (11th Cir. 2010). If the non-movant’s evidence is “merely colorable” or

“not significantly probative,” summary judgment may be granted. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S. Ct. 2505, 2511 (1986); see Scott

v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007) (“[W]here the record

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taken as a whole could not lead a rational trier of fact to find for the non-moving

party, there is ‘no genuine issue for trial.’”) (internal quotation omitted). The

Court may uphold the district court’s judgment “on any ground that finds support

in the record.” Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir.

2012) (quoting Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir.

2001)).


                                 III. DISCUSSION

      As noted, Stephens brings this suit against Mid-Continent pursuant to a

Coblentz agreement with Anchorage. See Coblentz v. Am. Sur. Co. of New York,

416 F.2d 1059 (5th Cir. 1969). In Coblentz, the Fifth Circuit held that if a liability

insurer is informed of an action against its insured, but declines to defend the

insured, the insurer may be held to a consent judgment entered in that action,

absent fraud or collusion. Id. at 1062-63; see also Perera v. U.S. Fid. & Guar. Co.,

35 So. 3d 893, 899–900 (Fla. 2010). To recover from Mid-Continent the sums

awarded under the Coblentz agreement she entered into with Anchorage, Stephens

must prove (a) that Mid-Continent wrongfully refused to defend Anchorage in the

underlying state court action; (b) that Mid-Continent had a duty under the

insurance policy to indemnify Anchorage; and (c) that the settlement between

Anchorage and Stephens was reasonable and made in good faith. See Chomat v.



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N. Ins. Co. of New York, 919 So. 2d 535, 537 (Fla. 3d DCA 2006); Mid-Continent

Cas. Co. v. Am. Pride Bldg. Co., LLC, 534 F. App’x 926, 928 (11th Cir. 2013).


                      A. Interpretation of the Insurance Policy

      The parties dispute the meaning of the insurance policy’s employee

exclusion clause, which limits the scope of Mid-Continent’s duties to defend and to

indemnify. We therefore begin by analyzing this provision, the interpretation of

which is a matter of law. James River Ins. Co., 540 F.3d at 1274.

      Anchorage’s insurance policy with Mid-Continent includes a standard

employee exclusion clause, which states that Mid-Continent will not cover

“‘[b]odily injury’ to . . . [a]n ‘employee’ of the insured arising out of and in the

course of . . . [e]mployment by the insured.” This exemption expressly refers to

“employees,” and all parties agree that Becker was not a literal employee of

Anchorage. Nevertheless, Mid-Continent maintained, and the district court agreed,

that Florida law provides that standard employee exclusion clauses like the one at

issue here apply both to actual employees and to “statutory employees.” Stephens,

915 F. Supp. 2d at 1331–32. Stephens contends that the policy must be read

literally, such that the exclusion clause is limited to actual employees. We reject

Stephens’ argument and affirm the district court’s decision on this point.

      Under Florida law, a contractor who sublets part of its work to a

subcontractor develops a statutory employment relationship with the employees of

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that subcontractor. As the district court correctly noted, the concept of a “statutory

employee” derives from Florida’s Workers’ Compensation Law, Fla. Stat.

§§ 440.01 et seq. See Florida Ins. Guar. Ass’n, Inc. v. Revoredo, 698 So. 2d 890,

891–92 (Fla. 3d DCA 2006). The Act states, in relevant part:

             (a) . . . Any contractor or subcontractor who engages in
             any public or private construction in the state shall secure
             and maintain compensation for his or her employees
             under this chapter as provided in s. 440.38.

             (b) In case a contractor sublets any part or parts of his or
             her contract work to a subcontractor or subcontractors, all
             of the employees of such contractor and subcontractor or
             subcontractors engaged on such contract work shall be
             deemed to be employed in one and the same business or
             establishment, and the contractor shall be liable for, and
             shall secure, the payment of compensation to all such
             employees, except to employees of a subcontractor who
             has secured such payment.

Fla. Stat. § 440.10(1). The Florida Supreme Court has explained that the “effect of

section 440.10 is that where a subcontractor performing part of the work of a

contractor fails to secure payment of compensation, the contractor is liable for

same.” Motchkavitz v. L.C. Boggs Indus., Inc., 407 So. 2d 910, 912 (Fla. 1981),

overruled on other grounds, Emp’rs Ins. of Wausau v. Abernathy, 442 So. 2d 953,

954 (Fla. 1983).

      Under Florida law, “[s]tatutory employees have been treated identically to

actual employees in relation to standard employee exclusion clauses.”

Revoredo, 698 So. 2d at 892 (citing Dodge v. Fid. & Cas. Co. of N.Y., 424 So. 2d

                                          8
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39 (Fla. 5th DCA 1982) and Michaels v. U.S. Fid. & Guar. Co., 129 So. 2d 427

(Fla. 2d DCA 1961)). In Revoredo, Florida’s Third District Court of Appeals

reasoned:

             The logic in the exclusion from coverage of both types of
             employees is simple and compelling: the only coverage
             intended, and for which the premium has been paid, is
             the liability of the insured to the public, as distinguished
             from liability to the insured’s employees whether or not
             they are protected by the workers’ compensation law. . . .
             [the statute] does not make the statutory employer-
             employee relationship contingent on the securing of
             workers’ compensation for the employee.

Id. (emphasis added); see also Amerisure Ins. Co. v. Orange & Blue Const., Inc.,

545 F. App’x 851, 855 (11th Cir. 2013) (“Unlike worker’s compensation insurance

or employer’s liability insurance, which exist to provide employers with coverage

for injuries that occur to employees during the scope of employment, the sole

purpose of commercial general liability insurance is to provide coverage for

injuries that occur to the public-at-large.”).

      The district court correctly concluded that Florida’s law requires that the

employee exclusion clause in Anchorage’s insurance policy be construed as

applying both to actual and statutory employees of Anchorage. Having resolved

this question of contract interpretation, we turn to the issue of whether Stephens

can establish that Mid-Continent had a duty under the policy to defend and

indemnify Anchorage in the state court proceeding.


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                               B. Summary Judgment

                                  1. Duty to Defend

      Under Florida law, an insurance provider’s duty to defend an insured party

“depends solely on the facts and legal theories alleged in the pleadings and claims

against the insured.” James River Ins. Co., 540 F.3d at 1275 (emphasis added)

(internal quotation omitted). The duty to defend “arises when the relevant

pleadings allege facts that ‘fairly and potentially bring the suit within policy

coverage.’” Lawyers Title Ins. Corp. v. JDC (Am.) Corp., 52 F.3d 1575,

1580 (11th Cir. 1995) (internal quotation omitted); see U.S. Fire Ins. Co. v.

Hayden Bonded Storage Co., 930 So. 2d 686, 691 (Fla. 4th DCA 2006). “Thus, an

insurer is obligated to defend a claim even if it is uncertain whether coverage exists

under the policy.” Mid-Continent Cas. Co. v. Am. Pride Bldg. Co., LLC, 601 F.3d

1143, 1149 (11th Cir. 2010) (quoting First Am. Title Ins. Co. v. Nat’l Union Fire

Ins. Co., 695 So. 2d 475, 476 (Fla. 3d DCA 1997)). “[W]hen the actual facts are

inconsistent with the allegations in the complaint, the allegations in the complaint

control in determining the insurer’s duty to defend.” Jones v. Florida Ins. Guar.

Ass’n, Inc., 908 So. 2d 435, 443 (Fla. 2005) (quoting Baron Oil Co. v. Nationwide

Mut. Fire. Ins. Co., 470 So. 2d 810, 814 (Fla. 1st DCA 1985)).

      Florida courts have found, however, that in special circumstances, a court

may consider extrinsic facts if those facts are undisputed, and, had they been pled


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in the complaint, they clearly would have placed the claims outside the scope of

coverage. See Nateman v. Hartford Cas. Ins. Co., 544 So. 2d 1026 (Fla. 3d DCA

1989); Nationwide Mut. Fire Ins. Co. v. Keen, 658 So. 2d 1101 (Fla. 4th DCA

1995). As this Court has noted, however, such cases are best viewed “as

exceptional cases in which courts have crafted an equitable remedy when it is

manifestly obvious to all involved that the actual facts placed the claims outside

the scope of coverage.” First Specialty Ins. Corp. v. 633 Partners, Ltd., 300 F.

App’x 777, 786 (11th Cir. 2008).

      In the civil complaint filed in Florida state court, Stephens alleged that

Anchorage was hired to supply and install a modular home on the Kirkland

property, and that in the course of this project, Anchorage violated its general

obligations to maintain the premises in a safe condition and to alert workers and

employees of dangerous conditions. Stephens alleged that Anchorage’s gross

negligence resulted in the death of Becker, who was employed at the time by Team

Fritz, who was performing installation work. There are no allegations in the

complaint as to the employment relationship between Becker and Anchorage. At

first blush, the allegations in that complaint would seem to “fairly and potentially

bring the suit within . . . coverage” of Anchorage’s insurance policy, which

provides general coverage for personal injury claims against Anchorage. Lawyers

Title Ins. Corp., 52 F.3d at 1580.


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       The district court, however, discerned sufficient facts within the complaint

itself to conclude that Anchorage had a contractor-subcontractor relationship with

Team Fritz, and by extension a statutory relationship with Becker, thereby

triggering the policy’s employee exclusion clause, relieving Anchorage of the duty

to defend. The court observed that the complaint alleged that Anchorage “was

hired to supply and install a modular home,” and that Team Fritz also was “hired

to install a modular home.” Stephens, 915 F. Supp. 2d at 1332. These allegations,

the court reasoned, suggested a subletting of Anchorage’s duties to Fritz. Id. The

district court also noted that the complaint included allegations that Anchorage

failed to recognize the likelihood that an “employee” would be injured. Id. at

1332–33. 1

       Unlike the district court, we doubt that these allegations in the state court

complaint are sufficient in themselves to place the claims outside of policy

coverage for purposes of the duty to defend. But we need not resolve this question

nor address the more difficult question of whether resort to extrinsic evidence

might be appropriate in this case. This is because the record evidence establishes

that, regardless of whether there was a duty to defend, Mid-Continent had no duty

to indemnify Anchorage for claims arising from Becker’s death.

       1
         Conceding that it “may perhaps seem abrupt to base the fate of this case on merely the
use of the words ‘install,’ ‘worker,’ and ‘employee,’” the district court observed that “there is a
vast array of extrinsic evidence in the record supporting a lack of coverage as well.” Stephens,
915 F. Supp. 2d at 1333.

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                               2. Duty to Indemnify

      Unlike the duty to defend, which generally is triggered by the allegations in

the underlying complaint, an insurance company’s duty to indemnify an insured

party “is narrower and is determined by the underlying facts adduced at trial or

developed through discovery during the litigation.” U.S. Fire Ins. Co. v. Hayden

Bonded Storage Co., 930 So. 2d at 691; see also Hagen v. Aetna Cas. and Sur. Co.,

675 So. 2d 963, 965 (Fla. 5th DCA 1996) (“Regardless of the allegations of the

complaint, it is the underlying facts that determine the duty to indemnify.”). In

other words, to determine whether there is a duty to indemnify, one looks at the

actual facts, not only those that were alleged in the state court complaint. And in

order for a duty to indemnify to arise, the insurance policy must cover the relevant

incident.

      Mid-Continent’s duty to indemnify Anchorage depends on whether Becker

was Anchorage’s statutory employee, and therefore turns on the actual relationship

between Anchorage and Team Fritz – that is to say, whether Team Fritz was

Anchorage’s subcontractor. Mid-Continent argues that Anchorage acted as a

general contractor on the Kirkland project, and that Anchorage sublet part of its

contractual obligation to Team Fritz. Stephens maintains that the Kirklands never

hired a general contractor – they acted as their own general contractor – and

employed Anchorage merely as a subcontractor. Under Stephens’ theory,


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Anchorage and Team Fritz were both subcontractors working side by side for the

Kirklands, thereby precluding any statutory employment relationship between

Anchorage and Team Fritz’s employees.

      After a careful review of the record, we conclude that the evidence clearly

establishes that Anchorage served as the general contractor for the construction

project, and that Anchorage had a contractor-subcontractor relationship with Team

Fritz. Although Stephens calls our attention to points of factual dispute in the

record, none of these disputes is material to the question of Anchorage’s role in the

project, or to its relationship with Team Fritz.

      The parties agree that on August 13, 2007, Anchorage entered into a written

contract, entitled an Owner/Contractor Agreement, with the Kirklands. The

Agreement was set forth on Anchorage letterhead, on which the words “General

Contractor CGC1504438” were printed at the top of the page. The Agreement

provided that Anchorage would “furnish materials and perform all of the work

shown on the construction documents” for the “system built home . . . along with

site work and foundation.” In exchange “for the material and labor to be

performed under the contract,” the Kirklands promised to pay Anchorage

$343,800. This sum would be doled out in progress payments upon completion of

various steps in the project. After an initial down payment, the Kirklands would

pay Anchorage $45,000 upon completion of the foundation. After Anchorage


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completed the delivery and set of the home, the Kirklands would pay Anchorage

$160,000. The contract also provided for various payments upon completion of

other steps, including plumbing, electrical work, and carpentry.

      The Agreement granted Anchorage the right to engage subcontractors, who

would be paid directly by Anchorage, to perform the contract work. Anchorage

would, however, “in all instances remain responsible for the proper completion of

the Contract.” The Agreement also provided that Anchorage would “supervise and

direct all the work.” Under the Agreement, Anchorage was required to maintain a

commercial general liability insurance policy and workers’ compensation

insurance.

      There is no dispute that the Kirklands paid to Anchorage the deposit and the

progress payments set forth in the Owner/Contractor Agreement. Anchorage

accepted these payments and used the funds to pay the subcontractors on the

project.

      The parties also agree that Team Fritz was hired to set the modular home, a

task that is expressly included as part of the contract work in the Owner/Contractor

Agreement. Team Fritz’s workers successfully set the modular home on the

foundation, and Anchorage paid Team Fritz for this work. These payments were

issued on Anchorage checks.




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      In addition to these undisputed facts, Mid-Continent points to a wide array

of other evidence indicating that Anchorage served as the general contractor on the

project and was in a vertical relationship with Team Fritz. For example, owner

Jeffrey Kirkland testified that Anchorage was the general contractor, and that

Anchorage hired and supervised the subcontractors, including Team Fritz. Mid-

Continent also calls the court’s attention to the deposition testimony of Jack Fritz,

the owner of Team Fritz, who testified that the Kirklands had hired Anchorage,

who in turn hired Fritz. Fritz also testified that William Liptak, Anchorage’s

owner, stopped by the construction site on a daily basis to check on the project’s

progress, and that Fritz contacted Liptak when issues arose on the project. Mid-

Continent also notes that a sign reading “Anchorage Homes LLC – General

Contractor” was posted on the Kirklands’ property throughout construction.

      In response, Stephens points to several items in the record which, she

contends, raise factual questions about Anchorage’s relationship to Team Fritz.

Specifically, she argues that this evidence creates a dispute with respect to the

following issues: (1) whether Anchorage and the Kirklands entered into a

contemporaneous oral agreement modifying the terms of the Owner/Contractor

Agreement; (2) whether a written contract existed between Anchorage and Team

Fritz; (3) whether a building permit lists Anchorage as a subcontractor of the

Kirklands, rather than a general contractor; and (4) whether the Kirklands hired or


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were involved in hiring Team Fritz directly. As discussed below, none of these

issues raises genuine questions of material fact as to Anchorage’s relationship with

Fritz.

         Stephens first argues that the Owner/Contractor Agreement, signed by

Jeffrey Kirkland and Bill Liptak, did not reflect the true intent of the parties.

Instead, she contends, the Kirklands and Anchorage intended for Anchorage to

serve merely as a subcontractor of the Kirklands. She bases this argument on the

deposition testimony of Bill Liptak, who testified that Anchorage declined to serve

as general contractor on the project, and merely agreed to sell a modular home to

the Kirklands and manage some administrative details “as a friend.”

         Taking this testimony at face value – i.e., assuming that Liptak verbally

committed to a more confined role on the Kirkland project – this fact is irrelevant

to Anchorage’s legal obligations under the Agreement. Anchorage and Kirkland’s

legal relationship is defined by the unambiguous terms of the contract that they

entered into on August 13, 2007. “If the contract is clear and unambiguous, the

legal construction of it follows, regardless of what construction may apparently

have been placed upon it by the parties.” Solymar Invs., Ltd. v. Banco Santander

S.A., 672 F.3d 981, 991 (11th Cir. 2012) (quoting Arnold v. First Sav. & Trust Co.,

104 Fla. 545, 559, 141 So. 608, 608 (1932)).




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       The Agreement unambiguously sets forth Anchorage’s obligations as

general contractor on the project, providing that Anchorage would “supervise and

direct all the work” and would “in all instances remain responsible for the proper

completion of the contract.” Any evidence of a contemporaneous oral agreement

modifying the Agreement’s terms is irrelevant to Anchorage’s legal obligations.

See Duval Motors Co. v. Rogers, 73 So. 3d 261, 265 (Fla. 1st DCA 2011); Bird

Lakes Dev. v. Meruelo, 626 So. 2d 234, 237 (Fla. 3d DCA 1993) (“Under the parol

evidence rule the terms of a valid written contract cannot be varied by a verbal

agreement or other extrinsic evidence where the agreement was made before or at

the time of the contract’s execution.”).

       Second, Stephens raises the question of whether a written contract existed

between Anchorage and Team Fritz. Stephens cites the testimony of Jack Fritz,

who stated that he had not entered a contract with Anchorage for the Kirkland

project.2 But this evidence does little to further Stephens’ case, as a written

contract is not necessary to establish a contractor-subcontractor relationship. See

Orama v. Dunmire, 552 So. 2d 924, 925 (Fla. 1st DCA 1989); Reed v. Henry C.

Beck Co., 510 So. 2d 613, 614 (Fla. 3d DCA 1987). Here, the relationship was


       2
          In response, Mid-Continent points to other portions of Jack Fritz’s testimony, where he
reports that he worked for Anchorage, regardless of whether a formal contract was signed. Mid-
Continent also calls the Court’s attention to a copy of a paid estimate for Team Fritz’s work, sent
by Fritz to Anchorage, which Anchorage once described to Mid-Continent as “the Fritz contract
on the Kirkland installation with contract terms.” But this estimate does not resemble a formal
contract.

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established through the course of conduct by Anchorage and Team Fritz, and by

the Owner/Contractor Agreement, in which Anchorage “assumed the legal position

of general contractor for the job.” Orama, 552 So. 2d at 925–26 (rejecting general

contractor’s argument that Section 440.10(1) did not apply because he did not enter

into written contract with subcontractor). The evidence that there was no written

contract therefore does not present a genuine issue of material fact as to the parties’

relationship.

      Third, Stephens cites evidence that Anchorage is identified as a

subcontractor on a permit issued by the Monroe County Building Department. But

it is unclear what import this evidence has, if any. The parties agree that the

Kirklands applied for this permit in 2004, years before the Owner/Contractor

Agreement was signed. The parties also agree that on August 9, 2007, Jeffrey

Kirkland asked the county to add Anchorage to his existing building permit. In

doing so, Kirkland used a form letter in which he identified himself as the owner of

the property, but did not specify whether Anchorage was a contractor or

subcontractor. And in later communications with the Monroe County Building

Department, Anchorage held itself out as a general contractor, by using letterhead

that referred to Anchorage as a general contractor and provided its general

contractor license number. To the extent that Stephens cites the permit as evidence

that the parties represented to the Monroe County Building Department that


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Anchorage was a subcontractor, such an inference is not reasonably supported in

the record.

      Finally, Stephens asserts that there is a factual dispute as to whether the

Kirklands selected and hired Team Fritz for the construction project. Stephens

cites the deposition testimony of Bill Liptak, who testified that he had spoken with

the Kirklands about Team Fritz coming on the project after the Kirklands

encountered Jack Fritz setting a job down the street. According to Liptak, it was

actually the Kirklands who hired Fritz.

      Stephens argues that Liptak’s testimony supports an inference that it was the

Kirklands – not Anchorage – who entered into a contractor-subcontractor

relationship with Fritz for the installation work. But such an inference is plainly

contradicted by other, undisputed evidence: most importantly, the

Owner/Contractor Agreement, which assigned to Anchorage sole responsibility for

the supervision of subcontractors, their payment, and the completion of the work

detailed in the Agreement, including the installation work. Under the Agreement,

the Kirklands contracted away their rights to directly employ any subcontractors

for the construction project. Stephens’ theory also is in tension with the

undisputed evidence that Anchorage was paid pursuant to the Owner/Contractor

Agreement, and that Anchorage issued payments to Fritz for the installation work.




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Stephens advocates for an inference that is not reasonable, as it cannot be

reconciled with the undisputed evidence.

      By contrast, Mid-Continent’s theory – that Anchorage assumed the role of

Fritz’s employer, regardless of who did the hiring – is entirely consistent with the

evidence in the record. Mid-Continent’s theory does not contradict the

Owner/Contractor Agreement, which authorized the Kirklands to contact

subcontractors if they received the consent of Anchorage, and which provided that

Anchorage retained sole responsibility for completion of the project work. And it

is consistent with the general rule that an owner’s contact with a subcontractor

does not destroy the contractor-subcontractor relationship. See Lingold v.

Transamerica Ins. Co., 416 So. 2d 1271, 1273 (Fla. 5th DCA 1982) (holding that

firm that performed part of contractor’s obligation under the main contract

necessarily was a subcontractor to the main contractor, “notwithstanding that the

owner [of the property] had some direct dealings” with the firm).

      In sum, none of the evidence cited by Stephens raises a genuine question of

material fact that bears on Anchorage’s relationship with Team Fritz. To the

contrary, there is overwhelming evidence establishing that Anchorage was the

general contractor on the Kirkland project and was in a vertical contractor-

subcontractor relationship with Team Fritz.




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      Because Anchorage was the statutory employer of Charles Becker, Team

Fritz’s employee, Anchorage was not entitled to indemnification under its general

liability insurance policy for damages arising from Becker’s death on the job.

Stephens therefore cannot establish that Mid-Continent had a duty to indemnify

Anchorage in the underlying suit, as required under Coblentz in order to enforce

the settlement agreement against Mid-Continent. There are no genuine issues of

material fact, and Mid-Continent is entitled to judgment as a matter of law.

      In addition to appealing the district court’s summary judgment decision,

Stephens has appealed the district court’s order awarding fees and costs to

Mid-Continent. Stephens does not contest the amounts awarded to Mid-Continent,

but merely contends “that the [o]rder awarding fees and costs should be vacated if

this Court vacates the judgment in Mid-Continent’s favor.” Because we uphold the

judgment entered below, we also affirm the district court’s fee and cost order.

      AFFIRMED.




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JORDAN, Circuit Judge, concurring:

      Given its summary judgment posture, this case is, for me, a close one. But

for the reasons stated by Judge Friedman in his opinion for the court -- an opinion I

join -- a reasonable jury could not have fairly found that Team Fritz was not one of

Anchorage’s subcontractors. In summary judgment parlance, the evidence

presented by Ms. Stephens was a “mere scintilla,” and did not create a genuine

issue of material fact as to the relationship between Anchorage and Team Fritz.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Of great

significance to me is the undisputed fact that Anchorage (and not the Kirklands)

paid Team Fritz for its work in setting the modular home on the foundation. If

Team Fritz was not one of Anchorage’s subcontractors, Anchorage would have

had no reason to pay Team Fritz.




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