             Case: 12-15466    Date Filed: 06/19/2014   Page: 1 of 14


                                                         [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-15466
                          ________________________

                      D.C. Docket No. 1:11-cv-21015-PAS


EVANSTON INSURANCE COMPANY,
an Illinois Corporation,
                                                               Plaintiff - Appellee,

                                     versus

DESIGN BUILD INTERAMERICAN, INC,
a Florida Corporation, et al.,


                                                                        Defendants,



PILAR PENA,
individually and as Plenary Guardian
of Alberto Zambrana, Florida residents,
                                                            Defendant - Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________
                                 (June 19, 2014)
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                            ON PETITION FOR REHEARING


Before MARTIN, JORDAN, and SUHRHEINRICH, * Circuit Judges.

PER CURIAM:

       We deny Evanston Insurance Company’s petition for rehearing and motion

to certify, grant in part Pilar Pena’s petition for rehearing, and substitute this

opinion for the opinion issued on April 8, 2014.

       Pilar Pena, appearing individually and as guardian of her husband Alberto

Zambrana, appeals the entry of summary judgment in favor of Evanston Insurance

Company in an insurance coverage dispute arising out of injuries Mr. Zambrana

sustained at a construction site. 1 Evanston sought a declaratory judgment that the

excess commercial general liability insurance policy it issued to Design Build

Interamerican, Inc. does not cover the negligence claims asserted by Ms. Pena in

state court against DBI and three of DBI’s employees, Manuel Leon, Pedro Ramos,

and Sergio Ruiz.2 The district court concluded that because Mr. Zambrana


       *
          Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit,
sitting by designation.
       1
          Mr. Zambrana was critically injured while delivering a steel pipe to a construction site
managed by DBI. Mr. Zambrana was delivering the pipe on behalf of Royal Plumbing Inc., a
subcontractor of DBI. When he arrived at the site with the pipe, Mr. Zambrana was asked to help
carry it to an upper level of the construction site. While on the upper level, he stepped on an
unsupported drop ceiling and fell twenty feet to a concrete floor, sustaining serious injuries.
       2
          Mr. Leon is DBI’s President, Mr. Ramos is Mr. Leon’s partner, and Mr. Ruiz is a DBI
employee. It is not disputed that the CGL policy provides coverage to DBI and also to DBI’s
officers and employees, subject to the policy’s exceptions and/or exclusions.
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sustained injuries while he was performing duties related to the conduct of DBI’s

business, his claims are excluded under the CGL’s employer’s liability exclusion,

even when the policy’s separation of insureds provision is applied to that

exclusion. 3

       On appeal, Ms. Pena argues that, under Florida law, the separation of

insureds provision, as applied to the “any insured” language within the employer’s

liability exclusion, precludes application of this exclusion in the context of an

employee suing a co-employee rather than suing his or her employer. Ms. Pena

does not dispute that the employer’s liability exclusion precludes coverage for her

claims against DBI (as Mr. Zambrana’s employer), but rather argues that coverage

is not precluded for the claims against the employees of DBI, namely Messrs.

Leon, Ramos, and Ruiz.

       Having carefully considered the parties’ briefs and the record in this case

and after having the benefit of oral argument, we reverse.

                                  I. Standard of Review




       3
           The district court’s order granting summary judgment to Evanston simply incorporated
its earlier summary judgment order in a related, but separate, declaratory judgment action
involving Nautilus Insurance Company, which had issued the primary insurance policy to DBI
for $1,000,000.00 in coverage, against the same defendants. Evanston’s CGL policy provided
$1,000,000.00 of coverage in excess of the Nautilus policy and included a “follow the form”
provision, in which all of the terms and provisions of the primary insurance policy, namely the
Nautilus CGL policy, are incorporated into the Evanston policy.
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      We review the district court’s grant of summary judgment de novo, applying

the same legal standards as the district court. Hickson Corp. v. N. Crossarm Co.,

Inc., 357 F.3d 1256, 1259 (11th Cir. 2004). Summary judgment is properly

granted where “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)).

      The interpretation of an insurance contract is a matter of law subject to de

novo review. Dahl-Eimers v. Mut. of Omaha Life Ins. Co., 986 F.2d 1379, 1381

(11th Cir. 1993). Because this is a diversity action, Florida law governs our

interpretation of the CGL policy in this case. Hartford Acc. & Indem. Co. v.

Beaver, 466 F.3d 1289, 1291 (11th Cir. 2006).

                                   II. Discussion

      The parties’ dispute centers on the proper interpretation of two provisions in

the CGL policy.

      Evanston contends that the plain language of the employer’s liability

exclusion precludes coverage for Mr. Zambrana’s claims against DBI and the three

named defendants. That provision provides, in relevant part:

      Exclusion: Injury to Employees, Contractors, Volunteers and Workers

      . . . This Insurance does not apply to:

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      e. Employer’s Liability

             “Bodily injury” to:

             (1) An “employee” of any insured 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[.]

             . . . This exclusion applies:

             (1) Whether any insured may be liable as an employer or in any
             other capacity . . . .

Evanston argues that because it is undisputed that Mr. Zambrana was an employee

of DBI (as defined in the CGL policy) who was performing duties related to DBI’s

business at the time he suffered injuries, the plain language of the employer’s

liability exclusion precludes coverage.

      Ms. Pena does not dispute that Mr. Zambrana was an “employee” of DBI as

defined in the employer liability exclusion or that he was performing duties related

to DBI’s business, but instead responds that the exclusion’s terminology (“any

insured”) must be read in light of the policy’s separation of insureds provision

(also commonly referred to as a “severability of interest” provision), which

provides:

      7. Separation Of Insureds

      Except with respect to the Limits of Insurance, and
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      any rights or duties specifically assigned in this
      Coverage Part to the first Named Insured, this Insurance
      applies:

      a. As if each Named Insured were the only
      Named Insured; and

      b. Separately to each insured against whom claim
      is made or “suit” is brought.

Florida courts have explained that severability clauses, like the separation of

insureds provision here, create separate insurable interests in each individual

insured under a policy, such that the conduct of one insured will not necessarily

exclude coverage for all other insureds. See Mactown, Inc. v. Cont’l Ins. Co., 716

So. 2d 289, 292-93 (Fla. 3d DCA 1998). Thus, in Ms. Pena’s view, the entire CGL

policy must be read as if it applies separately to Messrs. Leon, Ramos, and Ruiz so

that the language—“an employee of any insured”—in the employer’s liability

exclusion would not preclude coverage for Messrs. Leon, Ramos, or Ruiz because

Mr. Zambrana was not “an employee of [Messrs.] [Leon], [Ramos], or [Ruiz].”

Rather, he was an employee of DBI only, such that the employer’s liability

exclusion would bar coverage only as to DBI.

      In support of her construction of the CGL policy, Ms. Pena relies on Premier

Ins. Co. v. Adams, 632 So. 2d 1054 (Fla. 5th DCA 1994). In Premier, the Fifth

District considered the effect of a severability of insurance clause in a

homeowner’s policy on the policy’s exclusionary clause. Id. at 1056. The

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severability clause provided that “[t]his insurance applies separately to each

insured[,]” id., and the exclusionary clause precluded coverage for bodily injury

“which is expected or intended by any insured,” id. at 1055. The Fifth District first

noted that there were no Florida cases dealing with the “interaction of exclusionary

clauses and severability clauses or the term ‘any insured’ as contrasted to ‘an

insured’ or ‘the insured,’ in an exclusionary clause” id., and thus looked to

decisions in several other jurisdictions, id. at 1056–57. The Fifth District found

persuasive the reasoning of the Massachusetts Supreme Court that the severability

clause created “a separate insurance policy for each insured,” and thus the use of

the term “any insured” in the exclusionary provision of the policy “referred only to

persons claiming coverage under the policy.” Id. at 1056 (describing the reasoning

of Worcester Mut. Ins. Co. v. Marnell, 398 Mass. 240, 496 N.E.2d 158 (1986)).

The Fifth District agreed with the Massachusetts Supreme Court that this

interpretation “gave reasonable meaning to both the exclusionary clause and the

severability clause[,]” which it found preferable “to one which leaves a part useless

or inexplicable.” Id. at 1057. 4 Moreover, the Fifth District concluded that, to the




       4
          In reaching this conclusion, the Fifth District specifically rejected an alternative
construction of the interplay of the severability and exclusionary clauses that would treat the use
of the term “any insured” in an exclusionary clause as “express[ing] a contractual intent to create
joint obligations and to prohibit recovery by an innocent coinsured.” Id. at 1056 (describing the
holding of Chacon v. Am. Fam. Mut. Ins. Co., 788 P.2d 748 (Colo. 1990)).
                                                 7
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extent the severability and exclusionary provisions created an ambiguity, the policy

had to be construed strictly against the insurer as the drafter of the policy. Id.

       Noting that the policy at issue “contains an exclusion for the intentional acts

of ‘any insured’ and contains a severability clause creating a separate insurable

interest in each individual insured,” the Fifth District in Premier held that the “the

most plausible interpretation is that the exclusionary clause is to exclude coverage

for the separate insurable interest of that insured who intentionally causes the

injury.” Id.

       The reasoning and holding of Premier govern our interpretation of the

severability and exclusionary provisions of Evanston’s CGL policy in this case. 5

First, like the policy in Premier, Evanston’s policy provides coverage for several

insureds, including DBI and Messrs. Leon, Ramos, and Ruiz. Second, the

separation of insureds provision in the Evanston CGL policy explicitly provides

that the insurance applies “[a]s if each Named Insured were the only Named



       5
           In diversity cases, “the rule is that, absent a decision from the state supreme court on an
issue of state law, we are bound to follow decisions of the state’s intermediate appellate courts
unless there is some persuasive indication that the highest court of the state would decide the
issue differently.” McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002). Moreover, the
Florida Supreme Court has held that “[t]he decisions of the district courts of appeal represent the
law of Florida unless and until they are overruled by this Court. Thus, in the absence of
interdistrict conflict, district court decisions bind all Florida trial courts.” Galindo v. ARI Mut.
Ins. Co., 203 F.3d 771, 775 (11th Cir. 2000) (quoting Pardo v. State, 596 So. 2d 665, 666
(Fla.1992)) (internal quotation marks omitted). Here, neither the Florida Supreme Court nor
other Florida district courts of appeal have addressed the interplay of a severability clause with
the use of the term “any insured” in an exclusionary clause, so we follow Premier as the law of
Florida.
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Insured” and just as the severability of insurance clause did in Premier, it states

that it applies “[s]eparately to each insured.” Because we are applying Florida law,

we must interpret this language as requiring that each insured has separate

insurance coverage, Premier, 632 So. 2d at 1057, and therefore read all provisions

of the policy, including the employer’s liability exclusion, as if coverage is for only

DBI, or only Mr. Leon, or only Mr. Ramos, or only Mr. Ruiz.6 Third, when

applying this construction of the severability provision to the employer’s liability

exclusion in the Evanston CGL policy, we conclude that coverage is not precluded

for Messrs. Leon, Ramos, or Ruiz. The exclusion states that the insurance does not

apply to bodily injury to “[a]n ‘employee’ of any insured.” (Emphasis added).

Reading this provision as if Mr. Leon were the only insured, coverage would not

be precluded because Mr. Zambrana is not an employee of Mr. Leon. The same

construction is true for Mr. Ramos and for Mr. Ruiz. Moreover, we note that this

reading does not render the inclusion of the employer’s liability exclusion

superfluous because, as Ms. Pena concedes, the exclusion applies to DBI, who for

purposes of this exclusion is the employer of Mr. Zambrana.



       6
          We recognize that our circuit, when interpreting a contract governed by Georgia law,
explained that “unlike the phrase ‘the insured,’ the phrase ‘any insured’ unambiguously
expresses a contractual intent to create joint obligations and to prohibit recovery by an innocent
co-insured.” Sales v. State Farm Fire & Cas. Co., 849 F.2d 1383, 1385 (11th Cir. 1988). In this
case, however, we must apply Florida law, which, in Premier, holds to the contrary that the term
“any insured,” when used in a severability of insureds provision, creates separate insurable
interests in each insured.
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      Construing the separation of insureds provision and the use of the term “any

insured” in the employer’s liability exclusion as we have is consistent with the

Fifth District’s treatment of the two similar provisions at issue in Premier. The

policy in Premier “contains an exclusion for the intentional acts of ‘any insured,’”

meaning that coverage was excluded only “for the separate insurable interest of

that insured who intentionally causes the injury.” 632 So. 2d at 1057. Likewise

here, Evanston’s CGL policy contains an exclusion for bodily injury to “an

employee of any insured,” meaning that coverage is excluded only “for the

separate insurable interest of that insured” who is the employer of the individual

who suffered the injury. Essentially, the exclusion’s use of the term “any insured”

when read in conjunction with the severability clause creates a class of insureds

who are excluded from coverage, i.e., employers of the injured claimant.

Accordingly, as to other insureds who are not in the class of excludable insureds,

but against whom a claim could be asserted, i.e., non-employers of the injured

claimant, coverage is not precluded.

      Premier involved an exclusion for intentional torts in a homeowner’s policy,

rather than an employer’s liability exclusion in a CGL policy. But that does not

alter our analysis.

      First, the reasoning in Premier was not dependent on the type of insurance

policy but instead was based on the meaning of the language in the severability

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clause and its effect on the use of the term “any insured” in the exclusion.

Significantly, the Fifth District in Premier concluded that the severability clause, in

and of itself, created a separate insurable interest in each individual insured under

the policy, which when applied to the policy’s use of the term “any insured” means

that each insured must be treated independently from other insureds. This

principle is applicable regardless of the type of insurance policy at issue.

       Second, another Florida appellate court has applied a severability of

insurance clause to an employee exclusion in an automobile liability policy and

concluded that “[t]he exclusion as to employees of the insured is thus limited and

confined to the employees of the employer against whom the claim is asserted.”

Shelby Mut. Ins. Co. v. Schuitema, 183 So. 2d 571, 574 (Fla. 4th DCA 1966),

approved 193 So. 2d 435 (Fla. 1967).7 Like the Fifth District in Premier, the

Fourth District in Schuitema recognized that “the principle that the severability of

interests clause must be construed as intended to treat each insured independently

from the other insured” must be applied to other pertinent provisions of the policy.


       7
          Although the policy at issue in Schuitema used the term “the insured” as contrasted with
Premier’s use of the term “any insured,” both the Fifth District in Premier and the Fourth
District in Schuitema treated the terms as being used severally as opposed to collectively or
jointly. 183 So. 2d at 573-74. In Premier the term “any insured” was treated as being used
severally based on the Fifth District’s interpretation of the severability of interests clause’s effect
on that term where it was used elsewhere in the policy, 632 So. 2d at 1057, whereas in
Schuitema, the term “the insured” was defined explicitly in the severability of interests clause as
being used “severally,” 183 So. 2d at 572. Either way, in Florida the term “any insured” when
used in an exclusionary provision of a policy containing a severability of interests provision is
treated no differently from the meaning of the term “the insured” in Schuitema.
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Id. Specifically, when applying this principle to the employee bodily injury

exclusion, the court in Schuitema held that “where the claimant is not the employee

of the additional insured against whom the claim is made, then there is coverage.”

Id.

      Evanston argues that coverage for Messrs. Leon, Ramos, and Ruiz is

excluded based on the additional language in the employer’s liability exclusion,

which provides (emphasis added), “[t]his exclusion applies: (1) [w]hether any

insured may be liable as an employer or in any other capacity.” We are not

persuaded. As we have explained, the preliminary language of the exclusion in

this policy—“[a]n employee of any insured”—read in conjunction with the

separation of insureds provision, requires that the bodily injury claim be made by

an employee of the insured employer who is claiming coverage. Only those

insureds who are employers of the injured claimant are excluded from coverage.

To read the subsequent language “in any other capacity” as including all insureds,

even those who are not the employer of the claimant and hence, not precluded from

coverage under the first part of this provision, would render not only the separation

of insureds provision but also the first part of the exclusion meaningless.

Moreover, the language “in any other capacity” is not superfluous even when

limited to an insured who is an employer of the claimant, because this language

can be read to exclude coverage for an insured employer who may be sued in a role

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other than employer, such as an owner of a vehicle, as a general contractor, or as a

state actor.

       Evanston’s reliance on Mercury Ins. Co. of Fla. v. Charlie’s Tree Serv., Inc.,

29 So. 3d 375 (Fla. 4th DCA 2010), does not sway us. There was no dispute that

the insured at issue in that case was the claimant’s employer, and thus the

exclusion applied without reliance on the “in any other capacity” language. Aetna

Comm. Ins. Co. v. Am. Sign Co., 687 So. 2d 834, 836 (Fla. 2d DCA 1996), likewise

is inapplicable as it is silent as to whether the policy at issue contained a

severability of interests clause and thus contains no analysis of what effect such a

clause would have had on the interpretation of the exclusionary clause.

       We also reject Evanston’s alternative argument that coverage for Messrs.

Leon, Ramos, and Ruiz is excluded under the co-employee provision contained in

“Section II – Who Is An Insured” of the CGL policy. This provision provides that

DBI’s “employees,” other than its executive officers, are insureds but that they are

not covered for bodily injury to other co-employees. Evanston, however, has not

shown at summary judgment that Mr. Zambrana was an “employee” of DBI for

purposes of this section of the policy, which defines “employee” as follows:

“‘Employee’” includes a ‘leased worker.’ ‘Employee’ does not include a

‘temporary worker.’” Although it is not disputed that Mr. Zambrana meets the

definition of “employee” for purposes of the employer’s liability exclusion, that

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provision of the CGL policy replaces the meaning of “employee” from the

Definitions Section with a separate and more expansive definition that is applicable

only to the employer’s liability exclusion. There is nothing in the record to support

Evanston’s argument that Mr. Zambrana was an “employee” of DBI as that term is

defined for purposes of the co-employee exclusion contained in Section II – Who

Is An Insured.

                                       III. Conclusion

      Based on precedent from Florida’s appellate courts, we conclude that the

employer liability exclusion in Evanston’s CGL policy does not preclude coverage

for Ms. Pena’s claims against Messrs. Leon, Ramos, and Ruiz, as none of these

insured individuals were Mr. Zambrana’s employer.

      REVERSED AND REMANDED. 8




      8
          Ms. Pena’s pending motion to take judicial notice is hereby denied as moot.
                                                14
