           Case: 18-14841   Date Filed: 09/06/2019   Page: 1 of 9


                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-14841
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:17-cv-61589-KMW



ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY,

                                              Plaintiff - Appellee,

versus

UNITED CONSTRUCTION ENGINEERING, INC.,

                                              Defendant,

CARLOS MARROQUIN LOPEZ,

                                              Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (September 6, 2019)

Before MARTIN, BRANCH, and DUBINA, Circuit Judges.
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PER CURIAM:

      This declaratory judgment action presents a straightforward question of

contract interpretation: Did the district court err in finding that an insurance policy

did not cover the injuries sustained by a worker in the course of his job, and

therefore, he was not owed compensation by the insurer? After review, we

conclude that compensation for the worker’s injuries falls under the Florida

workers’ compensation scheme and not the insurance policy; hence, we affirm.

                                 I. BACKGROUND

      Plaintiff/Appellee Endurance American Specialty Insurance Company

(“Endurance”) issued an insurance policy to United Construction Engineering, Inc.

(“UCE”) for general commercial liability. (R. Doc. 1-2). However, the policy

specifically excludes injuries that would be covered by a workers’ compensation

claim (henceforth referenced as “workers’ compensation exclusion”) (R. Doc. 1-2

at 14). It also excludes bodily injuries of an employee of the insured when the

employee is injured in the course of his employment with the insured or is

otherwise performing the insured’s normal duties (“employee exclusion”). Id.

      AC1 Supply executed a contract with UCE for UCE to perform a roof repair

on a Miami warehouse. UCE hired a subtractor, Enzo Enrique Moreno Castellanos

(“subcontractor”), who in turn hired defendant Carlos Marroquin Lopez (“Lopez”)


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to perform the work. Lopez estimated the repair would take at least a week and

accepted a rate of $120 per day from the subcontractor. On the second day of the

project, Lopez slipped and fell into a pool of hot tar on the job site. Neither UCE

nor the subcontractor was carrying workers’ compensation insurance at that time.

      After Lopez sued UCE in state court for his injuries, Endurance began

defending UCE under reservation of rights. Endurance then filed this declaratory

judgment action in federal court, seeking a declaration that it had no duty to defend

or indemnify UCE in the state suit, and that Lopez’s suit was barred under the

policy exclusions for injuries that should be covered by workers’ compensation as

well as injuries that were incurred by the insured’s employees in the course of their

employment.

      The district court, over Lopez’s objections, adopted a magistrate judge’s

report and recommendation without further comment. (R. Doc. 47.) The district

court found that under Florida law, workers’ compensation was “the exclusive

remedy available to an injured employee for the negligence of his employer” under

these circumstances, and that Lopez was an employee under the terms of the

Florida workers’ compensation statute. (R. Doc. 43 at 5). Therefore, either the

contractor or the subcontractor was liable for the payment of the compensation

under the statutory scheme. Under Florida law, if the subcontractor failed to carry


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workers’ compensation insurance, then the liability shifted to UCE. The district

court also rejected Lopez’s argument that he was a “casual worker” under Florida

law who would not be a covered employee under the Florida statute. Additionally,

the district court found that the policy’s roofing operations endorsement (R. Doc.

1-2 at 52) had no bearing on the scope of the policy’s coverage. Finally, the

district court accepted Endurance’s argument that coverage was further barred

because the policy, in addition to excluding workers’ compensation obligations,

also excluded bodily injuries arising out of the course of employment by the

insured because under Florida law, Lopez was an employee, policy language to the

contrary notwithstanding. (R. Doc. 1-2 at 14).

      Lopez then perfected this appeal.

                                 II. DISCUSSION

      A district court’s grant of summary judgment is reviewed de novo. Weeks v.

Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002).

      A. Lopez’s status as a statutory employee

      Lopez’s primary argument is that he was, in fact, a temporary employee

under the terms of the policy and that the district court erred when interpreting

Florida law that superseded the policy definition. Lopez argues that the varying

interpretations of “employee” in the policy create an ambiguity that should be


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resolved against the insurer or the policy drafter, and as such, the employee

exclusion does not apply. An ambiguity arises, Lopez insists, because the district

court’s interpretation of “employee” in the policy effectively rewrites the policy to

read “statutory employee.”

      This distinction carries legal significance because if Lopez is not an

“employee” under the terms of the policy, then the employee exclusion in the

policy is inapplicable. However, if Lopez is an “employee” for policy purposes by

operation of law, then the exclusion applies, and his claim is barred.

      We see no need to engage with Lopez’s entire argument because it fails to

address and overcome the deficiencies the district court noted with the workers’

compensation exclusion that independently causes Lopez’s claim to fail.

Assuming, arguendo, that the district court erred in applying the statutory

definition of employee to the insurance policy, that error would have no effect on

the analysis of the workers’ compensation exclusion, which operates as an

independent basis for Endurance to deny the claim. As the district court noted, the

applicability of the workers’ compensation exclusion hinges on whether a worker

is covered by Florida’s worker compensation laws. Fla. Stat. §§ 440.10 (2019). In

this case, Lopez is covered. See Fla. Stat. 440.02(15)(a) (2015) (defining

“employee” for workers’ compensation eligibility as “any person who receives


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remuneration from an employer for the performance of any work or service.”).

Lopez is unable to explain how the clear and unambiguous language of the

workers’ compensation exclusion means anything other than what it says: that the

insured’s obligations arising out of a workers’ compensation law are not covered

under the policy. This exclusion does not hinge on any distinctions between

statutory employees, temporary workers, or casual workers. Lopez’s only effort at

challenging the workers’ compensation exclusion is arguing that factual

ambiguities – which cannot be resolved on summary judgment – preclude a finding

that UCE would have been financially obligated to Lopez under workers’

compensation.

      More specifically, Lopez argues that the district court erred in determining

that a contractor/subcontractor relationship existed as a matter of law between the

subcontractor and Lopez. Lopez appears to argue that UCE may have not owed

him an obligation under Florida workers’ compensation statute, which would mean

that the workers’ compensation exclusion would be inapplicable to his claim.

(Brief for Appellant at 29).

      In advancing this argument, Lopez takes express disagreement with the

district court’s findings in footnote 2 of its order. (R. Doc. 43 at 2, n. 2). There,

the district court addressed the argument that UCE lacked evidence of the


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existence of a subcontractor relationship. It found that because the record showed

– conclusively – that UCE entered into a contract with the subcontractor, who then

hired Lopez to perform the work, that Lopez’s denials of such a relationship lacked

any record evidence and were due to be ignored for purposes of creating a dispute

that would preclude summary judgment.

      On appeal, Lopez presents no new evidence that would justify reversing

these findings. As the district court noted, mere denials, lacking any supporting

evidence, will not be enough to defeat a well-founded summary judgment motion.

Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact cannot be or is genuinely

disputed must support this assertion by citing to particular parts of materials in the

record.”). Lopez has not done this, so his argument fails.

      B. Applicability of the Roofing Operations Endorsement

      Lopez next argues that a separate endorsement to the policy entitled “roofing

operations” should operate to provide coverage since Lopez sustained his injury

while performing roofing operations. The district court rejected this argument

because it found that none of the language in the endorsement altered the

exclusions in the beginning of the policy that the district court viewed as being

dispositive to the case.




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      On appeal, Lopez does not advance any discernable new arguments

explaining where the district court erred. In fact, the roofing endorsement contains

no language regarding who will be covered under the policy. (R. Doc. 1-2 at 52–

53). Instead, it lists certain terms and conditions regarding how roofing operations

must be performed in order to receive insurance coverage. Only section (B)(4)

provides any clarification regarding the scope of coverage, stating that failure to

meet the terms of the endorsement will lead to “any resulting property damage to

any building or structure or its contents [not being] covered by this policy.” (Id.)

The last sentence of the endorsement reads, “All other terms and conditions of this

policy remain unchanged.” (Id.) Lopez fails to explain how or why the workers’

compensation exclusion or employee exclusion would somehow be altered by the

roofing operations endorsement, which is one of numerous endorsements and

exclusions attached to the policy covering a wide variety of circumstances.

Lopez’s proffered interpretation effectively uses the endorsement to override the

exclusions that operate as a bar to his claim. This interpretation is unsupported by

any text in the endorsement. Accordingly, we conclude that the district court

correctly declined to adopt his interpretation.

      C. Lopez’s status as a casual worker




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      Finally, Lopez takes exception to the district court’s determination that he

was not a “casual worker” under the Florida statute because his project was

estimated to take around a week and cost $840, which exceeded the statutory limits

of less than 10 working days and less than $500.

      Lopez argues the district court erred because he only earned $120 per day

and was injured on his second day on this job. This has no legal significance

because the statutory definition is based on what the employment terms are

anticipated to be, not on what comes to fruition. Fla. Stat. § 440.02(5). Lopez

complains that this system is murky given his practical status as a day laborer. Be

that as it may, he cites no statute or case law for the proposition that the district

court erred in applying the plain language of the statute in determining that the

anticipated value of the project exceeded the statutory limits for a casual employee.

      Because we conclude from the record that the district court did not err when

determining that Lopez’s claims were barred under the terms of the policy, we

affirm its grant of summary judgment in favor of Endurance.

      AFFIRMED.




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