               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT

ALICEA ENTERPRISES, INC., a          )
Florida corporation, now converted to)
Alicia Enterprises, LLC, d/b/a       )
SUNLAKE PHARMACY and also            )
d/b/a PHYSICIAN SPECIALTY            )
COMPOUNDING, LLC; PHYSICIAN          )
SPECIALTY COMPOUNDING, LLC,          )
a Florida Limited Liability Company, )
d/b/a SUNLAKE PHARMACY;              )
HUY BA LE; and INGRID MARY           )
BENDECK,                             )
                                     )
         Appellants/Cross-Appellees, )
                                     )
v.                                   )                Case No. 2D16-5261
                                     )
NATIONWIDE INSURANCE COMPANY         )
OF AMERICA, INC., JOSEPH STAHEL,     )
and REMEE JO LEE,                    )
                                     )
         Appellees/Cross-Appellants. )
___________________________________)

Opinion filed August 1, 2018.

Appeal pursuant to Fla. R. App. P.
9.030(b)(1)(A) from the Circuit Court for
Hillsborough County; Elizabeth G. Rice,
Judge.

Nataliia G. Artemova and Daniel G. Musca
o f Lexium PLLC f/k/a Tampa Law Source,
P.A., Tampa, for Appellants/Cross-
Appellees.

Hinda Klein, of Conroy Simberg,
Hollywood, for Appellee/Cross-Appellant,
Nationwide Insurance Company
No appearance for remaining Appellees/
Cross-Appellants.



BADALAMENTI, Judge.

                  Nationwide Insurance Company of America1 issued a general liability

insurance policy to Alicea Enterprises, Inc., which owns and operates Sunlake

Pharmacy.2 In an underlying lawsuit, Remee Jo Lee alleges, among other things,

claims against the Pharmacy and its employees for negligent acts causing her injuries.

The facts giving rise to the underlying action stem from the Pharmacy's alleged part in

Remee Jo Lee's miscarriage that was caused by her then-boyfriend, John Andrew

Weldon (Andrew), duping her into taking an abortifacient drug she believed simply to be

an antibiotic.3




                  1Joseph
                       Stahel, a pharmacy technician employed by Sunlake Pharmacy
and a defendant in the underlying action, and Remee Jo Lee, the plaintiff in the
underlying action, are also parties to this appeal. We will refer to these appellees
collectively as "Nationwide."
                  2Appellants
                        Alicea Enterprises, Inc. and Physician Compounding, LLC
operate Sunlake Pharmacy through a joint venture. Huy Ba Le and Ingrid Mary are
pharmacists employed by Sunlake Pharmacy. Collectively, we will refer to the
appellants as "the Pharmacy."
                  3Ms.
                     Lee alleged that after she learned she was pregnant, she shared the
news with the child's father, Andrew. While pregnant, she was prescribed an antibiotic
to treat a bacterial infection. Andrew acquired an incomplete prescription label from the
Pharmacy and completed the label to display that antibiotic's name. Unbeknownst to
Ms. Lee, she instead took Cytotec, which she alleged Andrew placed in the pill bottle
she thought contained the antibiotic. Lee's ingestion of the Cytotec medication caused
her to miscarry. It is unclear whether the Pharmacy provided the incomplete
prescription label by itself or affixed to an empty prescription bottle.


                                             -2-
              Nationwide filed a complaint for declaratory relief, requesting a decree

from the trial court that it neither had a duty to defend nor a duty to indemnify the

Pharmacy in the underlying lawsuit. Less than four months after it filed for this

declaratory relief, Nationwide filed a motion for summary judgment, asserting that the

policy it issued to the Pharmacy expressly excluded coverage for "professional

services." Nationwide contended that "100%" of Ms. Lee's allegations in the underlying

lawsuit are excluded from coverage because they arose out of the professional

"[s]ervice, treatment, advice or instruction in the practice of pharmacy."

              The trial court denied Nationwide's motion for summary judgment as to its

duty to defend the Pharmacy in Ms. Lee's underlying lawsuit. It reasoned that Ms. Lee's

underlying complaint "contains allegations that potentially could be deemed as

unrelated to professional services and potentially could bring the Tort action at this time

within the coverage provided by the Insurance Policy." The trial court, however, went

on to grant Nationwide's motion for summary judgment on its duty to indemnify the

Pharmacy from any damages awarded to Ms. Lee in her underlying lawsuit. The trial

court reasoned that "there could never be a set of circumstances where there would be

a duty to indemnify as a matter of law." The Pharmacy appeals the grant of summary

judgment to Nationwide on the duty to indemnify, and Nationwide cross-appeals the

denial of its motion for summary judgment on the duty to defend.

              After de novo review and the benefit of oral argument, we affirm the trial

court's denial of Nationwide's motion for summary judgment on the duty to defend the

Pharmacy in the underlying lawsuit. We are in lockstep with the trial court's reasoning

that Ms. Lee's allegations could potentially "be deemed as unrelated to professional




                                            -3-
services and potentially could bring the Tort action at this time within the coverage

provided by the Insurance Policy." Accordingly, because Ms. Lee's underlying

complaint alleged facts that fairly and potentially bring the suit within the policy's

coverage, we affirm the trial court's denial of Nationwide's motion for summary judgment

on the duty to defend. See Jones v. Fla. Ins. Guar. Ass'n, 908 So. 2d 435, 442–43 (Fla.

2005) ("It is well settled that an insurer's duty to defend its insured against a legal action

arises when the complaint alleges facts that fairly and potentially bring the suit within

policy coverage." (citing State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So. 2d

1072, 1077 n.3 (Fla. 1998))); see also Fla. R. Civ. P. 1.510(c); LoBello v. State Farm

Fla. Ins. Co., 152 So. 3d 595, 598 (Fla. 2d DCA 2014) ("If the record reflects the

existence of any genuine issue of material fact or the possibility of any issue, or if the

record raises even the slightest doubt that an issue might exist, summary judgment is

improper." (quoting Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991))).

              We disagree with the trial court's decision to grant summary judgment to

Nationwide on its duty to indemnify the Pharmacy from any damages attributable to it in

Ms. Lee's underlying lawsuit. An insurer's duty to indemnify is "determined by analyzing

the policy coverage in light of the actual facts in the underlying case." Diamond State

Ins. Co. v. Boys' Home Ass'n, 172 F. Supp. 3d 1326, 1342 (M.D. Fla. 2016) (quoting

J.B.D. Constr., Inc. v. Mid–Continent Cas. Co., 571 Fed. App'x. 918, 927 (11th Cir.

2014)). Therefore, in deciding whether an insurer has a duty to indemnify, the trial court

must look beyond the allegations in the underlying complaint. "The duty to indemnify is

thus often dependent upon further factual development through discovery or at trial."

Khatib v. Old Dominion Ins. Co., 153 So. 3d 943, 947–48 (Fla. 1st DCA 2014)




                                             -4-
(reversing for further proceedings on the insurer's duty to indemnify because a ruling on

that duty was premature without further factual development); Pa. Lumbermens Mut.

Ins. Co. v. Ind. Lumbermens Mut. Ins. Co., 43 So. 3d 182, 188 (Fla. 4th DCA 2010)

("While the duty to defend is broad and based on the allegations in the complaint, the

duty to indemnify is determined by the facts adduced at trial or during discovery.").

              Whether a professional service has, or has not, been rendered is a fact-

intensive analysis. See, e.g., Aerothrust Corp. v. Granada Ins. Co., 904 So. 2d 470,

472 (Fla. 3d DCA 2005) (explaining that "the services which are meant to be excluded

as professional are those which require specialized training" and reciting the facts it

relied upon to come to the conclusion that the professional services policy exclusion did

not apply). Thus, when deciding whether an act arises out of the rendering of or failure

to render a professional service, the court must focus on the act itself and not the

character of the individual performing the act. See Estate of Tinervin v. Nationwide Mut.

Ins. Co., 23 So. 3d 1232, 1237 (Fla. 4th DCA 2009) (citing Lindheimer v. St. Paul Fire &

Marine Ins. Co., 643 So. 2d 636, 638 (Fla. 3d DCA 1994)). The act from which the

claim arises must be related to a professional service that requires the use of

professional judgment or skill. Cf. Nat'l Deaf Acad., LLC v. Townes, 242 So. 3d 303,

305 (Fla. 2018) (concluding that a "claim arises out of the 'rendering of, or the failure to

render, medical care or services,' " when the act from which the claim arises is "directly

related to medical care or services, which require the use of professional judgment or

skill").

              Thus, at the summary judgment stage, in circumstances where there has

not been thorough discovery to flesh out the relevant facts, the trial court is in a poor




                                            -5-
position to determine whether the facts alleged in the complaint are true or the legal

theories unsound so as to make a decision on whether an insurer has a duty to

indemnify under the policy. See Khatib, 153 So. 3d at 947–48 (reversing the trial court's

determination that an insurer had no duty to indemnify its insured based on the

allegations against the insured in the complaint because such a determination was

"premature" prior to trial); see also Diamond State, 172 F. Supp. 3d at 1342

(acknowledging that "it may be appropriate in some instances to consider the duty to

indemnify before resolution of the underlying case" but refusing to do so where too

many factual issues remained regarding the applicability of an exclusion in the insurer's

policy).

              Here, there appears to have been little discovery conducted. Only one

deposition was before the trial court for its review—the deposition of a pharmacy

technician, Joseph Stahel. Notably absent was the deposition testimony of Andrew, the

individual who Ms. Lee alleged to have been the mastermind in a scheme leading to her

alleged injuries. Also absent was any testimony from the pharmacists themselves.

Furthermore, there was no bench trial on Nationwide's complaint for declaratory relief to

present evidence as to whether the purported acts of the Pharmacy and its employees

here fell within the professional negligence exclusion of the policy. Nor has there been

a trial on Ms. Lee's underlying lawsuit.

              We are therefore left with Mr. Stahel's deposition testimony. We know

from his deposition that he provided Andrew an incomplete prescription label. This

incomplete label did not contain the name of any drug. Mr. Stahel also testified that Ms.

Lee was not a customer of the pharmacy. We also know that Mr. Stahel had never




                                           -6-
given out an incomplete prescription label before and did not recall whether he had

asked the on-duty pharmacist for permission to give this incomplete prescription label to

Andrew. Lastly, he testified that, to his knowledge, the Pharmacy did not dispense a

drug with that incomplete label.

              Here, we conclude that Nationwide did not meet its heavy summary

judgment burden. See Fla. R. Civ. P. 1.510(c); LoBello, 152 So. 3d at 598 ("If the

record reflects the existence of any genuine issue of material fact or the possibility of

any issue, or if the record raises even the slightest doubt that an issue might exist,

summary judgment is improper." (quoting Holland, 583 So. 2d at 789)). It is unclear on

this scant record whether the acts of the Pharmacy or its employees alleged in Ms.

Lee's underlying complaint and further expounded upon by the deposition of the

pharmacy technician's version of events fell within the exclusionary provision of the

policy, which we must strictly construe. See Tinervin, 23 So. 3d at 1236 ("Exclusionary

clauses are strictly construed."). That is, a genuine issue of material fact exists as to

whether the acts of the Pharmacy's employees arose out of the professional "[s]ervice,

treatment, advice or instruction in the practice of pharmacy."

              Because the record reflects the existence of genuine issues of material

fact as to whether the Pharmacy or its employees were ordinarily or professionally

negligent, we reverse and remand for further proceedings on Nationwide's duty to

indemnify. See Khatib, 153 So. 3d at 947–48 (reversing for further proceedings on the

insurer's duty to indemnify because a ruling on the duty was premature without further

factual development); Diamond State, 172 F. Supp. 3d at 1342 (denying summary

judgment on duty to indemnify "as premature"). We express no opinion as to whether




                                            -7-
evidence adduced upon our remand may bring the conduct within the policy's

professional services exclusion. We also do not hold that summary judgment is always

improper on whether an insurer has a duty to indemnify. See generally Higgins v. State

Farm Fire & Cas. Co., 894 So. 2d 5, 16–17 (Fla. 2004) (explaining some of the factors

the trial judge may rely upon when exercising its "discretion as to whether the insurance

indemnity coverage issue should proceed ahead of the underlying tort action" and

concluding that "there is too infinite a variety of circumstances for there to be a rule

applicable in all cases"); see also State Farm Fla. Ins. Co. v. Campbell, 998 So. 2d

1151, 1155 (Fla. 5th DCA 2008) (concluding on appeal from a final summary judgment

in a declaratory action proceeding that insurer had no duty to indemnify its insured). We

simply hold that based on the very limited record before us, genuine issues of material

fact remain as to whether the Pharmacy or the Pharmacy's employees' alleged acts fell

within the professional services exclusion of the policy. We affirm the trial court's denial

of Nationwide's motion for summary judgment on its duty to defend the underlying

lawsuit.

              Affirmed in part; reversed in part; remanded.



LaROSE, C.J., and NORTHCUTT, J., concur.




                                            -8-
