                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                                                               FILED
                                                      U.S. COURT OF APPEALS
                             No. 11-15075               ELEVENTH CIRCUIT
                         Non-Argument Calendar              JUNE 26, 2012
                                                             JOHN LEY
                                                              CLERK
                D. C. Docket No. 8:10-cv-00027-EAK-TGW

HARCO NATIONAL INSURANCE COMPANY,

                                                Plaintiff-Appellant

FIRST LEASE, INC.,

                                                Consolidated Plaintiff-
                                                Appellant,

                                  versus

ZURICH AMERICAN INSURANCE COMPANY,

                                                Defendant-Appellee.



                Appeal from the United States District Court
                    for the Middle District of Florida


                              (June 26, 2012)

Before DUBINA, Chief Judge, JORDAN and FAY, Circuit Judges.

PER CURIAM:
      This is an appeal from the district court’s order granting summary judgment

in favor of Zurich American Insurance Company (“Zurich”), holding that Zurich

has no duty to defend or indemnify FirstLease, Inc. (“FirstLease”). We review de

novo a district court’s grant of summary judgment. Levinson v. Reliance Standard

Life Ins. Co., 245 F.3d 1321, 1325 (11th Cir. 2001). Summary judgment is

appropriate when “there is no genuine issue as to any material fact and the movant

is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(a). “A genuine

factual issue exists if the jury could return a verdict for the non-moving party.”

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007).

                                          I.

      Appellant FirstLease was sued in Hillsborough County Circuit Court by

Howard Bryant, a truck driver, for personal injuries resulting from an accident on

May 13, 2006, while operating a truck for Southeast Independent Delivery

Services, Inc. (SEIDS). Bryant performed delivery services for SEIDS and

entered into an independent truckman’s agreement (“ITA”) with SEIDS as an

independent contractor. Bryant entered into a rental agreement with FirstLease to

rent a truck, and his claim against FirstLease was based on negligent maintenance

of that truck. The rental agreement requires Bryant to maintain insurance to



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protect FirstLease, as owner of the rented vehicle, and himself, as operator of the

vehicle, from injuries to third persons. Bryant and SEIDS are insured by Zurich.

      Appellant Harco National Insurance Company (“Harco”), an insurer of

FirstLease, defended FirstLease pursuant to its insurance policy and settled the

case. FirstLease filed a third party claim against SEIDS for contractual indemnity.

SEIDS moved for entry of partial summary judgment, and the circuit court

determined that the indemnity clause of the rental agreement was unenforceable,

since FirstLease sought indemnity for claims arising from its own negligence.

      Harco and FirstLease filed a declaratory judgment action in the district court

to determine their rights against Zurich as SEIDS’s insurer. The parties filed

cross-motions for summary judgment and agreed that there were no material facts

in dispute. Harco and FirstLease argued that Bryant was an agent of SEIDS and

that the Zurich policy covered the rented truck and FirstLease as an additional

insured. The court found that Bryant and FirstLease were parties to the rental

agreement but that SEIDS was not a party. The court also found that the

underlying negligence suit did not involve a shift of liability to FirstLease. The

court noted that FirstLease could be an “insured” under the Zurich policy only as

“[a]nyone liable for the conduct of an ‘insured’ described above but only to the

extent of that liability.” [R. 49 at 38.] The court determined that FirstLease was

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not vicariously liable under the policy because Bryant was not a tortfeasor, and

thus the statutorily-permitted shift of liability coverage did not apply. Similarly,

the court found that Zurich had no duty to indemnify Harco for FirstLease’s

negligence to Bryant.

                                          II.

      The duty to defend is determined solely by reference to the claimant’s

complaint, Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5, 9–10 (Fla.

2004), whereas the duty to indemnify is determined by analyzing the facts of the

case, State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So. 2d 1072, 1077 n.3

(Fla. 1998). Harco and FirstLease argue that Zurich had a duty to defend and

indemnify FirstLease on the underlying action because Bryant was an agent of

SEIDS. Although the issue of agency is disputed, it is not a genuine issue of

material fact warranting reversal of summary judgment. The allegations in

Bryant’s complaint do not trigger Zurich’s duty to defend FirstLease because the

alleged injured party was Bryant, not a third party. As required by the rental

agreement, Bryant obtained liability coverage, through Zurich, “for injuries to the

property and person, including death, of Third Persons, resulting from the

ownership, use, operation, or maintenance of the Vehicle.” [Rental Agreement, R.




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23-7 (Exh. G).] Because Bryant, not a third party, was allegedly injured, and

FirstLease was the alleged tortfeasor, Zurich has no duty to defend.

      For the same reasons, Zurich has no duty to indemnify Harco for

FirstLease’s negligence to Bryant. Zurich’s duty to indemnify only covers liability

for bodily injury to third parties, and Bryant was a party to the ITA and rental

agreement, not a third party.

      Accordingly, for the aforementioned reasons, we affirm the district court’s

grant of summary judgment.

      AFFIRMED.




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