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Filing # 108852814 E-Filed 06/15/2020 12:05:46 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO: 2019-003916-CA-01
SECTION: CA27
JUDGE: Oscar Rodriguez-Fonts
John Hughes, III et al
Plaintiff(s)
vs.
Roman Flicker et al
Defendant(s)
____________________________/
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT ON DEFENDANT MID-CONTINENT CASUALTY COMPANY’S DUTY
TO DEFEND AND DENYING MID-CONTINENT CASUALTY COMPANY’S CROSS
MOTION FOR SUMMARY JUDGEMENT ON PLAINTIFF’S AMENDED COMPLAINT
THIS CAUSE came before the Court on Plaintiff’s Motion for Partial Summary
Judgment on Defendant Mid-Continent Casualty Company’s Duty to Defend (“Motion for
Partial Summary Judgment”) and Mid-Continent Casualty Company’s (“Defendant MCC”)
Cross Motion for Summary Judgment on Plaintiff’s Amended Complaint (“Cross Motion”)
(collectively “Motions”). The Court, having reviewed the Motions, responses and replies, case
law, having conducted a hearing on April 22, 2020, and being otherwise fully advised in the
premises, finds as follows:
FACTUAL AND PROCEDURAL BACKGROUND
In 2010 Manuel Perea (“Perea”) filed suit against Flicker Construction (“Flicker”) in an action
styled Manuel Perea v. Flicker Construction, Inc, Case No.: 10-58782-CA-01 (“Underlying
Lawsuit” or “Underlying Complaint”). The underlying matter proceeded to a jury trial and a
judgment was entered in favor of Perea.
Case No: 2019-003916-CA-01 Page 1 of 9
The Plaintiff in the present matter filed a Complaint, which was later amended, alleging
that Roman Flicker fraudulently transferred assets from Flicker Construction and breached
certain fiduciary duties. Plaintiff also alleges that Defendant MCC, breached its duty to defend
and indemnify Flicker Construction for the damages awarded to Perea in the Final Judgment of
the Underlying Lawsuit.
Plaintiff now moves this Court to grant partial summary judgement on the issue of
whether Defendant MCC had a duty to defend Flicker in the Underlying Lawsuit. Conversely,
Defendant MCC moves this Court for entry of an order granting summary judgment finding the
Defendant MCC owed no duty to defend or indemnify in the Underlying Lawsuit.
ANALYSIS
Under Florida law, an insurer’s duty to defend is separate and distinct from its duty to
indemnify, and it is more extensive. First Am. Title Ins. Co. v. Nat’l Union Fire Ins. Co. of
Pittsburgh, Pa., 695 So. 2d 475, 476 (Fla. 3d DCA 1997) (citing Klaesen Bros., Inc. v.
Harbor Ins. Co., 410 So. 2d 611, 612-13 (Fla. 4th DCA 1982)). The insurance provider’s duty
to defend depends solely on the facts and legal theories alleged in the pleadings and claims
against the insured.” James River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270,
1275 (11th Cir. 2008) (quoting Nova Casualty Co. v. Waserstein, 424 F.Supp.2d 1325, 1332
(S.D.Fla.2006)). “A liability insurer’s obligation, with respect to its duty to defend, is not
determined by the insured’s actual liability but rather by whether the alleged basis of the action
against the insurer falls within the policy’s coverage.” XL Specialty Ins. Co. v. Skystream,
Inc., 943 So. 2d 848, 849 (Fla. 3d DCA 2006).
Accordingly, a determination regarding the duty to defend requires the Court to examine
the allegations in the complaint and the insurance policy. See Lime Tree Vill. Cmty. Club
Ass’n Inc. v. State Farm Gen. Ins. Co., 980 F.2d 1402, 1405 (11th Cir. 1993). An insurer is
Case No: 2019-003916-CA-01 Page 2 of 9
obligated to defend a claim even if it is uncertain whether coverage exists under the policy, as
long as the pleadings bring the case fairly and potentially within the scope of coverage. See
First Am. Title Ins. Co., 695 So. 2d at 476; Keen v. Florida Sheriffs’ Self-Ins., 962 So. 2d
1021, 1024 (Fla. 4th DCA 2007). “If the allegations of the complaint leave any doubt as to the
duty to defend, the question must be resolved in favor of the insured.” Lime Tree Vill. Cmty.
Club Ass’n, Inc., 980 F.2d at 1405. Insurance contracts are construed in accordance with the
plain language of their provisions. Auto–Owners Ins. Co. v. Anderson, 756 So. 2d 29, 33-34
(Fla. 2000). Still, if the pertinent policy language is susceptible to multiple reasonable
interpretations then the policy is ambiguous and should be interpreted liberally in favor of the
insured and strictly against the insurer. E. Florida Hauling, Inc. v. Lexington Ins. Co., 913
So. 2d 673, 676 (Fla. 3d DCA 2005).
In the present case, the Underlying Complaint alleges in pertinent part:
● Flicker was “a Florida corporation engaged in the business of construction
contracting providing construction contracting services to members of the general
public.”
● In September 2010, “Perea was either directly or indirectly retained by Flicker to
perform bathroom tile installation at Kosta Seafood & More[.]”
● Flicker “was in control of the construction being performed within the above
described premises, which was being performed at the direction and under the
supervisions of Flicker.”
● Flicker, “by and through its employees, agents, apparent agents and/or ostensible
agents, negligently caused Perea to suffer personal injuries by and through” its
failure to properly secure the spiral staircase; failure to inspect or maintain the
construction site and premises; failure to warn Perea; and failure to provide
reasonably safe premises for Perea.
Case No: 2019-003916-CA-01 Page 3 of 9
● And as a direct and proximate result of Flicker’s negligence, Perea suffered injuries.
Defendant MCC issued commercial general liability policy number 04-GL-000784399 to
Flicker which was effective from March 12, 2010 through March 12, 2011. The pertinent policy
provision provides that MCC will have the right and duty to defend Flicker against any suit
seeking damages as a result of bodily injury or property damage, unless it is bodily injury or
property damage to which that policy did not apply.
Based on the Underlying Complaint and the insurance policy, the allegations fairly and
potentially bring the suit within policy coverage for purposes of the duty to defend. However,
although an insurer must defend the insured when the complaint fairly brings the case within the
scope of coverage, if the complaint shows the applicability of a policy exclusion then the insurer
has no duty to defend. State Farm Fire & Cas. Co. v. Tippett, 864 So. 2d 31, 35 (Fla. 4th
DCA 2003) (citing Reliance Ins. Co. v. Royal Motorcar Corp., 534 So. 2d 922, 923 (Fla. 4th
DCA 1988)). See also Keen, 962 So. 2d at 1024. Exclusionary clauses are strictly construed.
Estate of Tinervin v. Nationwide Mut. Ins. Co., 23 So. 3d 1232, 1236–37 (Fla. 4th DCA
2009). “However, exclusionary provisions which are ambiguous or otherwise susceptible to
more than one meaning must be construed in favor of the insured, since it is the insurer who
usually drafts the policy.” Mid-Continent Cas. Co. v. Royal Crane, LLC, 169 So. 3d 174, 182
(Fla. 4th DCA 2015) (quoting State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245,
1248 (Fla.1986)) (internal quotation marks omitted).
Defendant MCC’s liability policy contains a “Worker’s Compensation Exclusion,” which
eliminates coverage for “any obligation of the insured under any workers’ compensation,
disability benefits or unemployment compensation or any similar law.” This exclusion bars
coverage of claims arising from bodily injuries for which the insured is required to pay benefits
under workers’ compensation law. Morales v. Zenith Ins. Co., 152 So. 3d 557, 561 (Fla.
2014). As both parties suggest, a Worker’s Compensation Exclusion has been held to apply
Case No: 2019-003916-CA-01 Page 4 of 9
whenever the injured claimant is eligible for workers’ compensation benefits under Chapter 440
of the Florida Statutes. Id. at 563. To determine whether the Workers’ Compensation Exclusion
eliminated MCC’s duty to defend, this Court must decide whether the Underlying Complaint
demonstrates that Flicker was required to provide workers’ compensation benefits to Perea for
his bodily injury claim. See Advanced Sys., Inc. v. Gotham Ins. Co., 272 So. 3d 523, 527
(Fla. 3d DCA 2019) (“Because [insurer] relies on an exclusion to deny coverage, it has the
burden of demonstrating that the allegations of the complaint are cast solely and entirely within
the policy exclusion and are subject to no other reasonable interpretation.” (quoting Castillo v.
State Farm Florida Ins. Co., 971 So. 2d 820, 824 (Fla. 3d DCA 2007) (internal quotation
marks removed)). This Court cannot do so.
Chapter 440 of the Florida Statutes provides several exclusions to worker’s compensation
coverage and benefits. See § 440.02, Fla. Stat. (2015) (Employee means any person who
receives remuneration from an employer, including all persons who are being paid by a
construction contractor as a subcontractor, unless the subcontractor has validly elected an
exemption as permitted by this chapter, or has otherwise secured the payment of compensation
coverage as a subcontractor, further, the term Employee does not include a volunteer). The
Underlying Complaint is vague as to both Perea and Flicker’s relationship and Flicker’s role in
the construction project. The Underlying Complaint does not refer to Perea as an employee nor
does it refer to Flicker as an employer, a subcontractor or a general contractor. The Underlying
Complaint makes no reference to Workers’ Compensation coverage or exceptions thereto. It is
not unreasonable to infer, as Defendant MCC urges this Court to do, that Flicker was the general
contractor because it is the only defendant in the underlying action, was alleged to be in control
of the premises and breached duties to Perea. It is also not unreasonable to infer that Underlying
Complaint sets forth an employer-employee relationship. However, even making these
assumptions, the Court does not find that the allegations in the Underlying Complaint are cast
solely and entirely within the policy exclusion. These allegations are subject to other reasonable
Case No: 2019-003916-CA-01 Page 5 of 9
interpretations, such as the exceptions to coverage set forth in the statute. Therefore, this Court
does not find that the Worker’s Compensation Exclusion clearly applies, subject to no other
reasonable interpretation.
The second relevant exclusion in Defendant MCC’s policy is the “Employer’s Liability
Exclusion.” This exclusion eliminates coverage for an employee who was injured in the course
of their employment by the insured or performance of duties related to the conduct of the
insured’s business. In the policy, “Employee” is defined to include a “leased worker,” but not a
“temporary worker.” Thus, Defendant MCC would owe a duty to defend if the injured claimant
was a “temporary worker” rather than an “employee” as defined in the policy. See Nat’l
Indem. Co. of S. v. Landscape Mgmt. Co., Inc., 963 So. 2d 361, 363 (Fla. 4th DCA 2007).
Again, to determine whether the Employer’s Liability Exclusion eliminated Defendant MCC’s
duty to defend, this Court must decide whether the Underlying Complaint shows that Perea was
an employee of Flicker, as defined by the policy. See Advanced Sys., Inc., 272 So. 3d at 527.
Again, this Court cannot do so. The Underlying Complaint fails to set forth enough information
to show that Perea was an employee of Flicker as defined in the policy and not a temporary
worker. The Underlying Complaint is vague as to both Perea and Flicker’s relationship. The
Underlying Complaint does not refer to Perea as an employee, it states that he was either directly
or indirectly retained. The Underlying Complaint does not allege how Perea was “retained” or in
what capacity, only that it was to perform bathroom tile installation. Retain is defined as “[t]o
hire” or “to engage for the provision of services (as by a lawyer, an accountant, an employee,
etc.).” RETAIN, Black’s Law Dictionary (11th ed. 2019). The broadness of the term “retain”
along with the broadness of “directly or indirectly” lead this Court to conclude that these
allegations are not solely and entirely within the policy exclusion, subject to no other reasonable
interpretations. Particularly, there is nothing in the Underlying Complaint that determines
whether Perea was a temporary worker as defined by the policy.
Case No: 2019-003916-CA-01 Page 6 of 9
Therefore, based on the allegations in the Underlying Complaint reviewed in unison with
the insurance policy, this Court cannot conclude Defendant MCC had no duty to defend Flicker
based on the pertinent exclusions.
The Plaintiff and Defendant MCC urge this Court to consider other record evidence in
order to rule on the Motions. “The duty to defend is not determined by the complaint’s wording
alone.” Keen, 962 So. 2d at 1024 (citing Tippett, 864 So.2d at 35 (Fla. 4th DCA 2003)).
Indeed, a court may consider extrinsic facts “if those facts are undisputed, and, had they been
pled in the complaint, they clearly would have placed the claims outside the scope of coverage.”
Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1323-24 (11th Cir. 2014). However, in
Florida, such circumstances are found only in exceptional cases “where 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.” Id. (quoting First Specialty Ins. Corp. v. 633 Partners,
Ltd., 300 Fed.Appx. 777, 786 (11th Cir.2008)). That is not the case here. The extensive
evidence does not make it “manifestly obvious” that the actual facts place the claim outside the
scope of coverage and it would be improper for this Court to weigh the evidence. See
Advanced Sys., Inc., 272 So. 3d at 528 (the record before the court “contains no objective fact
that is manifestly obvious to all involved, nor are there uncontroverted facts that simply were not
pled in the Underlying Action[.]” As such, this Court cannot consider extrinsic facts.
CONCLUSION
For the aforementioned reasons, this Court finds that Defendant MCC had a duty to
defend in the Underlying Lawsuit. First, the allegations in the Underlying Complaint fairly and
potentially bring Perea’s suit within the scope of coverage of the general liability policy issued
by Defendant MCC. Second, although Defendant MCC relies on exclusions to deny any duty to
defend, the allegations in the Underlying Complaint are not cast solely and entirely within the
policy exclusions and are subject to other reasonable interpretations. Therefore, it is hereby
Case No: 2019-003916-CA-01 Page 7 of 9
ORDERED and ADJUGDED that Plaintiff’s Motion for Partial Summary Judgment on
Defendant Mid-Continent Casualty Company’s Duty to Defend is GRANTED. Accordingly, for
these same reasons, Defendant Mid-Continent Casualty Company’s Cross Motion for Summary
Judgment on Plaintiff’s Amended Complaint Cross Motion for Summary Judgment is DENIED.
DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 15th day of June,
2020.
2019-003916-CA-01 06-15-2020 11:54 AM
Hon. Oscar Rodriguez-Fonts
CIRCUIT COURT JUDGE
Electronically Signed
No Further Judicial Action Required on THIS MOTION
CLERK TO RECLOSE CASE IF POST JUDGMENT
Electronically Served:
Brandon Cathey, Team2eservice@swopelaw.com
Brandon Cathey, eservice@swopelaw.com
Brandon G Cathey, BrandonC@swopelaw.com
Brandon G Cathey, team2eservice@swopelaw.com
Brandon G Cathey, eservice@swopelaw.com
Brent G Steinberg, team2eservice@swopelaw.com
Brent G Steinberg, eservice@swopelaw.com
David P Carlton, dpc@carltonslaw.com
David P Carlton, jah@carltonslaw.com
Edward T. Sylvester, esylvester@hinshawlaw.com
Edward T. Sylvester, lleon@hinshawlaw.com
Edward T. Sylvester, esylvester@hinshawlaw.com
Edward T. Sylvester, mislacalleiro@hinshawlaw.com
Michael T. Tomlin, mtomlin@hinshawlaw.com
Michael T. Tomlin, clucas@hinshawlaw.com
Case No: 2019-003916-CA-01 Page 8 of 9
Siobhan E Grant, sgrant@hinshawlaw.com
Siobhan E Grant, lleon@hinshawlaw.com
Physically Served:
Case No: 2019-003916-CA-01 Page 9 of 9
Preview
Filing # 108852814 E-Filed 06/15/2020 12:05:46 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO: 2019-003916-CA-01 SECTION: CA27 JUDGE: Oscar Rodriguez-Fonts John Hughes, III et al Plaintiff(s) vs. Roman Flicker et al Defendant(s) ____________________________/ ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON DEFENDANT MID-CONTINENT CASUALTY COMPANY’S DUTY TO DEFEND AND DENYING MID-CONTINENT CASUALTY COMPANY’S CROSS MOTION FOR SUMMARY JUDGEMENT ON PLAINTIFF’S AMENDED COMPLAINT THIS CAUSE came before the Court on Plaintiff’s Motion for Partial Summary Judgment on Defendant Mid-Continent Casualty Company’s Duty to Defend (“Motion for Partial Summary Judgment”) and Mid-Continent Casualty Company’s (“Defendant MCC”) Cross Motion for Summary Judgment on Plaintiff’s Amended Complaint (“Cross Motion”) (collectively “Motions”). The Court, having reviewed the Motions, responses and replies, case law, having conducted a hearing on April 22, 2020, and being otherwise fully advised in the premises, finds as follows: FACTUAL AND PROCEDURAL BACKGROUND In 2010 Manuel Perea (“Perea”) filed suit against Flicker Construction (“Flicker”) in an action styled Manuel Perea v. Flicker Construction, Inc, Case No.: 10-58782-CA-01 (“Underlying Lawsuit” or “Underlying Complaint”). The underlying matter proceeded to a jury trial and a judgment was entered in favor of Perea. Case No: 2019-003916-CA-01 Page 1 of 9 The Plaintiff in the present matter filed a Complaint, which was later amended, alleging that Roman Flicker fraudulently transferred assets from Flicker Construction and breached certain fiduciary duties. Plaintiff also alleges that Defendant MCC, breached its duty to defend and indemnify Flicker Construction for the damages awarded to Perea in the Final Judgment of the Underlying Lawsuit. Plaintiff now moves this Court to grant partial summary judgement on the issue of whether Defendant MCC had a duty to defend Flicker in the Underlying Lawsuit. Conversely, Defendant MCC moves this Court for entry of an order granting summary judgment finding the Defendant MCC owed no duty to defend or indemnify in the Underlying Lawsuit. ANALYSIS Under Florida law, an insurer’s duty to defend is separate and distinct from its duty to indemnify, and it is more extensive. First Am. Title Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 695 So. 2d 475, 476 (Fla. 3d DCA 1997) (citing Klaesen Bros., Inc. v. Harbor Ins. Co., 410 So. 2d 611, 612-13 (Fla. 4th DCA 1982)). The insurance provider’s duty to defend depends solely on the facts and legal theories alleged in the pleadings and claims against the insured.” James River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1275 (11th Cir. 2008) (quoting Nova Casualty Co. v. Waserstein, 424 F.Supp.2d 1325, 1332 (S.D.Fla.2006)). “A liability insurer’s obligation, with respect to its duty to defend, is not determined by the insured’s actual liability but rather by whether the alleged basis of the action against the insurer falls within the policy’s coverage.” XL Specialty Ins. Co. v. Skystream, Inc., 943 So. 2d 848, 849 (Fla. 3d DCA 2006). Accordingly, a determination regarding the duty to defend requires the Court to examine the allegations in the complaint and the insurance policy. See Lime Tree Vill. Cmty. Club Ass’n Inc. v. State Farm Gen. Ins. Co., 980 F.2d 1402, 1405 (11th Cir. 1993). An insurer is Case No: 2019-003916-CA-01 Page 2 of 9 obligated to defend a claim even if it is uncertain whether coverage exists under the policy, as long as the pleadings bring the case fairly and potentially within the scope of coverage. See First Am. Title Ins. Co., 695 So. 2d at 476; Keen v. Florida Sheriffs’ Self-Ins., 962 So. 2d 1021, 1024 (Fla. 4th DCA 2007). “If the allegations of the complaint leave any doubt as to the duty to defend, the question must be resolved in favor of the insured.” Lime Tree Vill. Cmty. Club Ass’n, Inc., 980 F.2d at 1405. Insurance contracts are construed in accordance with the plain language of their provisions. Auto–Owners Ins. Co. v. Anderson, 756 So. 2d 29, 33-34 (Fla. 2000). Still, if the pertinent policy language is susceptible to multiple reasonable interpretations then the policy is ambiguous and should be interpreted liberally in favor of the insured and strictly against the insurer. E. Florida Hauling, Inc. v. Lexington Ins. Co., 913 So. 2d 673, 676 (Fla. 3d DCA 2005). In the present case, the Underlying Complaint alleges in pertinent part: ● Flicker was “a Florida corporation engaged in the business of construction contracting providing construction contracting services to members of the general public.” ● In September 2010, “Perea was either directly or indirectly retained by Flicker to perform bathroom tile installation at Kosta Seafood & More[.]” ● Flicker “was in control of the construction being performed within the above described premises, which was being performed at the direction and under the supervisions of Flicker.” ● Flicker, “by and through its employees, agents, apparent agents and/or ostensible agents, negligently caused Perea to suffer personal injuries by and through” its failure to properly secure the spiral staircase; failure to inspect or maintain the construction site and premises; failure to warn Perea; and failure to provide reasonably safe premises for Perea. Case No: 2019-003916-CA-01 Page 3 of 9 ● And as a direct and proximate result of Flicker’s negligence, Perea suffered injuries. Defendant MCC issued commercial general liability policy number 04-GL-000784399 to Flicker which was effective from March 12, 2010 through March 12, 2011. The pertinent policy provision provides that MCC will have the right and duty to defend Flicker against any suit seeking damages as a result of bodily injury or property damage, unless it is bodily injury or property damage to which that policy did not apply. Based on the Underlying Complaint and the insurance policy, the allegations fairly and potentially bring the suit within policy coverage for purposes of the duty to defend. However, although an insurer must defend the insured when the complaint fairly brings the case within the scope of coverage, if the complaint shows the applicability of a policy exclusion then the insurer has no duty to defend. State Farm Fire & Cas. Co. v. Tippett, 864 So. 2d 31, 35 (Fla. 4th DCA 2003) (citing Reliance Ins. Co. v. Royal Motorcar Corp., 534 So. 2d 922, 923 (Fla. 4th DCA 1988)). See also Keen, 962 So. 2d at 1024. Exclusionary clauses are strictly construed. Estate of Tinervin v. Nationwide Mut. Ins. Co., 23 So. 3d 1232, 1236–37 (Fla. 4th DCA 2009). “However, exclusionary provisions which are ambiguous or otherwise susceptible to more than one meaning must be construed in favor of the insured, since it is the insurer who usually drafts the policy.” Mid-Continent Cas. Co. v. Royal Crane, LLC, 169 So. 3d 174, 182 (Fla. 4th DCA 2015) (quoting State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245, 1248 (Fla.1986)) (internal quotation marks omitted). Defendant MCC’s liability policy contains a “Worker’s Compensation Exclusion,” which eliminates coverage for “any obligation of the insured under any workers’ compensation, disability benefits or unemployment compensation or any similar law.” This exclusion bars coverage of claims arising from bodily injuries for which the insured is required to pay benefits under workers’ compensation law. Morales v. Zenith Ins. Co., 152 So. 3d 557, 561 (Fla. 2014). As both parties suggest, a Worker’s Compensation Exclusion has been held to apply Case No: 2019-003916-CA-01 Page 4 of 9 whenever the injured claimant is eligible for workers’ compensation benefits under Chapter 440 of the Florida Statutes. Id. at 563. To determine whether the Workers’ Compensation Exclusion eliminated MCC’s duty to defend, this Court must decide whether the Underlying Complaint demonstrates that Flicker was required to provide workers’ compensation benefits to Perea for his bodily injury claim. See Advanced Sys., Inc. v. Gotham Ins. Co., 272 So. 3d 523, 527 (Fla. 3d DCA 2019) (“Because [insurer] relies on an exclusion to deny coverage, it has the burden of demonstrating that the allegations of the complaint are cast solely and entirely within the policy exclusion and are subject to no other reasonable interpretation.” (quoting Castillo v. State Farm Florida Ins. Co., 971 So. 2d 820, 824 (Fla. 3d DCA 2007) (internal quotation marks removed)). This Court cannot do so. Chapter 440 of the Florida Statutes provides several exclusions to worker’s compensation coverage and benefits. See § 440.02, Fla. Stat. (2015) (Employee means any person who receives remuneration from an employer, including all persons who are being paid by a construction contractor as a subcontractor, unless the subcontractor has validly elected an exemption as permitted by this chapter, or has otherwise secured the payment of compensation coverage as a subcontractor, further, the term Employee does not include a volunteer). The Underlying Complaint is vague as to both Perea and Flicker’s relationship and Flicker’s role in the construction project. The Underlying Complaint does not refer to Perea as an employee nor does it refer to Flicker as an employer, a subcontractor or a general contractor. The Underlying Complaint makes no reference to Workers’ Compensation coverage or exceptions thereto. It is not unreasonable to infer, as Defendant MCC urges this Court to do, that Flicker was the general contractor because it is the only defendant in the underlying action, was alleged to be in control of the premises and breached duties to Perea. It is also not unreasonable to infer that Underlying Complaint sets forth an employer-employee relationship. However, even making these assumptions, the Court does not find that the allegations in the Underlying Complaint are cast solely and entirely within the policy exclusion. These allegations are subject to other reasonable Case No: 2019-003916-CA-01 Page 5 of 9 interpretations, such as the exceptions to coverage set forth in the statute. Therefore, this Court does not find that the Worker’s Compensation Exclusion clearly applies, subject to no other reasonable interpretation. The second relevant exclusion in Defendant MCC’s policy is the “Employer’s Liability Exclusion.” This exclusion eliminates coverage for an employee who was injured in the course of their employment by the insured or performance of duties related to the conduct of the insured’s business. In the policy, “Employee” is defined to include a “leased worker,” but not a “temporary worker.” Thus, Defendant MCC would owe a duty to defend if the injured claimant was a “temporary worker” rather than an “employee” as defined in the policy. See Nat’l Indem. Co. of S. v. Landscape Mgmt. Co., Inc., 963 So. 2d 361, 363 (Fla. 4th DCA 2007). Again, to determine whether the Employer’s Liability Exclusion eliminated Defendant MCC’s duty to defend, this Court must decide whether the Underlying Complaint shows that Perea was an employee of Flicker, as defined by the policy. See Advanced Sys., Inc., 272 So. 3d at 527. Again, this Court cannot do so. The Underlying Complaint fails to set forth enough information to show that Perea was an employee of Flicker as defined in the policy and not a temporary worker. The Underlying Complaint is vague as to both Perea and Flicker’s relationship. The Underlying Complaint does not refer to Perea as an employee, it states that he was either directly or indirectly retained. The Underlying Complaint does not allege how Perea was “retained” or in what capacity, only that it was to perform bathroom tile installation. Retain is defined as “[t]o hire” or “to engage for the provision of services (as by a lawyer, an accountant, an employee, etc.).” RETAIN, Black’s Law Dictionary (11th ed. 2019). The broadness of the term “retain” along with the broadness of “directly or indirectly” lead this Court to conclude that these allegations are not solely and entirely within the policy exclusion, subject to no other reasonable interpretations. Particularly, there is nothing in the Underlying Complaint that determines whether Perea was a temporary worker as defined by the policy. Case No: 2019-003916-CA-01 Page 6 of 9 Therefore, based on the allegations in the Underlying Complaint reviewed in unison with the insurance policy, this Court cannot conclude Defendant MCC had no duty to defend Flicker based on the pertinent exclusions. The Plaintiff and Defendant MCC urge this Court to consider other record evidence in order to rule on the Motions. “The duty to defend is not determined by the complaint’s wording alone.” Keen, 962 So. 2d at 1024 (citing Tippett, 864 So.2d at 35 (Fla. 4th DCA 2003)). Indeed, a court may consider extrinsic facts “if those facts are undisputed, and, had they been pled in the complaint, they clearly would have placed the claims outside the scope of coverage.” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1323-24 (11th Cir. 2014). However, in Florida, such circumstances are found only in exceptional cases “where 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.” Id. (quoting First Specialty Ins. Corp. v. 633 Partners, Ltd., 300 Fed.Appx. 777, 786 (11th Cir.2008)). That is not the case here. The extensive evidence does not make it “manifestly obvious” that the actual facts place the claim outside the scope of coverage and it would be improper for this Court to weigh the evidence. See Advanced Sys., Inc., 272 So. 3d at 528 (the record before the court “contains no objective fact that is manifestly obvious to all involved, nor are there uncontroverted facts that simply were not pled in the Underlying Action[.]” As such, this Court cannot consider extrinsic facts. CONCLUSION For the aforementioned reasons, this Court finds that Defendant MCC had a duty to defend in the Underlying Lawsuit. First, the allegations in the Underlying Complaint fairly and potentially bring Perea’s suit within the scope of coverage of the general liability policy issued by Defendant MCC. Second, although Defendant MCC relies on exclusions to deny any duty to defend, the allegations in the Underlying Complaint are not cast solely and entirely within the policy exclusions and are subject to other reasonable interpretations. Therefore, it is hereby Case No: 2019-003916-CA-01 Page 7 of 9 ORDERED and ADJUGDED that Plaintiff’s Motion for Partial Summary Judgment on Defendant Mid-Continent Casualty Company’s Duty to Defend is GRANTED. Accordingly, for these same reasons, Defendant Mid-Continent Casualty Company’s Cross Motion for Summary Judgment on Plaintiff’s Amended Complaint Cross Motion for Summary Judgment is DENIED. DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 15th day of June, 2020. 2019-003916-CA-01 06-15-2020 11:54 AM Hon. Oscar Rodriguez-Fonts CIRCUIT COURT JUDGE Electronically Signed No Further Judicial Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT Electronically Served: Brandon Cathey, Team2eservice@swopelaw.com Brandon Cathey, eservice@swopelaw.com Brandon G Cathey, BrandonC@swopelaw.com Brandon G Cathey, team2eservice@swopelaw.com Brandon G Cathey, eservice@swopelaw.com Brent G Steinberg, team2eservice@swopelaw.com Brent G Steinberg, eservice@swopelaw.com David P Carlton, dpc@carltonslaw.com David P Carlton, jah@carltonslaw.com Edward T. Sylvester, esylvester@hinshawlaw.com Edward T. Sylvester, lleon@hinshawlaw.com Edward T. Sylvester, esylvester@hinshawlaw.com Edward T. Sylvester, mislacalleiro@hinshawlaw.com Michael T. Tomlin, mtomlin@hinshawlaw.com Michael T. Tomlin, clucas@hinshawlaw.com Case No: 2019-003916-CA-01 Page 8 of 9 Siobhan E Grant, sgrant@hinshawlaw.com Siobhan E Grant, lleon@hinshawlaw.com Physically Served: Case No: 2019-003916-CA-01 Page 9 of 9