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Filing # 106348537 E-Filed 04/16/2020 03:44:34 PM
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
CIVIL DIVISION
JOHN HUGHES, III, as receiver of Flicker
Construction, Inc., an inactive Florida CASE NO. 2019-CA-003916
corporation,
Plaintiff,
vs.
ROMAN FLICKER and MID-CONTINENT
CASUALTY COMPANY,
Defendants.
/
MCC’S RESPONSE IN OPPOSITION TO THE PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT
Pursuant to Florida Rule of Civil Procedure 1.510, Mid-Continent Casualty Company
(“MCC”) responds in opposition to the Motion for Partial Summary Judgment (“Motion”) filed
by Plaintiff, John Hughes, as receiver of Flicker Construction, Inc. (“Plaintiff”). For the reasons
stated below, this Court deny Plaintiff’s Motion and grant MCC’s Cross-Motion for Summary
Judgment.
INTRODUCTION
Plaintiff is seeking a ruling that MCC had a duty to defend Flicker Construction, Inc.
(“Flicker Construction”) as well as provide indemnification under the policy of insurance MCC
issued to Flicker Construction for a tort judgment entered in Manuel Perea’s favor. However,
Plaintiff concedes MCC’s Policy contains workers compensation and employer’s liability
exclusions. “Florida case law suggests . . . the purpose of exclusions such as [the workers’
compensation exclusion] is to exclude coverage of those employees protected by the workers’
compensation law, whereas the language of [the employer’s liability exclusion] acts to exclude
liability for injury to employees generally.” Greathead v. Asplundh Tree Expert Co., 473 So. 2d
1380, 1383 (Fla. 1st DCA 1985) (emphasis in original). Applying those exclusions to both the
Underlying Action’s Complaint and the actual facts show MCC had no duty to defend or
indemnify Flicker Construction so Plaintiff is not entitled to his requested relief.
I. Statement of Disputed Material Facts
MCC admits issuing to Flicker Construction the insurance policy MCC filed in Southern
District of Florida Case Number 1:16-cv-23805. MCC also admits receiving a copy of
underlying complaint. Regarding the remaining allegations, MCC denies receiving all of the
pages contained in Exhibit 2. In addition, MCC denies that all of the documents contained in
Exhibit 2 and the disclaimer letter filed as Exhibit 3 are relevant to whether a duty to defend
exists. See Continental Concrete, Inc. v. Lakes at La Paz III, Ltd. Pshp., 758 So. 2d 1214, 1217
(Fla. 4th DCA 2000) (stating “A material fact, for summary judgment purposes, is a fact that is
essential to the resolution of the legal questions raised in the case.”). Since those documents are
irrelevant, the dispute regarding them does not preclude this Court from granting MCC’s
dispositive motion.
II. Statement of Additional Material Facts
MCC includes the following Additional Material Facts (“AMF”) in support of its
Response in Opposition to Plaintiff’s MSJ:
1. Mr. Perea filed suit against Flicker Construction in an action styled Manuel Perea
v. Flicker Construction, Inc. with Case No.: 10-58782-CA-01 (“Underlying Complaint”). A true
and correct copy of the Underlying Complaint is attached as Exhibit A (“Ex. A”).
2. The Underlying Complaint states Flicker Construction “was and is a Florida
corporation engaged in the business of construction contracting providing construction
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contracting services to members of the general public.” Ex. A, ¶ 3.
3. According to the Underlying Complaint, “[o]n or about September 6, 2010 [Mr.]
Perea was either directly or indirectly retained by Flicker [Construction] to “perform bathroom
tile installation at Kosta Seafood & More…, which is a restaurant located within the Vue at
Brickell Condominium, 1250 South Miami Avenue in Miami, Miami-Dade County, Florida.”
Ex. A, ¶4.
4. The Underlying Complaint further asserts that Mr. Perea “was lawfully within the
premises, as described above, and was walking through the restaurant when a spiral staircase
used to access a loft within the restaurant fell on top of him.” Ex. A, ¶ 5.
5. The Underlying Complaint also asserts that “[a]s a direct and proximate result of
the above;” that is, Mr. Perea’s walking through the restaurant by virtue of his retention by
Flicker Construction to install floor tiles as part of Flicker Construction’s contracting services,
Mr. Perea “sustained serious injuries, including, but not limited to, foot fractures.” Ex. A, ¶ 6.
6. According to the Underlying Compliant, Flicker Construction “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 [Construction].” Ex. A., ¶ 8.
7. The Underlying Complaint alleges that Flicker Construction, “by and through its
employees, agents, apparent agents and/or ostensible agents, negligently caused [Mr.] Perea to
suffer personal injuries by and through the following acts:
a. Positioning the spiral staircase in place and in an upright position without
properly securing it so that it fell on PEREA;
b. negligently failing to inspect or maintain the construction site and
premises to ensure that the spiral staircase was properly secure and not an
unreasonable risk of harm to those lawfully within the premises;
c. failing to warn those within the premises, including PEREA, of negligent
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condition created by the unsecured spiral staircase;
d. failing to provide a reasonably safe premises for invitees, including
PEREA; and
e. other acts of negligence to be determined through discovery.
Ex. A, ¶ 9.
8. The Underlying Complaint alleges that “[a]s a direct and proximate result of the
negligence of FLICKER, as described above, PEREA suffered injuries, including, but not limited
to, a fractured foot.” Ex. A. ¶ 10.
III. Statement of Additional Undisputed Material Facts Regarding the Duty to Defend
Within the Ambit of Nationwide Mut. Fire Ins. Co. v. Keen, 658 So. 2d 1101, 1103
(Fla. 4th DCA 1995) and Nateman v. Hartford Cas. Ins. Co., 544 So. 2d 1026, 1027
(Fla. 3d DCA 1989)
9. The City of Miami issued the Building Permit for the work at the subject
restaurant based on the Permit Application identifying Flicker Construction as the Contractor for
the project and signed by Roman Flicker as the Qualifier. A copy of the Certified Permit
Application is attached hereto as Exhibit B (“Ex. B”).
10. Flicker Construction is the qualifying contractor identified on the Building and
Zoning Permit Form. A copy of the Certified Building and Zoning Permit Form is attached hereto
as Exhibit C (“Ex. C”).
11. Flicker Construction is also listed as the permit holder on the Certified Building
Certificate. A copy of the Building Certificate is attached as Exhibit D (“Ex. D”).
12. Flicker Construction is identified on the City of Miami’s Fire Penetration
Affidavit for the restaurant project. A copy of the Fire Penetration Affidavit is attached as Exhibit
E (“Ex. E”).
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IV. Statement of Additional Undisputed Material Facts Regarding the Duty to
Indemnify
Testimony of Roman Flicker
13. Roman Flicker was the sole owner of Flicker Construction, Inc. (Flicker Dep.
17:5-7; 23:1-4, Apr. 28, 2017.) The transcript of the deposition of Roman Flicker is attached
hereto as Exhibit F (“Ex. F”). He received his general contractor’s license in 1998. (Ex. F, at
18:13-15.) Mr. Flicker pulled the construction permit for the restaurant build-out located at 1250
South Miami Avenue. (Ex. F, at 36:14-23.)
14. Mr. Flicker met with the lessees who wanted to build out the restaurant at the
1250 South Miami Avenue site. (Ex. F, at 36:24-37:1, 37:8-10, 14-16.) Jose Rafael Jimenez was
also present at the meeting. (Ex. F, at 37:11-16.) At the meeting, the lessees had architectural
plans and discussed that “[t]hey wanted some different flooring here, paint some here, move
couple of walls over there . . . what color walls they wanted, what kind of kitchen they wanted,
and so on.” (Ex. F, at 40:15-21; 41:17-18.) Mr. Flicker looked at the architectural plans at the
meeting, and “the plans were basically for couple walls, and then electrical, plumbing,
mechanical, gas lines for the hood tops for the kitchen.” (Ex. F, at 41:4-11, 18-21.)
15. After meeting with the lessees, Mr. Flicker—as the qualifier for Flicker
Construction, Inc.—signed the City of Miami Building Department Permit Application for the
build-out at the 1250 South Miami Avenue location. (Ex. F, at 48:2-4; 49:4-14; 50:5-10 & Ex.
B.) Mr. Flicker testified that Flicker Construction, Inc. is the qualifying contractor identified on
the Building and Zoning Permit Form. (Ex. F, at 48:13-18, 44:18-23 & Ex. C.) Flicker is also
listed as the permit holder on the Building Certificate. (Ex. F, at 53:22-54:5 & Ex. D.)
16. Mr. Flicker talked to Mr. Jimenez about how the build-out was going, including
“[t]hat he was looking for the hoods for the oven—for the kitchen, exhaust hood; basically it was
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shop talk.” (Ex. F, at 54:15-18, 22-24; 54:25-55:1; 55:8-18.)
17. Mr. Flicker testified that neither he nor Flicker Construction received
compensation for the job at the 1250 South Miami Avenue location. (Ex. F, at 56:22-24; 62:14-
20.) Mr. Flicker “pulled the permit, not for fees or anything, just to help [Ralph Jimenez] to
start. . . .Basically, tried to help him out, and unfortunately it didn’t work out. I wasn’t being
compensated or I wasn’t get paid or nothing else. I wasn’t involved in the build-out.” (Ex. F, at
78:10-79:2.) Mr. Flicker was not paid by Mr. Jimenez and there was no promise to be paid by
Mr. Jimenez: “I did this as a favor, that he was acquaintance of mine, kind of friend, so I tried to,
you know, start his company and help him out.” (Ex. F, at 81:14-21.) Mr. Jimenez hired the
person that hired Mr. Perea to do the tile work. (Ex. F, at 63:17-64:2.)
Testimony of Jose Rafael Jimenez
18. Jose Rafael Jimenez is the sole owner of Century Wide Remodeling, Inc.
(“Century”), a construction company that Mr. Flicker hired to oversee and perform the work at
the Project. (Jimenez Dep. 7:8-18, 12-13, 22, Mar. 29, 2017.) The transcript of the deposition of
Jose Rafael Jimenez is attached hereto as Exhibit G (“Ex. G”).
19. Mr. Jimenez “picked up the plans from the—for the job, and I took it to Mr.
Flicker, and he—so he can put the numbers on the job. I mean, you know, I wasn’t qualified to
do that. You know, he was the contractor, so he’s the one that put the numbers on the job. I
couldn’t put the numbers on the job .. . .” (Ex. G, at 16:19-17:1, 11-17.) Jimenez denied that
Century was functioning as the general contractor for the project: “The contractor always was
Flicker, and we just did the job, and he made sure that everything was done properly. Everything
was supervised by Flicker.” (Ex. G, at 61:24-62:7.)
20. Mr. Jimenez confirmed a verbal agreement with Flicker Construction whereby
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each was paid: “I got paid for what I used to do and that’s it. The rest, he get his part and I get
paid.” (Ex. G, at 62:13-63:5.) Century controlled the payment to all the subcontractors for the
project. (Ex. G, at 63:6-9.) Mr. Jimenez hired the electrical, A/C company and the tile company.
(Ex. G, at 63:20-64:2.)
Testimony of Manuel Perea
21. Mr. Perea testified that he came to work on the 1250 South Miami Avenue project
through Mr. Jimenez. (Perea Dep. 20:17-19; 20:25-21:13, Apr. 18, 2017.) The transcript of the
deposition of Manuel Perea is attached hereto as Exhibit H (“Ex. H”). He was hired by Jimenez
to install tile on the floors in the bathrooms and portions of the walls at the Project. (Ex. H, at
25:6-23.)
22. Mr. Perea worked on the tile installation with an individual named Juan Manuel
Rivas. (Ex. H, at 33:4-17.) Jimenez paid Perea and Rivas for their work by checks made out to
Rivas, who would then cash the checks and give Perea his share of the cash. (Ex. H, at 47:13-23;
49:6-19.)
The MCC Policy
23. MCC issued policy number 04-GL-000784399 to Flicker Construction which was
effective from March 12, 2010 through March 12, 2011 (“Policy”). A true and correct copy of
the Policy is attached to the Affidavit of Jack Jordan, attached as Exhibit I (“Ex. I”).
24. The MCC Policy includes two exclusions at issue in this case: the Workers’
Compensation Exclusion and the Employer’s Liability Exclusion:
2. Exclusions
This insurance does not apply to:
***
d. Workers’ Compensation And Similar Laws
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Any obligation of the insured under a workers’
compensation, disability benefits or unemployment
compensation law or any similar law.
e. Employer’s Liability
“Bodily injury” to:
(1) An “employee” of the insured arising out of and in
the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of
the insured’s business; or
(2) The spouse, child, parent, brother or sister of that
“employee” as a consequence of Paragraph (1)
above.
This exclusion applies whether the insured may be liable as
an employer or in any other capacity and to any obligation
to share damages with or repay someone else who must pay
damages because of the injury.
This exclusion does not apply to liability assumed by the
insured under an “insured contract”.
(Ex. I.)
V. LEGAL STANDARDS
A. Standard for Summary Judgment
Florida Rule of Civil Procedure Rule 1.510(c) provides that summary judgment shall be
rendered in favor of the moving party if “the pleadings, depositions, answers to interrogatories,
admissions, affidavits, and other materials as would be admissible in evidence on file show that
that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d
126, 130 (Fla. 2000). Since the interpretation of an insurance policy is a question of law to be
decided by the court, coverage questions, such as are at issue here, are typically decided by
summary judgment. See Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985).
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B. Standard for Insurance Contract Interpretation
“Insurance contracts are construed according to their plain meaning.” Garcia v. Federal
Ins. Co., 969 So. 2d 288, 291 (Fla. 2007). For this reason, a court’s inquiry always “begins with
a review of the plain language of the insurance policy as bargained for by the parties.” Koikos v.
Travelers Ins. Co., 849 So. 2d 263, 266 (Fla. 2003). Stated simply, “if a policy provision is clear
and unambiguous, it should be enforced according to its terms whether it is a basic policy
provision or an exclusionary provision.” Taurus Holdings, Inc. v. U.S. Fid. and Guar. Co., 913
So. 2d 528, 532 (Fla. 2005). Merely because an insurance policy is a complex instrument does
not automatically render its terms ambiguous. See State Farm Fire & Cas. Co. v. Oliveras, 441
So. 2d 175, 178 (Fla. 4th DCA 1983). Courts should apply the plain meaning of words and
phrases used in a policy of insurance without resorting to the doctrine of reasonable expectations.
See, e.g., Southeastern Fire Ins. Co. v. Lehrman, 443 So. 2d 408, 409 (Fla. 4th DCA 1984).
“Courts may not rewrite contracts, add meaning that is not present, or otherwise reach results
contrary to the intentions of the parties.” Intervest Const. of Jax, Inc. v. Gen. Fid. Ins. Co., 133
So. 3d 494, 497 (Fla. 2014).
Under Florida law, the duty to defend is traditionally determined by comparing the
allegations in the underlying complaint to the policy. Higgins v. State Farm Fire and Cas. Co.,
894 So. 2d 5, 9-10 (Fla. 2004). Under those circumstances an insurer must defend only when the
initial pleadings bring the case within coverage. Pioneer Nat’l Title Ins. Co. v. Fourth Commerce
Props. Corp., 487 So. 2d 1051, 1054 (Fla. 1986). The duty to defend is broader than, and
distinct from, the duty to indemnify; thus, where there is no duty to defend, correspondingly,
there is no duty to indemnify. See Fun Spree Vacations, Inc. v. Orion Ins. Co., 659 So. 2d 419,
421 (Fla. 3d DCA 1995) (citations omitted).
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VI. MCC Had No Duty To Defend Of Indemnify Flicker Construction
A. No Duty To Defend or Indemnify Existed Based On The Underlying
Complaint’s Allegations
The Plaintiff’s dispositive motion concedes MCC’s Policy specifically excludes coverage
for any obligation of the insured under a “workers compensation, disability benefits or
unemployment compensation law or any similar law.” See Motion, Page 5. Likewise, the
Plaintiff also admits MCC’s Policy precludes coverage for “bodily injury” to an “employee” of
Flicker Construction arising out of and in the course of performing duties related to the conduct
of Flicker Construction. See Motion at Page 11.
Courts have previously relied on these exclusions to hold MCC has no duty to defend or
indemnify insureds. For instance, in Mid-Continent Cas. Co. v. Arpin & Sons, LLC, 261 F.
Supp. 3d 1245 (S.D. Fla. 2017), the United States District Court for the Southern District of
Florida summarized how MCC’s insured, Arpin, acted as the general contractor on a project
where Lee Ellis Blue was working when he was electrocuted, causing him severe injuries
including the amputation of his arms. Blue brought a state court complaint against Arpin
alleging that itwas negligent in performing its duties as the Project’s general contractor. See
Arpin & Sons, LLC, 261 F. Supp. 3d at *2. Like here, MCC argued on summary judgment in the
subsequent coverage action that its policy did not require it to defend or indemnify Arpin in the
underlying state court litigation. Id. at *3. Recognizing that “[u]nder Florida law, a contractor
who sublets part of its work to a subcontractor develops a statutory employment relationship
with the employees of that subcontractor,” and that “[s]tatutory employees have been treated
identically to actual employees in relation to standard employee exclusion clauses,” the Court
determined that “Florida law requires that I construe the Policy’s workers’ compensation
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exclusion and employer’s liability exclusion as applying to Arpin’s actual and statutory
employees.” Id. at *5-6.
Regarding the duty to defend, the Court held that the allegations in the underlying
complaint – including that Arpin “‘would act as the General Contractor and Arpin would procure
all building permits,’“ and that Arpin breached the duties “allegedly owed Blue as the Project’s
general contractor’“ – established as a matter of law that “Arpin was ‘legally obligated to secure
the payment of medical and disability benefits for any employee who [was] injured at work,’
Slora v. Sun & Fun Fly-In, Inc., 173 So. 3d 1099, 1102 (Fla. 2d DCA 2015) – i.e., Arpin was the
statutory employer of contractors working on the Project, including Blue.” Id. at *7-9. The
Court found that “Blue’s allegations against Arpin are therefore ‘cast solely and entirely’ within
the [policy’s] workers’ compensation and employer’s liability exclusions, and ‘are subject to no
other reasonable interpretation,’“ and accordingly held that “MCC has no duty under the Policy
to defend Arpin in the state-court action.” Id. at *9 (quoting Luhman v. Covington Specialty Ins.
Co., CASE NO. 16-20044-CIV-GOODMAN, 2017 WL 850178, at *5 (S.D. Fla. March 2,
2017)).
Despite the Policy’s unambiguous exclusions, the Plaintiff in the action before this Court
has erroneously asserted they don’t preclude coverage based on Morales v. Zenith Ins. Co., 152
So. 3d 557 (Fla. 2014). In reality, that decision establishes MCC had no duty to defend Flicker
Construction. In Morales, the court considered a question certified to it by the United States
Court of Appeals for the Eleventh Circuit regarding whether a workers’ compensation exclusion
excluded coverage for a tort judgment against the insured. See Morales, 152 So. 3d at 559. In
that case’s underlying action the estate of a deceased employer brought a wrongful death action
against the insured employer. Id., at 560. Because the Workers’ Compensation Law provided the
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exclusive remedy for the estate’s claim, the estate had no right to recover in tort. Id. at 561.
Nevertheless, the estate obtained a default judgment against the employer and, when the insurer
refused to pay the judgment, the estate brought suit against the insurer. Id.
In concluding that the workers’ compensation exclusion applied to exclude coverage of
the tort judgment, the Morales court distinguished the appellate court’s decision in in Wright v.
Hartford Underwriters Ins. Co., 823 So. 2d 241, 243 (Fla. 4th DCA 2002). In Wright, “the
Fourth District concluded that an insurance company could not rely on a workers’ compensation
exclusion to avoid coverage of a settlement judgment entered in an injured employee’s civil suit
against his employer because the judgment was not an ‘obligation imposed by workers’
compensation law.’” Morales, 152 So. 3d at 562. Significantly, Wright had “alleged that his
injuries were the result of a fellow employee’s gross negligence, for which his employer was
vicariously liable…[,] implicating a statutory exception to workers’ compensation immunity that
allowed Wright to pursue a civil remedy.” Id. By contrast, nothing in the estate’s allegations in
Morales removed its claim from the exclusivity of the Workers’ Compensation Law. Id.
Reviewing this action’s Underlying Complaint shows it contains enough information to
hold Flicker Construction was Mr. Perea’s statutory employer. First, Mr. Perea’s Underlying
Complaint is brought solely against Flicker, relies entirely on the breach of duties for which
Flicker Construction allegedly owed Flicker as the project’s contractor and demands judgment
solely against Flicker. (AMF ¶¶ 1-6.) Second, Mr. Perea alleges that Flicker Construction, a
company in the business of construction contracting, retained Mr. Perea to perform bathroom tile
installation at the location of the project at issue. (AMF ¶¶ 2, 3, 5.) Third, Mr. Perea alleges that
while lawfully on the premises, and while such premises were under Flicker’s control, Mr. Perea
sustained injuries to his foot when a spiral staircase fell on him. (AMF ¶¶ 4-6.) Fourth, Mr.
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Perea alleges that at the time the work on the premises was being performed it was at Flicker’s
direction and under Flicker’s supervision. (AMF ¶ 6.) Fifth, Mr. Perea alleges four specific
breaches of Flicker’s duties to Perea for which were the direct and proximate result of Perea’s
injuries – duties that Flicker would only have as the general contractor in control of the job site –
including (1) failing to properly secure the staircase, (2) failing to ensure no unreasonable risk of
harm, (3) failing to warn of the unsecured staircase, and (4) failing to provide reasonably safe
premises. (AMF ¶ 7.). Accordingly, because the facts alleged in the Underlying Complaint do
not “fairly and potentially bring the suit within policy coverage,” there is no duty to defend and,
in turn, no duty to indemnify Flicker for Underlying Action. See Jones v. Fla. Ins. Guar. Ass’n,
Ins., 908 So. 2d 435, 442-43 (Fla. 2005). Therefore, MCC is entitled to summary judgment in its
favor and against Plaintiff that is has no duty to defend Flicker Construction for the Underlying
Complaint.
B. No Duty To Defend or Indemnify Existed Based On The Actual Facts
Even though the duty to defend is usually determined by comparing the underlying
complaint to the policy, the Florida Supreme Court has noted that “there are some natural
exceptions to [the eight corners rule] where an insurer’s claim that there is no duty to defend is
based on factual issues that would not normally be alleged in the underlying complaint.”
Higgins, 894 So. 2d at 10 n.2. “[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.” Addison Ins. Co. v. 4000 Island Blvd. Condo. Ass’n, 721 Fed.
Appx. 847, 854 (11th Cir. 2017) (quoting Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318,
1323 (11th Cir. 2014)). Florida’s appellate courts have consequently that a “carrier is relieved of
defending” “if uncontroverted evidence places the claim outside of coverage.” Nationwide Mut.
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Fire Ins. Co. v. Keen, 658 So. 2d 1101, 1103 (Fla. 4th DCA 1995). See also Nateman v.
Hartford Cas. Ins. Co., 544 So. 2d 1026, 1027 (Fla. 3d DCA 1989) (“mere allegations of the
plaintiff’s petition may not create an obligation on the part of the insurer to defend where no
such obligation previously existed.”
Here, the public records uncontrovertibly show Flicker Construction was the general
contractor on the site upon which Mr. Perea’s injuries are alleged to have occurred. Flicker
Construction is specifically named as the contractor for the project on the Building Permit.
(AMF, ¶ 9; Ex. B.) Flicker Construction is specifically named as the qualifying contractor on the
Building and Zoning Permit Form. (AMF, ¶ 10; Ex. C.) Flicker Construction is also specifically
named as the permit holder on the Building Certificate. (AMF, ¶ 11; Ex. D.) Flicker Construction
is also specifically named on the City of Miami’s Fire Penetration Affidavit for the restaurant
project. (AMF, ¶ 12; Ex. E.) This Court may take judicial notice of “[f]acts that are not subject
to dispute because they are capable of accurate and ready determination by resort to sources
whose accuracy cannot be questioned.” Fla. Stat. § 90.202(12); accord Florida Accountants
Association v. Dandelake, 98 So. 2d 323, 327 (Fla. 1957) (“This court takes judicial notice of the
public records of this state.”). While these public records were conveniently not alleged in the
Underlying Complaint, these uncontroverted facts establish Flicker Construction as the general
contractor, were known to Mr. Perea at the time of his pleading the Underlying Complaint and
clearly place his claim outside of coverage. Such facts fall perfectly within the tenets of Keen
and Nateman and should be considered in this Court’s analysis of the duty to defend – as
Plaintiff should not be able to avoid the consequences of Flicker Construction’s role as the
general contractor.
Just as the Court determined that Arpin was the statutory employer of contractors
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working on the Project, Mr. Perea’s allegations against Flicker are clearly “cast solely and
entirely” within the MCC policy’s workers’ compensation and employer’s liability exclusions,
and “are subject to no other reasonable interpretation.” Luhman, 2017 WL 850178, at *5. To the
extent the Court disagrees that MCC owes Flicker Construction no duty to defend; the actual
facts unequivocally support that MCC owes no duty to indemnify Flicker Construction. In such
an event, MCC’s discussion regarding the public records establishing Flicker Construction as the
general contractor – and preclusion of coverage – would apply equally to a consideration of the
duty to indemnify. That is, the fact that Flicker Construction is specifically named as the
contractor for the project on (1) the Building Permit, (2) the Building and Zoning Permit Form,
(3) the Building Certificate, and (4) the City of Miami’s Fire Penetration Affidavit cannot be
ignored. (AMF, ¶¶ 9-12; Ex.’s B-E.)
Additionally, Mr. Flicker testified he was the owner of Flicker Construction, received his
general contractor’s license in 1998 and pulled the permit for the project. (AMF, ¶ 13.) Mr.
Flicker further testified that Flicker Construction was the qualifying contractor and permit holder
for the project – and authenticated the public records described herein. (AMF, ¶ 15; Ex.’s B-D.)
Mr. Flicker also testified that he reviewed and discussed the architectural plans with the
restaurateurs before the build out and discussed the build out with Mr. Jimenez. (AMF, ¶¶ 14,
17.) This was substantiated by Mr. Jimenez, the owner of Century Wide Remodeling, Inc.
(“Century”), who testified that Mr. Flicker hired him to perform the work on the project –
although Mr. Jimenez stated that Mr. Flicker was the contractor and “put the numbers on the
job.” (AMF, ¶¶ 18, 19.)
Mr. Jimenez specifically denied being the general contractor for the project: “The
contractor always was Flicker, and we just did the job, and he made sure that everything was
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done properly. Everything was supervised by Flicker.” (AMF, ¶ 19.) Despite pulling the
permits, Mr. Flicker testified that he only did it to help out Mr. Jimenez and no money was
exchanged, which is disputed by Mr. Jimenez. (AMF, ¶¶ 17, 20.) Mr. Flicker and Mr. Jimenez
both testified that Mr. Jimenez hired Mr. Perea or hired the company for which Mr. Perea
worked. (AMF, ¶¶ 17, 20.) Mr. Perea testified that he was hired to lay the tiles for the project
and was paid for his work. (AMF, ¶¶, 21, 22.)
Moreover, under Florida Statutes § 489.127, a “certified or registered contractor, or
contractor authorized by a local construction regulation board to do contracting, may not apply
for or obtain a building permit for construction work unless [that] contractor has entered into a
contract to make improvements to, or perform the contracting at, the real property specified in
the application or permit.” Fla. Stat. § 489.127(4)(c). With Flicker Construction clearly
identified as the general contractor – and clearly the recipient of a building permit from the City
of Miami – it must be assumed as a matter of law that Flicker entered into a contract for the
improvements at the restaurant.
Further, a contractor is prohibited from agreeing to or knowingly allowing “his or her
certification number or registration number to be used by a person who is not certified or
registered.” Fla. Stat. § 489.127(4)(a) and (b). A first violation of these provisions is a first
degree misdemeanor; any subsequent violation is a third degree felony. See Fla. Stat.
§ 489.127(4)(d). By submitting the application for the Building Permit, Flicker Construction
represented that it had entered into a contract to perform the contracting at the restaurant and that
it was not simply using its certification to obtain a permit for an unlicensed contractor.
Significantly, construction at the project could not have commenced without that permit. Fla.
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Stat. § 489.127(1)(h). Any argument by Plaintiff that Flicker Construction was not the general
contractor is nonsensical.
As a matter of law, by using “his license as a general contractor in order to obtain the
construction permits,” Flicker Construction “assumed the legal position of general contractor for
the job.” Orama v. Dunmire, 552 So. 2d 924, 925 (Fla. 1st DCA 1989). (“…an agreement was
made with the owner whereby Dunmire would use his license as a general contractor in order to
obtain the construction permits. Dunmire thus assumed the legal position of general contractor
for the job.”). “There is… a fundamental equitable principle that ‘no one shall be permitted to
profit by his own fraud, or take advantage of his own wrong, or found any claim upon his own
iniquity, or profit by his own crime.’” Ashwood v. Patterson, 49 So. 2d 848, 850 (Fla. 1951).
Thus, “[o]ne who engages in a fraudulent scheme forfeits all right to the prosecution of a law
suit.” Horjales v. Loeb, 291 So. 2d 92, 93 (Fla. 3d DCA 1974). In Horjales, the court upheld a
dismissal where the plaintiff admitted that his testimony was directly contrary to that given in
another proceeding and the change in testimony was made for the purpose of securing coverage
under an insurance liability policy. See also Camejo v. Department of Business and Professional
Regulation, 812 So. 2d 583, 583–84 (Fla. 3d DCA 2002) (contractor could not avoid
accountability for work poorly performed pursuant to building permits he never signed because
the disciplinary statute “does not carve out an exception for qualifying agents who fail to
maintain control over the use of their certificates”). To hold that Jimenez rather than Flicker
Construction was the “general contractor would be tantamount to judicial approval of illegal
actions by [Flicker] in using his license as a sham.” Orama, 552 So. 2d at 925.
Having assumed the role of general contractor for purposes of securing a permit for the
restaurant construction project, Flicker Construction may not now deny its role as general
17
contractor to secure insurance coverage for an injury occurring in the course of that project. As
such, MCC is entitled to summary judgment in its favor and against Plaintiff that is has no duty
to indemnify Flicker Construction for the underlying judgment.
VIII The Plaintiff’s Other Arguments Lack Merit
A. This Court Did Not Previously Hold A Duty To Defend Exists
Plaintiff erroneously alleges he is seeking “a partial summary judgment order on an issue
of law which the Court already determined in Plaintiff’s favor: that Defendant, MCC, owed
Flicker Construction a duty to defend it from the underlying Perea v. Flicker Construction
lawsuit.” Motion, Page 2. If the Court had actually issued that ruling in September of 2019
there would have been no reason for the Plaintiff to subsequently file a dispositive motion on that
exact issue. In actuality, until September 20, 2019, the operative complaint did not even seek a
ruling regarding the duty to defend. In September of 2019 the Plaintiff filed a four-count
complaint against Roman Flicker and MCC. See The Plaintiff’s Initial Complaint. The Initial
Complaint’s sole count against MCC sought a judgment that MCC beached it duty to indemnify
Flicker Construction, Inc. See id. Years later, and not until shortly prior to the hearing on
MCC’s dispositive motion, the Plaintiff sought leave to file an amended complaint
Preview
Filing # 106348537 E-Filed 04/16/2020 03:44:34 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL DIVISION JOHN HUGHES, III, as receiver of Flicker Construction, Inc., an inactive Florida CASE NO. 2019-CA-003916 corporation, Plaintiff, vs. ROMAN FLICKER and MID-CONTINENT CASUALTY COMPANY, Defendants. / MCC’S RESPONSE IN OPPOSITION TO THE PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to Florida Rule of Civil Procedure 1.510, Mid-Continent Casualty Company (“MCC”) responds in opposition to the Motion for Partial Summary Judgment (“Motion”) filed by Plaintiff, John Hughes, as receiver of Flicker Construction, Inc. (“Plaintiff”). For the reasons stated below, this Court deny Plaintiff’s Motion and grant MCC’s Cross-Motion for Summary Judgment. INTRODUCTION Plaintiff is seeking a ruling that MCC had a duty to defend Flicker Construction, Inc. (“Flicker Construction”) as well as provide indemnification under the policy of insurance MCC issued to Flicker Construction for a tort judgment entered in Manuel Perea’s favor. However, Plaintiff concedes MCC’s Policy contains workers compensation and employer’s liability exclusions. “Florida case law suggests . . . the purpose of exclusions such as [the workers’ compensation exclusion] is to exclude coverage of those employees protected by the workers’ compensation law, whereas the language of [the employer’s liability exclusion] acts to exclude liability for injury to employees generally.” Greathead v. Asplundh Tree Expert Co., 473 So. 2d 1380, 1383 (Fla. 1st DCA 1985) (emphasis in original). Applying those exclusions to both the Underlying Action’s Complaint and the actual facts show MCC had no duty to defend or indemnify Flicker Construction so Plaintiff is not entitled to his requested relief. I. Statement of Disputed Material Facts MCC admits issuing to Flicker Construction the insurance policy MCC filed in Southern District of Florida Case Number 1:16-cv-23805. MCC also admits receiving a copy of underlying complaint. Regarding the remaining allegations, MCC denies receiving all of the pages contained in Exhibit 2. In addition, MCC denies that all of the documents contained in Exhibit 2 and the disclaimer letter filed as Exhibit 3 are relevant to whether a duty to defend exists. See Continental Concrete, Inc. v. Lakes at La Paz III, Ltd. Pshp., 758 So. 2d 1214, 1217 (Fla. 4th DCA 2000) (stating “A material fact, for summary judgment purposes, is a fact that is essential to the resolution of the legal questions raised in the case.”). Since those documents are irrelevant, the dispute regarding them does not preclude this Court from granting MCC’s dispositive motion. II. Statement of Additional Material Facts MCC includes the following Additional Material Facts (“AMF”) in support of its Response in Opposition to Plaintiff’s MSJ: 1. Mr. Perea filed suit against Flicker Construction in an action styled Manuel Perea v. Flicker Construction, Inc. with Case No.: 10-58782-CA-01 (“Underlying Complaint”). A true and correct copy of the Underlying Complaint is attached as Exhibit A (“Ex. A”). 2. The Underlying Complaint states Flicker Construction “was and is a Florida corporation engaged in the business of construction contracting providing construction 2 contracting services to members of the general public.” Ex. A, ¶ 3. 3. According to the Underlying Complaint, “[o]n or about September 6, 2010 [Mr.] Perea was either directly or indirectly retained by Flicker [Construction] to “perform bathroom tile installation at Kosta Seafood & More…, which is a restaurant located within the Vue at Brickell Condominium, 1250 South Miami Avenue in Miami, Miami-Dade County, Florida.” Ex. A, ¶4. 4. The Underlying Complaint further asserts that Mr. Perea “was lawfully within the premises, as described above, and was walking through the restaurant when a spiral staircase used to access a loft within the restaurant fell on top of him.” Ex. A, ¶ 5. 5. The Underlying Complaint also asserts that “[a]s a direct and proximate result of the above;” that is, Mr. Perea’s walking through the restaurant by virtue of his retention by Flicker Construction to install floor tiles as part of Flicker Construction’s contracting services, Mr. Perea “sustained serious injuries, including, but not limited to, foot fractures.” Ex. A, ¶ 6. 6. According to the Underlying Compliant, Flicker Construction “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 [Construction].” Ex. A., ¶ 8. 7. The Underlying Complaint alleges that Flicker Construction, “by and through its employees, agents, apparent agents and/or ostensible agents, negligently caused [Mr.] Perea to suffer personal injuries by and through the following acts: a. Positioning the spiral staircase in place and in an upright position without properly securing it so that it fell on PEREA; b. negligently failing to inspect or maintain the construction site and premises to ensure that the spiral staircase was properly secure and not an unreasonable risk of harm to those lawfully within the premises; c. failing to warn those within the premises, including PEREA, of negligent 3 condition created by the unsecured spiral staircase; d. failing to provide a reasonably safe premises for invitees, including PEREA; and e. other acts of negligence to be determined through discovery. Ex. A, ¶ 9. 8. The Underlying Complaint alleges that “[a]s a direct and proximate result of the negligence of FLICKER, as described above, PEREA suffered injuries, including, but not limited to, a fractured foot.” Ex. A. ¶ 10. III. Statement of Additional Undisputed Material Facts Regarding the Duty to Defend Within the Ambit of Nationwide Mut. Fire Ins. Co. v. Keen, 658 So. 2d 1101, 1103 (Fla. 4th DCA 1995) and Nateman v. Hartford Cas. Ins. Co., 544 So. 2d 1026, 1027 (Fla. 3d DCA 1989) 9. The City of Miami issued the Building Permit for the work at the subject restaurant based on the Permit Application identifying Flicker Construction as the Contractor for the project and signed by Roman Flicker as the Qualifier. A copy of the Certified Permit Application is attached hereto as Exhibit B (“Ex. B”). 10. Flicker Construction is the qualifying contractor identified on the Building and Zoning Permit Form. A copy of the Certified Building and Zoning Permit Form is attached hereto as Exhibit C (“Ex. C”). 11. Flicker Construction is also listed as the permit holder on the Certified Building Certificate. A copy of the Building Certificate is attached as Exhibit D (“Ex. D”). 12. Flicker Construction is identified on the City of Miami’s Fire Penetration Affidavit for the restaurant project. A copy of the Fire Penetration Affidavit is attached as Exhibit E (“Ex. E”). 4 IV. Statement of Additional Undisputed Material Facts Regarding the Duty to Indemnify Testimony of Roman Flicker 13. Roman Flicker was the sole owner of Flicker Construction, Inc. (Flicker Dep. 17:5-7; 23:1-4, Apr. 28, 2017.) The transcript of the deposition of Roman Flicker is attached hereto as Exhibit F (“Ex. F”). He received his general contractor’s license in 1998. (Ex. F, at 18:13-15.) Mr. Flicker pulled the construction permit for the restaurant build-out located at 1250 South Miami Avenue. (Ex. F, at 36:14-23.) 14. Mr. Flicker met with the lessees who wanted to build out the restaurant at the 1250 South Miami Avenue site. (Ex. F, at 36:24-37:1, 37:8-10, 14-16.) Jose Rafael Jimenez was also present at the meeting. (Ex. F, at 37:11-16.) At the meeting, the lessees had architectural plans and discussed that “[t]hey wanted some different flooring here, paint some here, move couple of walls over there . . . what color walls they wanted, what kind of kitchen they wanted, and so on.” (Ex. F, at 40:15-21; 41:17-18.) Mr. Flicker looked at the architectural plans at the meeting, and “the plans were basically for couple walls, and then electrical, plumbing, mechanical, gas lines for the hood tops for the kitchen.” (Ex. F, at 41:4-11, 18-21.) 15. After meeting with the lessees, Mr. Flicker—as the qualifier for Flicker Construction, Inc.—signed the City of Miami Building Department Permit Application for the build-out at the 1250 South Miami Avenue location. (Ex. F, at 48:2-4; 49:4-14; 50:5-10 & Ex. B.) Mr. Flicker testified that Flicker Construction, Inc. is the qualifying contractor identified on the Building and Zoning Permit Form. (Ex. F, at 48:13-18, 44:18-23 & Ex. C.) Flicker is also listed as the permit holder on the Building Certificate. (Ex. F, at 53:22-54:5 & Ex. D.) 16. Mr. Flicker talked to Mr. Jimenez about how the build-out was going, including “[t]hat he was looking for the hoods for the oven—for the kitchen, exhaust hood; basically it was 5 shop talk.” (Ex. F, at 54:15-18, 22-24; 54:25-55:1; 55:8-18.) 17. Mr. Flicker testified that neither he nor Flicker Construction received compensation for the job at the 1250 South Miami Avenue location. (Ex. F, at 56:22-24; 62:14- 20.) Mr. Flicker “pulled the permit, not for fees or anything, just to help [Ralph Jimenez] to start. . . .Basically, tried to help him out, and unfortunately it didn’t work out. I wasn’t being compensated or I wasn’t get paid or nothing else. I wasn’t involved in the build-out.” (Ex. F, at 78:10-79:2.) Mr. Flicker was not paid by Mr. Jimenez and there was no promise to be paid by Mr. Jimenez: “I did this as a favor, that he was acquaintance of mine, kind of friend, so I tried to, you know, start his company and help him out.” (Ex. F, at 81:14-21.) Mr. Jimenez hired the person that hired Mr. Perea to do the tile work. (Ex. F, at 63:17-64:2.) Testimony of Jose Rafael Jimenez 18. Jose Rafael Jimenez is the sole owner of Century Wide Remodeling, Inc. (“Century”), a construction company that Mr. Flicker hired to oversee and perform the work at the Project. (Jimenez Dep. 7:8-18, 12-13, 22, Mar. 29, 2017.) The transcript of the deposition of Jose Rafael Jimenez is attached hereto as Exhibit G (“Ex. G”). 19. Mr. Jimenez “picked up the plans from the—for the job, and I took it to Mr. Flicker, and he—so he can put the numbers on the job. I mean, you know, I wasn’t qualified to do that. You know, he was the contractor, so he’s the one that put the numbers on the job. I couldn’t put the numbers on the job .. . .” (Ex. G, at 16:19-17:1, 11-17.) Jimenez denied that Century was functioning as the general contractor for the project: “The contractor always was Flicker, and we just did the job, and he made sure that everything was done properly. Everything was supervised by Flicker.” (Ex. G, at 61:24-62:7.) 20. Mr. Jimenez confirmed a verbal agreement with Flicker Construction whereby 6 each was paid: “I got paid for what I used to do and that’s it. The rest, he get his part and I get paid.” (Ex. G, at 62:13-63:5.) Century controlled the payment to all the subcontractors for the project. (Ex. G, at 63:6-9.) Mr. Jimenez hired the electrical, A/C company and the tile company. (Ex. G, at 63:20-64:2.) Testimony of Manuel Perea 21. Mr. Perea testified that he came to work on the 1250 South Miami Avenue project through Mr. Jimenez. (Perea Dep. 20:17-19; 20:25-21:13, Apr. 18, 2017.) The transcript of the deposition of Manuel Perea is attached hereto as Exhibit H (“Ex. H”). He was hired by Jimenez to install tile on the floors in the bathrooms and portions of the walls at the Project. (Ex. H, at 25:6-23.) 22. Mr. Perea worked on the tile installation with an individual named Juan Manuel Rivas. (Ex. H, at 33:4-17.) Jimenez paid Perea and Rivas for their work by checks made out to Rivas, who would then cash the checks and give Perea his share of the cash. (Ex. H, at 47:13-23; 49:6-19.) The MCC Policy 23. MCC issued policy number 04-GL-000784399 to Flicker Construction which was effective from March 12, 2010 through March 12, 2011 (“Policy”). A true and correct copy of the Policy is attached to the Affidavit of Jack Jordan, attached as Exhibit I (“Ex. I”). 24. The MCC Policy includes two exclusions at issue in this case: the Workers’ Compensation Exclusion and the Employer’s Liability Exclusion: 2. Exclusions This insurance does not apply to: *** d. Workers’ Compensation And Similar Laws 7 Any obligation of the insured under a workers’ compensation, disability benefits or unemployment compensation law or any similar law. e. Employer’s Liability “Bodily injury” to: (1) An “employee” of the insured arising out of and in the course of: (a) Employment by the insured; or (b) Performing duties related to the conduct of the insured’s business; or (2) The spouse, child, parent, brother or sister of that “employee” as a consequence of Paragraph (1) above. This exclusion applies whether the insured may be liable as an employer or in any other capacity and to any obligation to share damages with or repay someone else who must pay damages because of the injury. This exclusion does not apply to liability assumed by the insured under an “insured contract”. (Ex. I.) V. LEGAL STANDARDS A. Standard for Summary Judgment Florida Rule of Civil Procedure Rule 1.510(c) provides that summary judgment shall be rendered in favor of the moving party if “the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Since the interpretation of an insurance policy is a question of law to be decided by the court, coverage questions, such as are at issue here, are typically decided by summary judgment. See Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985). 8 B. Standard for Insurance Contract Interpretation “Insurance contracts are construed according to their plain meaning.” Garcia v. Federal Ins. Co., 969 So. 2d 288, 291 (Fla. 2007). For this reason, a court’s inquiry always “begins with a review of the plain language of the insurance policy as bargained for by the parties.” Koikos v. Travelers Ins. Co., 849 So. 2d 263, 266 (Fla. 2003). Stated simply, “if a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision.” Taurus Holdings, Inc. v. U.S. Fid. and Guar. Co., 913 So. 2d 528, 532 (Fla. 2005). Merely because an insurance policy is a complex instrument does not automatically render its terms ambiguous. See State Farm Fire & Cas. Co. v. Oliveras, 441 So. 2d 175, 178 (Fla. 4th DCA 1983). Courts should apply the plain meaning of words and phrases used in a policy of insurance without resorting to the doctrine of reasonable expectations. See, e.g., Southeastern Fire Ins. Co. v. Lehrman, 443 So. 2d 408, 409 (Fla. 4th DCA 1984). “Courts may not rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.” Intervest Const. of Jax, Inc. v. Gen. Fid. Ins. Co., 133 So. 3d 494, 497 (Fla. 2014). Under Florida law, the duty to defend is traditionally determined by comparing the allegations in the underlying complaint to the policy. Higgins v. State Farm Fire and Cas. Co., 894 So. 2d 5, 9-10 (Fla. 2004). Under those circumstances an insurer must defend only when the initial pleadings bring the case within coverage. Pioneer Nat’l Title Ins. Co. v. Fourth Commerce Props. Corp., 487 So. 2d 1051, 1054 (Fla. 1986). The duty to defend is broader than, and distinct from, the duty to indemnify; thus, where there is no duty to defend, correspondingly, there is no duty to indemnify. See Fun Spree Vacations, Inc. v. Orion Ins. Co., 659 So. 2d 419, 421 (Fla. 3d DCA 1995) (citations omitted). 9 VI. MCC Had No Duty To Defend Of Indemnify Flicker Construction A. No Duty To Defend or Indemnify Existed Based On The Underlying Complaint’s Allegations The Plaintiff’s dispositive motion concedes MCC’s Policy specifically excludes coverage for any obligation of the insured under a “workers compensation, disability benefits or unemployment compensation law or any similar law.” See Motion, Page 5. Likewise, the Plaintiff also admits MCC’s Policy precludes coverage for “bodily injury” to an “employee” of Flicker Construction arising out of and in the course of performing duties related to the conduct of Flicker Construction. See Motion at Page 11. Courts have previously relied on these exclusions to hold MCC has no duty to defend or indemnify insureds. For instance, in Mid-Continent Cas. Co. v. Arpin & Sons, LLC, 261 F. Supp. 3d 1245 (S.D. Fla. 2017), the United States District Court for the Southern District of Florida summarized how MCC’s insured, Arpin, acted as the general contractor on a project where Lee Ellis Blue was working when he was electrocuted, causing him severe injuries including the amputation of his arms. Blue brought a state court complaint against Arpin alleging that itwas negligent in performing its duties as the Project’s general contractor. See Arpin & Sons, LLC, 261 F. Supp. 3d at *2. Like here, MCC argued on summary judgment in the subsequent coverage action that its policy did not require it to defend or indemnify Arpin in the underlying state court litigation. Id. at *3. Recognizing that “[u]nder Florida law, a contractor who sublets part of its work to a subcontractor develops a statutory employment relationship with the employees of that subcontractor,” and that “[s]tatutory employees have been treated identically to actual employees in relation to standard employee exclusion clauses,” the Court determined that “Florida law requires that I construe the Policy’s workers’ compensation 10 exclusion and employer’s liability exclusion as applying to Arpin’s actual and statutory employees.” Id. at *5-6. Regarding the duty to defend, the Court held that the allegations in the underlying complaint – including that Arpin “‘would act as the General Contractor and Arpin would procure all building permits,’“ and that Arpin breached the duties “allegedly owed Blue as the Project’s general contractor’“ – established as a matter of law that “Arpin was ‘legally obligated to secure the payment of medical and disability benefits for any employee who [was] injured at work,’ Slora v. Sun & Fun Fly-In, Inc., 173 So. 3d 1099, 1102 (Fla. 2d DCA 2015) – i.e., Arpin was the statutory employer of contractors working on the Project, including Blue.” Id. at *7-9. The Court found that “Blue’s allegations against Arpin are therefore ‘cast solely and entirely’ within the [policy’s] workers’ compensation and employer’s liability exclusions, and ‘are subject to no other reasonable interpretation,’“ and accordingly held that “MCC has no duty under the Policy to defend Arpin in the state-court action.” Id. at *9 (quoting Luhman v. Covington Specialty Ins. Co., CASE NO. 16-20044-CIV-GOODMAN, 2017 WL 850178, at *5 (S.D. Fla. March 2, 2017)). Despite the Policy’s unambiguous exclusions, the Plaintiff in the action before this Court has erroneously asserted they don’t preclude coverage based on Morales v. Zenith Ins. Co., 152 So. 3d 557 (Fla. 2014). In reality, that decision establishes MCC had no duty to defend Flicker Construction. In Morales, the court considered a question certified to it by the United States Court of Appeals for the Eleventh Circuit regarding whether a workers’ compensation exclusion excluded coverage for a tort judgment against the insured. See Morales, 152 So. 3d at 559. In that case’s underlying action the estate of a deceased employer brought a wrongful death action against the insured employer. Id., at 560. Because the Workers’ Compensation Law provided the 11 exclusive remedy for the estate’s claim, the estate had no right to recover in tort. Id. at 561. Nevertheless, the estate obtained a default judgment against the employer and, when the insurer refused to pay the judgment, the estate brought suit against the insurer. Id. In concluding that the workers’ compensation exclusion applied to exclude coverage of the tort judgment, the Morales court distinguished the appellate court’s decision in in Wright v. Hartford Underwriters Ins. Co., 823 So. 2d 241, 243 (Fla. 4th DCA 2002). In Wright, “the Fourth District concluded that an insurance company could not rely on a workers’ compensation exclusion to avoid coverage of a settlement judgment entered in an injured employee’s civil suit against his employer because the judgment was not an ‘obligation imposed by workers’ compensation law.’” Morales, 152 So. 3d at 562. Significantly, Wright had “alleged that his injuries were the result of a fellow employee’s gross negligence, for which his employer was vicariously liable…[,] implicating a statutory exception to workers’ compensation immunity that allowed Wright to pursue a civil remedy.” Id. By contrast, nothing in the estate’s allegations in Morales removed its claim from the exclusivity of the Workers’ Compensation Law. Id. Reviewing this action’s Underlying Complaint shows it contains enough information to hold Flicker Construction was Mr. Perea’s statutory employer. First, Mr. Perea’s Underlying Complaint is brought solely against Flicker, relies entirely on the breach of duties for which Flicker Construction allegedly owed Flicker as the project’s contractor and demands judgment solely against Flicker. (AMF ¶¶ 1-6.) Second, Mr. Perea alleges that Flicker Construction, a company in the business of construction contracting, retained Mr. Perea to perform bathroom tile installation at the location of the project at issue. (AMF ¶¶ 2, 3, 5.) Third, Mr. Perea alleges that while lawfully on the premises, and while such premises were under Flicker’s control, Mr. Perea sustained injuries to his foot when a spiral staircase fell on him. (AMF ¶¶ 4-6.) Fourth, Mr. 12 Perea alleges that at the time the work on the premises was being performed it was at Flicker’s direction and under Flicker’s supervision. (AMF ¶ 6.) Fifth, Mr. Perea alleges four specific breaches of Flicker’s duties to Perea for which were the direct and proximate result of Perea’s injuries – duties that Flicker would only have as the general contractor in control of the job site – including (1) failing to properly secure the staircase, (2) failing to ensure no unreasonable risk of harm, (3) failing to warn of the unsecured staircase, and (4) failing to provide reasonably safe premises. (AMF ¶ 7.). Accordingly, because the facts alleged in the Underlying Complaint do not “fairly and potentially bring the suit within policy coverage,” there is no duty to defend and, in turn, no duty to indemnify Flicker for Underlying Action. See Jones v. Fla. Ins. Guar. Ass’n, Ins., 908 So. 2d 435, 442-43 (Fla. 2005). Therefore, MCC is entitled to summary judgment in its favor and against Plaintiff that is has no duty to defend Flicker Construction for the Underlying Complaint. B. No Duty To Defend or Indemnify Existed Based On The Actual Facts Even though the duty to defend is usually determined by comparing the underlying complaint to the policy, the Florida Supreme Court has noted that “there are some natural exceptions to [the eight corners rule] where an insurer’s claim that there is no duty to defend is based on factual issues that would not normally be alleged in the underlying complaint.” Higgins, 894 So. 2d at 10 n.2. “[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.” Addison Ins. Co. v. 4000 Island Blvd. Condo. Ass’n, 721 Fed. Appx. 847, 854 (11th Cir. 2017) (quoting Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1323 (11th Cir. 2014)). Florida’s appellate courts have consequently that a “carrier is relieved of defending” “if uncontroverted evidence places the claim outside of coverage.” Nationwide Mut. 13 Fire Ins. Co. v. Keen, 658 So. 2d 1101, 1103 (Fla. 4th DCA 1995). See also Nateman v. Hartford Cas. Ins. Co., 544 So. 2d 1026, 1027 (Fla. 3d DCA 1989) (“mere allegations of the plaintiff’s petition may not create an obligation on the part of the insurer to defend where no such obligation previously existed.” Here, the public records uncontrovertibly show Flicker Construction was the general contractor on the site upon which Mr. Perea’s injuries are alleged to have occurred. Flicker Construction is specifically named as the contractor for the project on the Building Permit. (AMF, ¶ 9; Ex. B.) Flicker Construction is specifically named as the qualifying contractor on the Building and Zoning Permit Form. (AMF, ¶ 10; Ex. C.) Flicker Construction is also specifically named as the permit holder on the Building Certificate. (AMF, ¶ 11; Ex. D.) Flicker Construction is also specifically named on the City of Miami’s Fire Penetration Affidavit for the restaurant project. (AMF, ¶ 12; Ex. E.) This Court may take judicial notice of “[f]acts that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.” Fla. Stat. § 90.202(12); accord Florida Accountants Association v. Dandelake, 98 So. 2d 323, 327 (Fla. 1957) (“This court takes judicial notice of the public records of this state.”). While these public records were conveniently not alleged in the Underlying Complaint, these uncontroverted facts establish Flicker Construction as the general contractor, were known to Mr. Perea at the time of his pleading the Underlying Complaint and clearly place his claim outside of coverage. Such facts fall perfectly within the tenets of Keen and Nateman and should be considered in this Court’s analysis of the duty to defend – as Plaintiff should not be able to avoid the consequences of Flicker Construction’s role as the general contractor. Just as the Court determined that Arpin was the statutory employer of contractors 14 working on the Project, Mr. Perea’s allegations against Flicker are clearly “cast solely and entirely” within the MCC policy’s workers’ compensation and employer’s liability exclusions, and “are subject to no other reasonable interpretation.” Luhman, 2017 WL 850178, at *5. To the extent the Court disagrees that MCC owes Flicker Construction no duty to defend; the actual facts unequivocally support that MCC owes no duty to indemnify Flicker Construction. In such an event, MCC’s discussion regarding the public records establishing Flicker Construction as the general contractor – and preclusion of coverage – would apply equally to a consideration of the duty to indemnify. That is, the fact that Flicker Construction is specifically named as the contractor for the project on (1) the Building Permit, (2) the Building and Zoning Permit Form, (3) the Building Certificate, and (4) the City of Miami’s Fire Penetration Affidavit cannot be ignored. (AMF, ¶¶ 9-12; Ex.’s B-E.) Additionally, Mr. Flicker testified he was the owner of Flicker Construction, received his general contractor’s license in 1998 and pulled the permit for the project. (AMF, ¶ 13.) Mr. Flicker further testified that Flicker Construction was the qualifying contractor and permit holder for the project – and authenticated the public records described herein. (AMF, ¶ 15; Ex.’s B-D.) Mr. Flicker also testified that he reviewed and discussed the architectural plans with the restaurateurs before the build out and discussed the build out with Mr. Jimenez. (AMF, ¶¶ 14, 17.) This was substantiated by Mr. Jimenez, the owner of Century Wide Remodeling, Inc. (“Century”), who testified that Mr. Flicker hired him to perform the work on the project – although Mr. Jimenez stated that Mr. Flicker was the contractor and “put the numbers on the job.” (AMF, ¶¶ 18, 19.) Mr. Jimenez specifically denied being the general contractor for the project: “The contractor always was Flicker, and we just did the job, and he made sure that everything was 15 done properly. Everything was supervised by Flicker.” (AMF, ¶ 19.) Despite pulling the permits, Mr. Flicker testified that he only did it to help out Mr. Jimenez and no money was exchanged, which is disputed by Mr. Jimenez. (AMF, ¶¶ 17, 20.) Mr. Flicker and Mr. Jimenez both testified that Mr. Jimenez hired Mr. Perea or hired the company for which Mr. Perea worked. (AMF, ¶¶ 17, 20.) Mr. Perea testified that he was hired to lay the tiles for the project and was paid for his work. (AMF, ¶¶, 21, 22.) Moreover, under Florida Statutes § 489.127, a “certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, may not apply for or obtain a building permit for construction work unless [that] contractor has entered into a contract to make improvements to, or perform the contracting at, the real property specified in the application or permit.” Fla. Stat. § 489.127(4)(c). With Flicker Construction clearly identified as the general contractor – and clearly the recipient of a building permit from the City of Miami – it must be assumed as a matter of law that Flicker entered into a contract for the improvements at the restaurant. Further, a contractor is prohibited from agreeing to or knowingly allowing “his or her certification number or registration number to be used by a person who is not certified or registered.” Fla. Stat. § 489.127(4)(a) and (b). A first violation of these provisions is a first degree misdemeanor; any subsequent violation is a third degree felony. See Fla. Stat. § 489.127(4)(d). By submitting the application for the Building Permit, Flicker Construction represented that it had entered into a contract to perform the contracting at the restaurant and that it was not simply using its certification to obtain a permit for an unlicensed contractor. Significantly, construction at the project could not have commenced without that permit. Fla. 16 Stat. § 489.127(1)(h). Any argument by Plaintiff that Flicker Construction was not the general contractor is nonsensical. As a matter of law, by using “his license as a general contractor in order to obtain the construction permits,” Flicker Construction “assumed the legal position of general contractor for the job.” Orama v. Dunmire, 552 So. 2d 924, 925 (Fla. 1st DCA 1989). (“…an agreement was made with the owner whereby Dunmire would use his license as a general contractor in order to obtain the construction permits. Dunmire thus assumed the legal position of general contractor for the job.”). “There is… a fundamental equitable principle that ‘no one shall be permitted to profit by his own fraud, or take advantage of his own wrong, or found any claim upon his own iniquity, or profit by his own crime.’” Ashwood v. Patterson, 49 So. 2d 848, 850 (Fla. 1951). Thus, “[o]ne who engages in a fraudulent scheme forfeits all right to the prosecution of a law suit.” Horjales v. Loeb, 291 So. 2d 92, 93 (Fla. 3d DCA 1974). In Horjales, the court upheld a dismissal where the plaintiff admitted that his testimony was directly contrary to that given in another proceeding and the change in testimony was made for the purpose of securing coverage under an insurance liability policy. See also Camejo v. Department of Business and Professional Regulation, 812 So. 2d 583, 583–84 (Fla. 3d DCA 2002) (contractor could not avoid accountability for work poorly performed pursuant to building permits he never signed because the disciplinary statute “does not carve out an exception for qualifying agents who fail to maintain control over the use of their certificates”). To hold that Jimenez rather than Flicker Construction was the “general contractor would be tantamount to judicial approval of illegal actions by [Flicker] in using his license as a sham.” Orama, 552 So. 2d at 925. Having assumed the role of general contractor for purposes of securing a permit for the restaurant construction project, Flicker Construction may not now deny its role as general 17 contractor to secure insurance coverage for an injury occurring in the course of that project. As such, MCC is entitled to summary judgment in its favor and against Plaintiff that is has no duty to indemnify Flicker Construction for the underlying judgment. VIII The Plaintiff’s Other Arguments Lack Merit A. This Court Did Not Previously Hold A Duty To Defend Exists Plaintiff erroneously alleges he is seeking “a partial summary judgment order on an issue of law which the Court already determined in Plaintiff’s favor: that Defendant, MCC, owed Flicker Construction a duty to defend it from the underlying Perea v. Flicker Construction lawsuit.” Motion, Page 2. If the Court had actually issued that ruling in September of 2019 there would have been no reason for the Plaintiff to subsequently file a dispositive motion on that exact issue. In actuality, until September 20, 2019, the operative complaint did not even seek a ruling regarding the duty to defend. In September of 2019 the Plaintiff filed a four-count complaint against Roman Flicker and MCC. See The Plaintiff’s Initial Complaint. The Initial Complaint’s sole count against MCC sought a judgment that MCC beached it duty to indemnify Flicker Construction, Inc. See id. Years later, and not until shortly prior to the hearing on MCC’s dispositive motion, the Plaintiff sought leave to file an amended complaint