Case: 18-14841 Date Filed: 09/06/2019 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14841
Non-Argument Calendar
________________________
D.C. Docket No. 0:17-cv-61589-KMW
ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY,
Plaintiff - Appellee,
versus
UNITED CONSTRUCTION ENGINEERING, INC.,
Defendant,
CARLOS MARROQUIN LOPEZ,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 6, 2019)
Before MARTIN, BRANCH, and DUBINA, Circuit Judges.
Case: 18-14841 Date Filed: 09/06/2019 Page: 2 of 9
PER CURIAM:
This declaratory judgment action presents a straightforward question of
contract interpretation: Did the district court err in finding that an insurance policy
did not cover the injuries sustained by a worker in the course of his job, and
therefore, he was not owed compensation by the insurer? After review, we
conclude that compensation for the worker’s injuries falls under the Florida
workers’ compensation scheme and not the insurance policy; hence, we affirm.
I. BACKGROUND
Plaintiff/Appellee Endurance American Specialty Insurance Company
(“Endurance”) issued an insurance policy to United Construction Engineering, Inc.
(“UCE”) for general commercial liability. (R. Doc. 1-2). However, the policy
specifically excludes injuries that would be covered by a workers’ compensation
claim (henceforth referenced as “workers’ compensation exclusion”) (R. Doc. 1-2
at 14). It also excludes bodily injuries of an employee of the insured when the
employee is injured in the course of his employment with the insured or is
otherwise performing the insured’s normal duties (“employee exclusion”).
Id.
AC1 Supply executed a contract with UCE for UCE to perform a roof repair
on a Miami warehouse. UCE hired a subtractor, Enzo Enrique Moreno Castellanos
(“subcontractor”), who in turn hired defendant Carlos Marroquin Lopez (“Lopez”)
2
Case: 18-14841 Date Filed: 09/06/2019 Page: 3 of 9
to perform the work. Lopez estimated the repair would take at least a week and
accepted a rate of $120 per day from the subcontractor. On the second day of the
project, Lopez slipped and fell into a pool of hot tar on the job site. Neither UCE
nor the subcontractor was carrying workers’ compensation insurance at that time.
After Lopez sued UCE in state court for his injuries, Endurance began
defending UCE under reservation of rights. Endurance then filed this declaratory
judgment action in federal court, seeking a declaration that it had no duty to defend
or indemnify UCE in the state suit, and that Lopez’s suit was barred under the
policy exclusions for injuries that should be covered by workers’ compensation as
well as injuries that were incurred by the insured’s employees in the course of their
employment.
The district court, over Lopez’s objections, adopted a magistrate judge’s
report and recommendation without further comment. (R. Doc. 47.) The district
court found that under Florida law, workers’ compensation was “the exclusive
remedy available to an injured employee for the negligence of his employer” under
these circumstances, and that Lopez was an employee under the terms of the
Florida workers’ compensation statute. (R. Doc. 43 at 5). Therefore, either the
contractor or the subcontractor was liable for the payment of the compensation
under the statutory scheme. Under Florida law, if the subcontractor failed to carry
3
Case: 18-14841 Date Filed: 09/06/2019 Page: 4 of 9
workers’ compensation insurance, then the liability shifted to UCE. The district
court also rejected Lopez’s argument that he was a “casual worker” under Florida
law who would not be a covered employee under the Florida statute. Additionally,
the district court found that the policy’s roofing operations endorsement (R. Doc.
1-2 at 52) had no bearing on the scope of the policy’s coverage. Finally, the
district court accepted Endurance’s argument that coverage was further barred
because the policy, in addition to excluding workers’ compensation obligations,
also excluded bodily injuries arising out of the course of employment by the
insured because under Florida law, Lopez was an employee, policy language to the
contrary notwithstanding. (R. Doc. 1-2 at 14).
Lopez then perfected this appeal.
II. DISCUSSION
A district court’s grant of summary judgment is reviewed de novo. Weeks v.
Harden Mfg. Corp.,
291 F.3d 1307, 1311 (11th Cir. 2002).
A. Lopez’s status as a statutory employee
Lopez’s primary argument is that he was, in fact, a temporary employee
under the terms of the policy and that the district court erred when interpreting
Florida law that superseded the policy definition. Lopez argues that the varying
interpretations of “employee” in the policy create an ambiguity that should be
4
Case: 18-14841 Date Filed: 09/06/2019 Page: 5 of 9
resolved against the insurer or the policy drafter, and as such, the employee
exclusion does not apply. An ambiguity arises, Lopez insists, because the district
court’s interpretation of “employee” in the policy effectively rewrites the policy to
read “statutory employee.”
This distinction carries legal significance because if Lopez is not an
“employee” under the terms of the policy, then the employee exclusion in the
policy is inapplicable. However, if Lopez is an “employee” for policy purposes by
operation of law, then the exclusion applies, and his claim is barred.
We see no need to engage with Lopez’s entire argument because it fails to
address and overcome the deficiencies the district court noted with the workers’
compensation exclusion that independently causes Lopez’s claim to fail.
Assuming, arguendo, that the district court erred in applying the statutory
definition of employee to the insurance policy, that error would have no effect on
the analysis of the workers’ compensation exclusion, which operates as an
independent basis for Endurance to deny the claim. As the district court noted, the
applicability of the workers’ compensation exclusion hinges on whether a worker
is covered by Florida’s worker compensation laws. Fla. Stat. §§ 440.10 (2019). In
this case, Lopez is covered. See Fla. Stat. 440.02(15)(a) (2015) (defining
“employee” for workers’ compensation eligibility as “any person who receives
5
Case: 18-14841 Date Filed: 09/06/2019 Page: 6 of 9
remuneration from an employer for the performance of any work or service.”).
Lopez is unable to explain how the clear and unambiguous language of the
workers’ compensation exclusion means anything other than what it says: that the
insured’s obligations arising out of a workers’ compensation law are not covered
under the policy. This exclusion does not hinge on any distinctions between
statutory employees, temporary workers, or casual workers. Lopez’s only effort at
challenging the workers’ compensation exclusion is arguing that factual
ambiguities – which cannot be resolved on summary judgment – preclude a finding
that UCE would have been financially obligated to Lopez under workers’
compensation.
More specifically, Lopez argues that the district court erred in determining
that a contractor/subcontractor relationship existed as a matter of law between the
subcontractor and Lopez. Lopez appears to argue that UCE may have not owed
him an obligation under Florida workers’ compensation statute, which would mean
that the workers’ compensation exclusion would be inapplicable to his claim.
(Brief for Appellant at 29).
In advancing this argument, Lopez takes express disagreement with the
district court’s findings in footnote 2 of its order. (R. Doc. 43 at 2, n. 2). There,
the district court addressed the argument that UCE lacked evidence of the
6
Case: 18-14841 Date Filed: 09/06/2019 Page: 7 of 9
existence of a subcontractor relationship. It found that because the record showed
– conclusively – that UCE entered into a contract with the subcontractor, who then
hired Lopez to perform the work, that Lopez’s denials of such a relationship lacked
any record evidence and were due to be ignored for purposes of creating a dispute
that would preclude summary judgment.
On appeal, Lopez presents no new evidence that would justify reversing
these findings. As the district court noted, mere denials, lacking any supporting
evidence, will not be enough to defeat a well-founded summary judgment motion.
Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact cannot be or is genuinely
disputed must support this assertion by citing to particular parts of materials in the
record.”). Lopez has not done this, so his argument fails.
B. Applicability of the Roofing Operations Endorsement
Lopez next argues that a separate endorsement to the policy entitled “roofing
operations” should operate to provide coverage since Lopez sustained his injury
while performing roofing operations. The district court rejected this argument
because it found that none of the language in the endorsement altered the
exclusions in the beginning of the policy that the district court viewed as being
dispositive to the case.
7
Case: 18-14841 Date Filed: 09/06/2019 Page: 8 of 9
On appeal, Lopez does not advance any discernable new arguments
explaining where the district court erred. In fact, the roofing endorsement contains
no language regarding who will be covered under the policy. (R. Doc. 1-2 at 52–
53). Instead, it lists certain terms and conditions regarding how roofing operations
must be performed in order to receive insurance coverage. Only section (B)(4)
provides any clarification regarding the scope of coverage, stating that failure to
meet the terms of the endorsement will lead to “any resulting property damage to
any building or structure or its contents [not being] covered by this policy.” (Id.)
The last sentence of the endorsement reads, “All other terms and conditions of this
policy remain unchanged.” (Id.) Lopez fails to explain how or why the workers’
compensation exclusion or employee exclusion would somehow be altered by the
roofing operations endorsement, which is one of numerous endorsements and
exclusions attached to the policy covering a wide variety of circumstances.
Lopez’s proffered interpretation effectively uses the endorsement to override the
exclusions that operate as a bar to his claim. This interpretation is unsupported by
any text in the endorsement. Accordingly, we conclude that the district court
correctly declined to adopt his interpretation.
C. Lopez’s status as a casual worker
8
Case: 18-14841 Date Filed: 09/06/2019 Page: 9 of 9
Finally, Lopez takes exception to the district court’s determination that he
was not a “casual worker” under the Florida statute because his project was
estimated to take around a week and cost $840, which exceeded the statutory limits
of less than 10 working days and less than $500.
Lopez argues the district court erred because he only earned $120 per day
and was injured on his second day on this job. This has no legal significance
because the statutory definition is based on what the employment terms are
anticipated to be, not on what comes to fruition. Fla. Stat. § 440.02(5). Lopez
complains that this system is murky given his practical status as a day laborer. Be
that as it may, he cites no statute or case law for the proposition that the district
court erred in applying the plain language of the statute in determining that the
anticipated value of the project exceeded the statutory limits for a casual employee.
Because we conclude from the record that the district court did not err when
determining that Lopez’s claims were barred under the terms of the policy, we
affirm its grant of summary judgment in favor of Endurance.
AFFIRMED.
9
