Vozzcom v. Great American Ins. Co. of New York , 666 F. Supp. 2d 1332 ( 2009 )

666 F.Supp.2d 1332 (2009)

VOZZCOM, INC., a Florida corporation, Plaintiff,
v.
GREAT AMERICAN INSURANCE COMPANY OF NEW YORK d/b/a Great American Insurance, a foreign profit corporation, Defendant.

Case No. 09-60922-CIV.

United States District Court, S.D. Florida.

September 18, 2009.

Jonathan Benjamin Lewis, Paul Octavio Lopez, Tripp Scott, Fort Lauderdale, FL, for Plaintiff.

Gary I. Khutorsky, Litchfield Cavo, Ft. Lauderdale, FL, for Defendant.

ORDER

CECILIA M. ALTONAGA, District Judge.

THIS CAUSE came before the Court on Cross-Motions for Summary Judgment filed by Plaintiff, Vozzcom, Inc. ("Vozzcom") [D.E. 22]; and Defendant, Great American Insurance Company ("Great American") [D.E. 21]. The Court has carefully considered the parties' written submissions and applicable law.

I. BACKGROUND

This case arises from a dispute over insurance coverage. Plaintiff, Vozzcom, was issued an employment practices liability policy by Beazley Insurance Company ("Beazley"). (See Great American's Motion for Summary Judgment ("Great American's Mot.") at 3).^[1] This policy includes an endorsement covering defense costs incurred by Vozzcom in lawsuits by its employees for violations of wage and hour laws. (See Order Granting and Part and Denying in Part Motions for Summary Judgment ("Order on Summary Judgment") [D.E. 58], Vozzcom v. Beazley Ins. Co. ("Vozzcom I"), Case No. 08-62044-Civ-Altonaga).^[2] The policy period ran from January 1, 2007 through January 1, 2008.

On June 4, 2007, a former Vozzcom employee, Claudio Teixeira ("Teixeira"), filed a lawsuit against Vozzcom. Teixeira had been employed by Vozzcom from approximately November 2006 until April 2007, performing cable installation and related services for Vozzcom. In his lawsuit, Teixeira claimed that during his employment with Vozzcom, Vozzcom engaged in violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Beazley secured defense counsel for Vozzcom and paid Vozzcom's legal bills defending the Teixeira claim.

The following year, rather than renew its policy with Beazley, Vozzcom obtained a similar employment practices liability policy from Great American. The Great American policy had a coverage period from January 1, 2008 through December 31, 2008.

On January 17, 2008, another former Vozzcom employee, Francisco DaSilva ("DaSilva"), filed suit against Vozzcom alleging FLSA violations. DaSilva worked for Vozzcom between September 2006 and April 2007, and, like Teixeira, had performed cable installation and related services.

Vozzcom notified Beazley about the DaSilva claim, seeking coverage for the defense of the lawsuit. Beazley denied coverage on the ground that the DaSilva claim was commenced after the expiration of the Beazley policy period. Vozzcom then notified Great American of the claim, again seeking coverage for the defense of the claim. Great American denied coverage on the ground that the claim "arose" during the Beazley coverage period.

The policy issued to Vozzcom by Great American contains certain relevant provisions:

Section I. Insuring Agreements

A. The Insurer shall pay on behalf of the Insured Persons all Loss which the Insured Persons shall be legally obligated to pay as a result of a Claim (including an Employment Practices Claim or a Securities Claim) first made against the Insured Persons during the Policy Period or the Discovery Period for a Wrongful Act, except for any Loss which the Company actually pays as indemnification.

B. The Insurer shall pay on behalf of the Company all Loss which the Insured Persons shall be legally obligated to pay as a result of a Claim (including an Employment Practices Claim or a Securities Claim) first made against the Insured Persons during the Policy Period or the Discovery Period for a Wrongful Act, but only to the extent the Company is required or permitted by law to indemnify the Insured Persons.

* * *

A. "Claim" shall mean:

(1) a written demand for monetary or non-monetary relief made against any Insured and reported to the Insurer pursuant to Section VIII. A.(1); or

(2) a civil, criminal, administrative or arbitration proceeding made against any Insured seeking monetary or non-monetary relief and commenced by the service of a complaint or similar pleading, the return of an indictment, or the receipt or filing of notices of charges or similar document, including any proceeding initiated against any Insured before the Equal Employment Opportunity Commission or any similar governmental body.

* * *

O. "Related Wrongful Acts" shall mean Wrongful Acts which are logically or causally connected by reason of any common fact, circumstance, situation, transaction, casualty, event or decision.

* * *

R. "Wrongful Act" shall mean:

(1) any actual or alleged act, omission, error, misstatement, misleading statement, neglect or breach of duty, or Employment Practices Wrongful Act, by any Insured Person in their capacity with the Company;

(2) any actual or alleged act, omission, error, misstatement, misleading statement, neglect or breach of duty by the Insured Entity, but only with respect to Insuring Agreement I.C;....

* * *

Section IV. Exclusions

The Insurer shall not be liable to make any payment for Loss in connection with any Claim made against any Insured:

* * *

B. based upon, arising out of, relating to, directly or indirectly resulting from or in consequence of, or in any way involving any Wrongful Act or Related Wrongful Act or any fact, circumstance or situation which has been the subject of any notice or Claim given under any other policy of which this Policy is a renewal or replacement;

C. based upon, arising out of, relating to, directly or indirectly resulting from or in consequence of, or in any way involving any prior and/or pending civil, criminal, administrative or investigative proceeding involving the Company and/or and Insured Persons as of the date stated in Item 7 of the Declarations, or any fact, circumstance or situation underlying or alleged in such proceeding;....

* * *

AMENDMENT TO SECTION VI. RETENTION

It is understood and agreed that Section VI. B. of the Policy is hereby deleted and replaced with the following:

Section VI.B.

More than one Claim involving the same Wrongful Act or Related Wrongful Acts of one or more Insureds shall be considered a single Claim. All such Claims constituting a single Claim shall be deemed to have been made on the earlier of the following dates: (1) the earliest date on which any such Claim was first made; or (2) the earliest date on which any such Wrongful Act or Related Wrongful Act was reported under this Policy or any other policy providing similar coverage.

(Great American Policy [D.E. 21-8]) (all emphasis appearing in the original).

After both Beazley and Great American denied coverage, Vozzcom retained counsel and defended the DaSilva claim at considerable expense. Vozzcom then filed suit against Beazley and Great American seeking a declaratory judgment as to each insurer's obligations under their respective policies, as well as a claim for breach of contract against both insurers. (Vozzcom I). Both Beazley and Great American moved for summary judgment, and Vozzcom filed a cross-motion for summary judgment against both Defendants. The Court granted summary judgment in favor of Vozzcom as to Beazley, and against Vozzcom as to Great American.

On January 5, 2009, while Vozzcom I was pending, Vozzcom was sued by another former employee, Richard Elliot ("Elliot"), also for alleged FLSA violations ("Elliot"). (See Great American's Mot. at 4-5). At the time the Elliot action was filed, counsel for plaintiff filed a "Notice of Refiled or Similar Action." (See id. at 5). The Notice stated that the claims in Elliot are similar to the claims in the DaSilva action. (See id.). The complaint in Elliot alleged that Elliot was employed by Vozzcom as a non-exempt hourly or piece rate worker performing the duties of a cable technician from January 2006 until approximately July 2006. (See id.). The allegations in the Elliot complaint are virtually identical to those in the Teixeira and DaSilva lawsuits. (See id.).

Vozzcom sought coverage for the Elliot claim from Great American, and Great American denied coverage on the basis that the Elliot claim was related to the earlier claims, and thus fell outside Great American's coverage. (See id.). Vozzcom filed this suit for declaratory relief against Great American (Vozzcom II), seeking a determination that the Elliot claim is covered under the Great American policy. Vozzcom and Great American each now move for summary judgment.

II. LEGAL STANDARD

Summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed.R.Civ.P. 56(c). In making this assessment, the Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party," Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997), and "must resolve all reasonable doubts about the facts in favor of the non movant." United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1558 (11th Cir.1990).

"By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. 2505. Likewise, a dispute about a material fact is a "genuine" issue "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

"For factual issues to be considered genuine, they must have a real basis in the record ... mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.2005) (citations omitted). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548. In those cases, there is no genuine issue of material fact "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. 2548.

III. ANALYSIS

Great American raises five principal arguments in support of summary judgment, three of which ((3), (4), (5)) are subsumed under the first argument: (1) the policy does not afford coverage for the Elliot claim; (2) this action is barred by the doctrines of collateral estoppel and res judicata; (3) the Elliot claim was not first made during the policy period; (4) the Elliot claim is excluded under the prior notice exclusion (Exclusion B) of the policy; and (5) the Elliot claim is excluded under the prior litigation exclusion (Exclusion C) of the policy. In support of its Cross-Motion, Vozzcom argues (1) the action is not barred by collateral estoppel; (2) the Retention Amendment does not alter the date the Elliot claim was "first made;" and (3) Great American's prior notice and prior litigations exclusions do not preclude coverage for Elliot. The parties agree that no facts are in dispute, and despite the listing of "issues," the only necessary question to address is whether the Elliot claim is covered under the Great American policy. The answer to that question hinges upon whether the Elliot claim is "related," in accordance with the policy language and restrictions, to the Teixeira and DaSilva claims.

"Under Florida law,^[3] an insurance policy is treated like a contract, and therefore ordinary contract principles govern the interpretation and construction of such a policy. As with all contracts, the interpretation of an insurance contract is a question of law to be determined by the court." Fabricant v. Kemper Independence Ins. Co., 474 F.Supp.2d 1328, 1330 (S.D.Fla. 2007) (citing Graber v. Clarendon Nat'l Ins. Co., 819 So.2d 840, 842 (Fla. 4th DCA 2002)). "Florida courts' have said again and again that insurance contracts must be construed in accordance with the plain language of the policy." Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 735 (Fla.2002). Furthermore, "[a] court should read an insurance policy as a whole, and endeavor to give each provision its full meaning and operative effect." Anderson v. Auto-Owners Ins. Co., 172 F.3d 767, 769 (11th Cir.1999) (citing Dahl-Eimers v. Mutual of Omaha Life Ins. Co., 986 F.2d 1379, 1381 (11th Cir.1993)).

Great American's policy with Vozzcom is a "claims made" policy. The Florida Supreme Court has explained,

Claims-made or discovery policies are essentially reporting policies. If the claim is reported to the insurer during the policy period, then the carrier is legally obligated to pay.... If a court were to allow an extension of reporting time after the end of the policy period, such is tantamount to an extension of coverage to the insured gratis, something for which the insurer has not bargained.

* * *

As one commentator has noted:

An underwriter who is secure in the fact that claims will not arise under the subject policy ... after its termination or expiration can underwrite a risk and compute premiums with greater certainty. The insurer can establish his reserves without having to consider the possibilities of inflation beyond the policy period, upward-spiralling jury awards, or later changes in the definition and application of negligence.

Gulf Ins. Co. v. Dolan, Fertig and Curtis, 433 So.2d 512, 515-16 (Fla.1983) (emphasis in original) (citation omitted). See also Ameriwood Indus. Int'l Corp. v. American Cas. Co., 840 F.Supp. 1143, 1148-1149 (W.D.Mich.1993) ("``Claims made'" insurance policies ... are intended by insurers to avoid the hazard of an indefinite future: Once the policy period has expired, the book can be closed on everything except then-pending claims.... [A]n insurer incurs a risk with this kind of policy: liability for a claim that has been brewing and was ripe to erupt before the policy period, but is asserted only after the policy period begins.) (internal citations and quotations omitted).

As previously quoted, Section VLB of the Great American policy, as modified by Endorsement No. 8, contains a specific provision regarding multiple claims involving the same "wrongful act" or "related wrongful acts." More than one claim involving the same or related wrongful acts is considered a single claim. (See Great American Policy [D.E. 21-8] at 23). And claims constituting a single claim are "made" on the earlier of the date on which any claim was first made or the earliest date on which the wrongful act or related wrongful act was reported. (See id.).

"The relatedness of the claims must be considered in the context of the type of insurance at issue." Pantropic Power Prods., Inc. v. Fireman's Fund Ins. Co., 141 F.Supp.2d 1366, 1371 (S.D.Fla. 2001) (finding because acts of retaliation and negligence shared temporal proximity, involved same individuals, and the later acts occurred as a consequence of prior acts of harassment, related claims were shown to exist). And in considering whether two acts of negligence are related so that notice of the first act constitutes timely notification of both acts, the Florida courts consider whether there is a causal connection between the acts, and whether the errors complained of lead to the same injury. See Paradigm Ins. Co. v. P & C Ins. Systems, Inc., 747 So.2d 1040, 1042-43 (Fla. 3d DCA 2000) (citations omitted); Eagle Am. Ins. Co. v. Nichols, 814 So.2d 1083, 1087 (Fla. 4th DCA 2002). Acts are not considered "related" if they arise out of separate factual circumstances and give rise to separate causes of action. Paradigm, 747 So.2d at 1042 (citing Kopelowitz v. Home Ins. Co., 977 F.Supp. 1179, 1188 (S.D.Fla.1997)).

As recently explained,

[A] common thread running here views "relatedness" as a concept encompassing both logical and causal connections, Continental Cas. Co. v. Wendt, 205 F.3d 1258 (11th Cir.2000), an assessment which typically involves consideration of whether the acts in question are connected by time, place, opportunity, pattern, and perhaps most importantly, by method or modus operandi, See e.g. Brown v. National Union Ins. Co. of Pittsburgh, Pa. 2004 WL 292158 (D.Minn.2004). Hence, courts analyzing the "relatedness" of claims in situations involving similar policy language consider, among other factors, whether the parties are the same, whether the claims all arise from the same transactions, whether the "wrongful acts" are contemporaneous, and whether there is a common scheme or plan underlying the acts.

This approach does not require exact factual overlap, or even identical legal causes of action, but rather focuses simply on whether the claims are logically linked by a "sufficient factual nexus." See e.g. Zahler v. Twin City Fire Insurance Co., 2006 WL 846352 (S.D.N.Y. 2006) (finding interrelation even where underlying claims were substantively distinct — securities fraud and breach of fiduciary duty); Zunenshine v. Executive Risk Indemnity, Inc. 1998 WL 483475 (S.D.N.Y.1998), aff'd 182 F.3d 902 (2d Cir.1999) (finding interrelation between negligent misrepresentation and securities fraud claims involving distinct communication mediums-private and public disclosures).

Capital Growth Financial LLC v. Quanta Specialty Lines Ins. Co., 2008 WL 2949492, at *4 (S.D.Fla. July 30, 2008). In Wendt, the Eleventh Circuit, construing Florida law, stated the word "related" is to be afforded its plain meaning. 205 F.3d at 1262. "The words ``relate' or ``related' are commonly understood terms in everyday usage. They are defined in the dictionary as meaning a ``logical or causal connection between' two events." Id. (citing Webster's Third New International Dictionary (1981)). If claims are considered "related claims," the only coverage available is that which was available under the policy in effect at the time the first claim is deemed to have been made. Federal Ins. Co. v. Surujon, 2008 WL 2949438, at *5 (S.D.Fla. July 29, 2008) (finding that because a claim related to an earlier related wrongful act, the claim was not covered under the current claims made policy).

In Vozzcom I, I found the Teixeira and DaSilva claims were related, reasoning as follows:

In this case, Teixeira was employed by Vozzcom from approximately November 2006 through April 2007. DaSilva was employed by Vozzcom from September 2006 through April 2007. Teixeira was employed as a cable installer, as was DaSilva. Both employees claimed that Vozzcom failed to pay overtime wages for hours worked in excess of forty hours per week. The factual and temporal circumstances of the two claims are closely related....

(Order on Summary Judgment at 13). Under the plain language of the later-issued Great American policy, the DaSilva claim was not a covered claim:

Under the Great American policy, then, the Dasilva claim was made when the Teixeira lawsuit was filed. The Teixeira lawsuit was filed in August 2007, long before Great American's policy came into effect. The DaSilva claim is therefore outside of the coverage period of Great American's policy according to the express language of the policy.

(Id. at 16).

In the instant dispute, Vozzcom argues that the Elliot claim is not related to the Teixeira and DaSilva claims. Vozzcom states, "despite Great American's self-serving characterization, there is virtually no factual overlap between the Elliot claim and either of the previous suits against Vozzcom." (Vozzcom's Mot. at 1). Vozzcom further asserts:

Because Great American successfully avoided coverage for the Dasilva claim, it now seeks to strain its policy language even further to deny coverage for a claim filed nearly one year after the Dasilva and Teixera lawsuits-a claim filed by a different employee which arises out of a completely distinct set of facts.

(Id. at 4). Vozzcom argues that "[r]ather than draw attention to the dearth of underlying facts which the lawsuits have in common, Great American focuses on the similarity of the allegations set forth in each of the form complaints filed in these matters," and insists that "the underlying events giving rise to the Elliot Claim are separate and distinct from those at issue in Teixeira or Dasilva." (Id. at 5) (emphasis in original).

Notwithstanding its protestations, Vozzcom fails to explain just how the claims differ, or what distinct underlying events differentiate these claims. The only differentiating fact Vozzcom points to is that the Elliot claim was filed more than a year after DaSilva, which is not dispositive in a claims-made policy. The exclusions inherent in claims-made policies are specifically designed to avoid claims which have accrued but not yet been filed. Moreover, the express language of the policy precludes coverage for related claims arising from a wrongful occurrence, regardless of when those claims are filed in court.

Vozzcom maintains that "the only common facts" between Teixeira, DaSilva, and Elliot are "(1) the claims were filed by the same attorney, (2) the Plaintiffs all worked for Vozzcom, and (3) the claims were all for unpaid overtime compensation." (Id. at 16). But Vozzcom ignores many similarities between the claims. Teixeira, DaSilva, and Elliot not only all worked for Vozzcom, but they were employed in the same positions, as cable technicians. All three employees were non-exempt hourly or piece rate workers. All three were employed by Vozzcom during approximately the same time period. All three were allegedly denied overtime coverage in the course of their employment by Vozzcom.

This is not a case where employees from different departments within a company, who performed different tasks at different times and were paid at different pay scales, brought separate suits for FLSA violations. The only material differences between Teixeira, DaSilva, and Elliot are that the suits involve three separate individuals, and one of the claims was filed a year later than the others. If the Teixeira, DaSilva, and Elliot claims are not related, no claims by separate employees could ever be related for exclusion purposes under Great American's claims-made policy, thereby rendering useless the exclusionary clauses. See Anderson v. Auto-Owners Ins. Co., 172 F.3d 767, 769 (11th Cir.1999) ("A court should read an insurance policy as a whole, and endeavor to give each provision its full meaning and operative effect.").

Vozzcom urges the Court to construe the policy in favor of coverage. And while it is true that ambiguous insurance policy provisions must be construed in favor of the insured,^[4] there is simply no ambiguity in this case. The Great American policy states that a related claim is considered "made" at the date of filing of the initial claim. Here, as in the DaSilva case, the claim is considered made on the date the Teixeira claim was filed, which was before the coverage period of the Great American policy. Accordingly, coverage for the Elliot claim is excluded.

Vozzcom also takes issue with the fact that Great American focuses on the allegations of the various complaints to determine whether the claims are related for coverage purposes. Vozzcom argues that although the allegations in Teixeira, DaSilva, and Elliot are similar, the claims in truth have many differences such that they should not be deemed related. As Great American correctly points out, however, the law in Florida is clear that an insurer's duty to defend is determined by the allegations in a compliant against an insured. See Jones v. Florida Ins. Guar. Ass'n, Inc., 908 So.2d 435, 442-43 (Fla.2005) ("It is well settled that an insurer's duty to defend its insured against a legal action arises when the complaint alleges facts that fairly and potentially bring the suit within policy coverage.") (citations omitted). Because the Teixeira, DaSilva, and Elliot complaints on their face allege closely related facts, the claims are related for purposes of determining that Great American does not have a duty to defend the Elliot claim under the express terms of the policy.

Great American maintains that even if the Court were to find the Elliot claim was not made prior to Great American's policy period and excluded on that ground, the claim would nonetheless be excluded under the Prior Notice Exclusion and the Prior Litigation Exclusion provisions of the policy. It is worth noting that under both of those exclusions, the Elliot claim would not be covered if it were

B. based upon, arising out of, relating to, directly or indirectly resulting from or in consequence of, or in any way involving any Wrongful Act or Related Wrongful Act or any fact, circumstance or situation which has been the subject of any notice or Claim given under any other policy of which this Policy is a renewal or replacement;

C. based upon, arising out of, relating to, directly or indirectly resulting from or in consequence of, or in any way involving any prior and/or pending civil, criminal, administrative or investigative proceeding involving the Company and/or any Insured Persons as of the date stated in Item 7 of the Declarations, or any fact, circumstance or situation underlying or alleged in such proceeding;

(Great American Policy at 8) (emphasis in original). The language of these two exclusions — "based upon, arising out of, relating to, directly or indirectly resulting from or in consequence of, or in any way involving any Wrongful Act or related Wrongful Act" — is far broader than the "related act" language required to determine whether the Elliot claim is related to the Teixeira claim for claims-made coverage purposes. Under the Prior Notice and Prior Litigation Exclusions, the Elliot claim requires only a tenuous connection to the Teixeira claim in order to be excluded under the policy. Accordingly, if the Elliot claim is excluded under the Related Wrongful Acts exclusion, it is most certainly excluded under the Prior Notice and Prior Litigation Exclusions.

Vozzcom complains that the Prior Notice and Prior Litigation Exclusion language is "extremely broad." (Vozzcom's Mot. at 11). The Court agrees. The language is extremely broad, but it is also equally clear and without ambiguity. Under Florida law, the policy "must be construed in accordance with the plain language of the policy." Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 735 (Fla.2002). The plain language of the policy states that if a connection exists between a new claim and one that the employer had prior notice of, or was previously litigated, the new claim is not covered under the policy.

Vozzcom also argues that the Prior Notice and Prior Litigation Exclusions are too broad in scope. Vozzcom asserts, "[i]f Great American does intend to deny coverage whenever a party has been previously sued for unpaid overtime compensation, its exclusion must explicitly state that, and not leave an insured to discover this loophole after a loss has occurred." (Vozzcom's Mot. at 16). Vozzcom overstates the issue. First, the exclusions do not deny coverage for every overtime compensation claim: only related claims are excluded. Moreover, the language of the exclusionary clauses is, as noted, clear and unambiguous. As Great American points out, "[t]he fact that this conclusion necessarily requires a finding of no coverage for Vozzcom does not entitle Vozzcom to rewrite the express provisions of the policy." (Great American's Response to Vozzcom's Motion for Summary Judgement [D.E. 26] at 9).

Accordingly, the Elliot claim is not covered under the policy, and Great American is entitled to summary judgment as a matter of law.

IV. CONCLUSION

In light of the foregoing, it is hereby

ORDERED AND ADJUDGED that

1. Great American's Motion for Summary Judgment [D.E.21] is GRANTED.

2. Vozzcom's Motion for Summary Judgment [D.E. 22] is DENIED.

3. This case is CLOSED.

4. All pending motions are DENIED as moot.

NOTES

[1] The parties agree no material facts are in dispute in this case, and Vozzcom has adopted the statement of undisputed facts contained in Great American's Motion. (See Vozzcom's Motion for Summary Judgment ("Vozzcom's Mot.") at 2).

[2] Much of the relevant factual background from Vozzcom I, a suit against Beazley and Great American, is contained in the Court's Order on Summary Judgment in Vozzcom I, and is repeated here without citations to the Order.

[3] The parties agree Florida law applies to construction of the policy.

[4] See, e.g., Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Ass'n, 117 F.3d 1328, 1337 (11th Cir.1997).