Endurance American Specialty Insurance Company v. L. Pellinen Construction, Inc.

USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 1 of 17
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10256
Non-Argument Calendar
____________________
ENDURANCE AMERICAN SPECIALTY INSURANCE
COMPANY,
Plaintiff-Appellant,
versus
L. PELLINEN CONSTRUCTION, INC.,
MATTAMY ORLANDO, LLC,
MATTAMY FLORIDA, LLC,
f.k.a. Mattamy (Jacksonville) Partnership,
Defendants-Appellees.
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 2 of 17
2 Opinion of the Court 21-10256
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:18-cv-02154-RBD-GJK
____________________
Before JILL PRYOR, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Endurance American Specialty Insurance Company appeals
the entry of summary judgment against it in its action seeking a
declaration of rights and liabilities under a commercial liability in-
surance policy that it issued to L. Pellinen Construction, Inc. After
reviewing the record and the parties’ briefs, we conclude that the
district court correctly determined that the policy covered appel-
lees Mattamy Orlando, LLC and Mattamy Florida, LLC as addi-
tional insureds and that the policy exclusions relied upon by Endur-
ance did not apply. We therefore affirm.
I.
In December 2016, while working on the roof trusses for a
new home in Kissimmee, Florida, Esdras Ambrocio fell and landed
on the concrete slab some 15–20 feet below. Ambrocio was seri-
ously injured and incurred significant expenses for medical treat-
ment and life care.
After paying hundreds of thousands of dollars for those con-
tinuing expenses, the workers’ compensation carrier for
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 3 of 17
21-10256 Opinion of the Court 3
Ambrocio’s employer filed a personal-injury lawsuit in his name
against several entities involved in the construction of the home.
Those entities included (among others) L. Pellinen Construction,
Inc., the residential construction company that had subcontracted
with Ambrocio’s employer to help with framing the house; Mat-
tamy Florida, LLC, the owner of the lot where the house was being
built, as well as most or all of the other lots in the subdivision; and
Mattamy Orlando, LLC, an affiliate of Mattamy Florida that had
hired Pellinen to do framing and sheathing work on the house.
Pellinen was insured under a commercial general liability
policy issued by Endurance American Specialty Insurance Com-
pany. The policy required Endurance to defend and indemnify
Pellinen for covered bodily-injury claims, subject to certain exclu-
sions. It also extended coverage to “additional insureds” for liabil-
ity arising from Pellinen’s work for the additional insureds or from
the additional insureds’ acts or omissions in connection with their
“general supervision” of Pellinen’s work, if such coverage was re-
quired by written contract, and subject to the same exclusions.
Mattamy Florida and Mattamy Orlando tendered their de-
fense in Ambrocio’s lawsuit to Endurance, claiming that they were
additional insureds under Pellinen’s policy by virtue of a written
agreement with Pellinen. Endurance refused to defend the Mat-
tamy entities, asserting that the policy did not provide coverage for
Ambrocio’s lawsuit because three policy exclusions applied: a
Workers’ Compensation exclusion, an “Employer’s Liability” ex-
clusion, and a “Multi-Unit Construction Project” exclusion.
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 4 of 17
4 Opinion of the Court 21-10256
Endurance raised the same three exclusions in a declaratory
judgment action it filed in federal court, seeking a declaration that
it had no duty to defend or indemnify Pellinen or the Mattamy en-
tities in Ambrocio’s personal injury lawsuit. The parties in the de-
claratory judgment action filed cross-motions for summary judg-
ment. The district court ultimately granted the Mattamy defend-
ants’ motion for summary judgment and denied Endurance’s mo-
tion in relevant part, finding that Mattamy Florida and Mattamy
Orlando were “additional insureds” under the policy and that the
exclusions raised by Endurance did not apply to them.1 Endurance
now appeals.
II.
We review a district court’s rulings on cross-motions for
summary judgment de novo, viewing the facts in the light most
favorable to the nonmoving party on each motion. Chavez v. Mer-
cantil Commercebank, N.A., 701 F.3d 896, 899 (11th Cir. 2012).
Summary judgment is appropriate when the record evidence
shows that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a).
1The district court granted Endurance’s motion as to Pellinen. Pellinen has
not appealed that decision.
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 5 of 17
21-10256 Opinion of the Court 5
We also review a district court’s interpretation of a contract,
including an insurance policy, de novo. Tobin v. Mich. Mut. Ins.
Co., 398 F.3d 1267, 1274 (11th Cir. 2005).
III.
First, we consider Endurance’s arguments that the district
court erred in finding that Mattamy Florida and Mattamy Orlando
were entitled to coverage as “additional insureds” under the policy.
We then consider whether the exclusions raised by Endurance re-
lieved it of the obligation to defend the Mattamy defendants
against the personal injury action brought by Ambrocio. None of
Endurance’s arguments are persuasive; we affirm the district
court’s judgment in favor of the Mattamy defendants.
A.
Endurance contends that the district court exceeded its au-
thority by declaring that Mattamy Florida and Mattamy Orlando
were entitled to coverage as additional insureds under the policy
issued to Pellinen, arguing that this issue was beyond the scope of
its declaratory judgment action. We disagree.
The question of the Mattamy defendants’ insured status was
squarely before the district court from the time that Endurance
named them as defendants in the declaratory judgment action. In
its complaint, Endurance asked the district court to declare
whether the Pellinen policy provided coverage to the Mattamy de-
fendants for Ambrocio’s personal injury claim. Endurance alleged
a “bona fide, actual, present, and practical need for a declaration of
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 6 of 17
6 Opinion of the Court 21-10256
the parties’ rights and duties, if any, under the Endurance Policy
issued to Pellinen,” and it sought a judgment declaring that it had
no duty to defend or indemnify the Mattamy defendants due to
specified exclusions in the policy. In their answer to the complaint,
the Mattamy defendants asserted as an affirmative defense that
they were entitled to a defense and indemnity in the personal injury
action because they were additional insureds under the policy.
The parties also raised the question of the Mattamy defend-
ants’ insured status in their cross-motions for summary judgment,
each relying in part on the “Additional Insured Endorsement” in
the policy. In its motion, Endurance explained that the exclusions
it relied on barred coverage for the Mattamy defendants “[p]ursu-
ant to the terms of the Endurance Policy’s Additional Insured En-
dorsement”; the Mattamy defendants asserted that the same en-
dorsement entitled them to coverage under the policy. The parties
having raised the question of the Mattamy defendants’ status as ad-
ditional insureds in their pleadings and in their motions for sum-
mary judgment, the district court did not err in addressing it.
B.
Endurance also argues that the district court erred in finding
that the Mattamy defendants were entitled to a defense in the per-
sonal injury action under the policy’s additional insured endorse-
ment because (1) the policy provided liability coverage for addi-
tional insureds only in connection with their supervision of
Pellinen’s work, which was not at issue in the personal injury ac-
tion; and (2) a question of fact remained as to whether the Mattamy
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 7 of 17
21-10256 Opinion of the Court 7
defendants’ written agreement with Pellinen was in effect at the
time of Ambrocio’s accident. Again, we disagree.
The additional insured endorsement in the policy provides
that any “entity required by written contract . . . to be named as an
insured is an insured but only with respect to liability arising out
of” (as relevant here) “‘your work’ for the additional insured, or
acts or omissions of the additional insured, in connection with their
general supervision of ‘your work.’” The policy states that “you”
or “your” refers to the named insured—Pellinen—and defines
“your work” to mean “(1) [w]ork or operations performed by you
or on your behalf; and (2) [m]aterials, parts or equipment furnished
in connection with such work or operations.”
Ambrocio’s complaint alleged that the Mattamy defendants
were the owners and developers of the property, that Pellinen
acted as the general contractor, that both the Mattamy entities and
Pellinen were involved in conducting and overseeing the construc-
tion and framing of the home, and that the Mattamy defendants
were also involved in the purchase and storage of the trusses that
allegedly failed and caused Ambrocio’s accident. The complaint
further alleged that Pellinen hired Ambrocio’s employer to assist
with the construction and framing of the home, and that both the
Mattamy defendants and Pellinen were liable for, among other
things, failing to inspect and properly store the trusses that alleg-
edly broke and caused Ambrocio’s fall, failing to provide a safe
workplace, and “failing to properly supervise the work.”
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 8 of 17
8 Opinion of the Court 21-10256
These allegations, though vague, are sufficient to bring Am-
brocio’s lawsuit within the coverage provided by the policy for lia-
bility arising from the Mattamy defendants’ “general supervision”
of work done by Pellinen or on its behalf, or of materials furnished
in connection with such work. Under Florida law, “if the com-
plaint, fairly read, contains any allegations which could fall within
the scope of coverage, the insurer is obliged to defend the entire
action,” even if the complaint leaves some doubt as to the nature
or validity of the harms alleged, or includes allegations that fall out-
side the scope of coverage. 2 Psychiatric Assocs. v. St. Paul Fire &
Marine Ins. Co., 647 So. 2d 134, 137 (Fla. Dist. Ct. App. 1994); see
Lime Tree Vill. Cmty. Club Ass’n, Inc. v. State Farm Gen. Ins. Co.,
980 F.2d 1402, 1405–06 (11th Cir. 1993).
Endurance also contends that a factual dispute exists regard-
ing the effective date of the written contract that the Mattamy de-
fendants rely on to give them additional-insured status. In the
signed (but undated) contract, Pellinen agreed to perform con-
struction work according to purchase orders issued from time to
time by Mattamy Orlando and to procure liability insurance nam-
ing Mattamy Orlando and its affiliates as additional insureds. The
Mattamy defendants submitted affidavit testimony stating that
(1) Mattamy Orlando entered into the contract with Pellinen “on
2 Florida law applies in this diversity-jurisdiction case involving insurance cov-
erage under a policy that was issued for delivery in Florida. See Trailer Bridge,
Inc. v. Illinois Nat. Ins. Co., 657 F.3d 1135, 1141 (11th Cir. 2011); Strochak v.
Fed. Ins. Co., 717 So. 2d 453, 455 (Fla. 1998).
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 9 of 17
21-10256 Opinion of the Court 9
or about December 1, 2015”; (2) Mattamy Florida and Mattamy
Orlando share the same parent company, and Mattamy Florida is
Mattamy Orlando’s sole member and manager; (3) in September
2016, Pellinen provided Mattamy Orlando with a Certificate of Li-
ability Insurance stating that the Mattamy defendants had been
added as additional insureds under the Endurance policy; and (4) in
December 2016, pursuant to the contract, Mattamy Orlando issued
purchase orders for Pellinen to perform framing and other con-
struction work on the house where Ambrocio was injured. Endur-
ance does not contest the authenticity or terms of the contract, and
it does not present any evidence to challenge the Mattamy defend-
ants’ affidavit testimony. Instead, it contends that because the “ef-
fective date” line on the contract was left blank, a genuine issue of
material fact as to whether the contract was in effect in December
2016 exists, precluding summary judgment.
But “the mere existence of some alleged factual dispute be-
tween 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, 247–248 (1986) (emphasis in the original). No genuine
issue for trial exists here—the Mattamy defendants presented affi-
davit evidence that Mattamy Orlando entered into the agreement
with Pellinen in December 2015, before Ambrocio’s accident, and
that Mattamy Orlando and Pellinen were operating under the con-
contract in December 2016 when the accident occurred; Endur-
ance presented no evidence to the contrary. This state of the
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 10 of 17
10 Opinion of the Court 21-10256
record “could not lead a rational trier of fact to find for the non-
moving party,” so “there is no ‘genuine issue for trial.’” Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
C.
We turn next to the Workers’ Compensation and Employer
Liability exclusions in the policy. The Workers’ Compensation ex-
clusion states that the policy does not apply to “[a]ny obligation of
the insured under a workers’ compensation, disability benefits or
unemployment compensation law or any similar law.” Under Flor-
ida law, employers are obligated to provide workers’ compensa-
tion for their actual and “statutory employees.” Fla. Stat. § 440.10;
Fla. Ins. Guar. Ass’n, Inc. v. Revoredo, 698 So. 2d 890, 891–92 (Fla.
Dist. Ct. App. 1997). The Employer’s Liability exclusion excludes
coverage for bodily injury to the insured’s employees injured dur-
ing the course of their employment or while performing related
duties. The parties agree that Ambrocio was not actually em-
ployed by any of the Mattamy defendants, so the applicability of
either exclusion turns on whether Ambrocio was a “statutory em-
ployee” of one or more of the Mattamy entities. If so, both exclu-
sions apply; if not, neither one does.
The concept of the “statutory employee” under Florida law
comes from the Florida Workers’ Compensation Act, which pro-
vides that any “contractor” in the construction industry who sub-
lets any part of his or her “contract work” to a subcontractor is lia-
ble for payment of workers’ compensation to the subcontractor’s
employees, as well as to his or her own employees. Fla. Stat.
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 11 of 17
21-10256 Opinion of the Court 11
§ 440.10(1)(b). In other words, “‘[c]ontractors’ who sublet work
become statutory ‘employers’ of their subcontractors’ employees”
under the Act. Cadillac Fairview of Fla., Inc. v. Cespedes, 468 So.
2d 417, 420 (Fla. Dist. Ct. App. 1985). Although “contractors” are
obligated to provide workers’ compensation for all of their statu-
tory employees, they are otherwise generally immune from liabil-
ity for workplace injuries sustained by those employees. Fla. Stat.
§ 440.11; see Cespedes, 468 So. 2d at 420.
A “contractor” in this context is one who has “incurred a
contractual obligation to a third party, a part of which obligation
the [contractor] has delegated or sublet to a subcontractor whose
employee is injured.” Pullam v. Hercules Inc., 711 So. 2d 72, 73
(Fla. Dist. Ct. App. 1998) (alteration in the original) (citation omit-
ted). An entity does not become a “contractor” under the statute
merely by entering a contract with a subcontractor; instead, under
the plain language of the statute, the contractor must have a pri-
mary contractual obligation to a third party, a portion of which he
“sublets” to another. Jones v. Fla. Power Corp., 72 So. 2d 285, 289
(Fla. 1954); Cuero v. Ryland Grp., Inc., 849 So. 2d 326, 328 (Fla.
Dist. Ct. App. 2003).
Endurance contends that Mattamy Orlando was acting as a
“contractor” for the project, so that Ambrocio—who was em-
ployed by a subcontractor hired by Pellinen, which in turn was a
subcontractor of Mattamy Orlando—was Mattamy Orlando’s stat-
utory employee and coverage is barred under the Workers’ Com-
pensation and Employer’s Liability exclusions. But Endurance has
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 12 of 17
12 Opinion of the Court 21-10256
not identified any allegations in Ambrocio’s complaint or evidence
in the record indicating that Mattamy Orlando had a contractual
obligation to any third party with respect to the construction pro-
ject at issue. Rather, the allegations in the complaint and the ex-
trinsic evidence cited by Endurance indicate that Mattamy Orlando
was acting on its own behalf (or on behalf of its sole owner and
manager, Mattamy Florida) as a property owner, developing its
property for its own profit.
Endurance acknowledges that Ambrocio’s complaint identi-
fies Mattamy Orlando as the “owner/developer” of the home
where the accident occurred. It argues, however, that Mattamy
Orlando “assumed the roles of contractor and employer” by acting
as a general contractor in its contractual relationship with Pellinen
and (according to Ambrocio’s complaint) taking an active role in
the construction of the home where Ambrocio was injured. This
argument is not well founded.
A property owner does not take on the role of a “contractor”
and statutory employer under Florida law merely by acting as its
own general contractor, by hiring a subcontractor, or by participat-
ing in a construction project on its property. See Heredia v. John
Beach & Assocs., Inc., 278 So. 3d 194, 197 (Fla. Dist. Ct. App. 2019);
Cuero, 849 So. 2d at 328–30; see also Conklin v. Cohen, 287 So. 2d
56, 59–60 (Fla. 1973) (owner with no primary contractual obliga-
tion was not a “contractor” entitled to workers’ compensation im-
munity merely because it was alleged to have worked in concert
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 13 of 17
21-10256 Opinion of the Court 13
with its general contractor, and the owner could therefore be held
liable for its negligence if it was actively involved in the project).
Endurance also argues that Mattamy Orlando should be ju-
dicially estopped from claiming here that it was not a contractor or
statutory employer because it took the position in Ambrocio’s law-
suit that it was entitled to workers’ compensation immunity—im-
munity enjoyed by “contractors” and statutory “employers” under
Florida law. “Judicial estoppel is an equitable doctrine that is used
to prevent litigants from taking totally inconsistent positions” in
separate proceedings, to the detriment of an adversary common to
both proceedings. Blumberg v. USAA Cas. Ins. Co., 790 So. 2d
1061, 1066 (Fla. 2001) (citation omitted). Under Florida law, the
doctrine of judicial estoppel applies where (1) a party that success-
fully maintained a claim or position in a previous judicial proceed-
ing (2) attempts to make a completely inconsistent claim or take a
clearly conflicting position in a subsequent judicial proceeding
(3) to the prejudice of the adverse party, and (4) subject to some
exceptions, the parties are the same in both actions. Salazar-Abreu
v. Walt Disney Parks and Resorts U.S., Inc., 277 So. 3d 629, 631
(Fla. Dist. Ct. App. 2018).
Judicial estoppel does not apply here because the record con-
tains no indication that Mattamy Orlando successfully maintained
the position in Ambrocio’s lawsuit that it was a “contractor” or stat-
utory “employer” with respect to the construction project at issue.
The Mattamy defendants moved to dismiss Ambrocio’s complaint
on the ground that they were entitled to workers’ compensation
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 14 of 17
14 Opinion of the Court 21-10256
immunity because, based on the allegations in the complaint, they
acted as the general contractor in building the home where Am-
brocio was injured. Setting aside whether the Mattamy defendants
could succeed on that argument, we see no indication that they did
so. It appears instead that Ambrocio amended his complaint, drop-
ping Mattamy Orlando as a defendant, before the court ruled on
the motion to dismiss. Florida law is clear that “to work an estop-
pel, the position assumed in the former trial must have been suc-
cessfully maintained.” Blumberg, 790 So. 2d at 1066 (citation omit-
ted). Because Mattamy Orlando did not successfully maintain the
position that it was a “contractor” or statutory “employer” under
Florida law in the state court action, it is not estopped from taking
the opposite position here.
D.
Last, we address Endurance’s argument that the “Multi-Unit
Construction Project” exclusion applied to bar coverage for Am-
brocio’s lawsuit. That provision of the policy excludes coverage
for bodily injury or medical expense from an occurrence connected
with the original construction of a “Multi-Unit Construction Pro-
ject.” The policy defines a “Multi-Unit Construction Project” as
“any condominium, cooperative, townhouse or ‘housing develop-
ment’ where the completed project will exceed 10 ‘residential
units.’” A “housing development,” in turn, is defined as a “series
of separate dwellings being constructed on a single contiguous par-
cel of land.” Endurance argues that this exclusion applies to Am-
brocio’s claim because the subdivision where Ambrocio’s injury
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 15 of 17
21-10256 Opinion of the Court 15
occurred is a “housing development” exceeding 10 residential
units.
In support of this argument, Endurance submitted evidence
in the district court showing that the home where Ambrocio was
working when he was injured was part of a subdivision called “Tap-
estry,” developed by the Mattamy defendants. According to the
county land records submitted by Endurance, Mattamy Florida
purchased land in Kissimmee, Florida, in 2013. It then subdivided
the land into dozens of residential lots designed for single-family
houses or townhouses, and the county assigned each lot its own
parcel identification number. The county records indicate that
construction of the single-family home where Ambrocio was in-
jured began in late 2016, on lot 136 of the Tapestry subdivision.
Mattamy Florida sold the completed home and lot to an individual
homeowner the following year.
Endurance argues that the Multi-Unit Construction Project
exclusion applies because the home where Ambrocio was injured
was part of a “housing development”—the Tapestry subdivision.
Although the argument has intuitive appeal, the policy’s definition
of “housing development” does not fit the evidence that Endurance
presented about the subdivision and the home where Ambrocio’s
accident occurred. That evidence indicated that while the subdivi-
sion included dozens of homes, the homes were not all “being con-
structed on a single contiguous parcel of land.” Instead, by the time
construction began, Mattamy Florida had divided Tapestry into
many separate parcels of land, and each home—including the
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 16 of 17
16 Opinion of the Court 21-10256
home where Ambrocio was working when he fell—was being con-
structed on its own parcel.
Endurance contests this conclusion, arguing that the term
“single contiguous parcel of land” in its policy unambiguously re-
fers to the “parent parcel” of the development—here, the land that
Mattamy Florida bought in 2013 and later subdivided into single-
home lots. Even if we accept Endurance’s reading of its policy lan-
guage as reasonable, we cannot agree that its interpretation is the
only reasonable one. As Endurance recognizes, Tapestry’s “parent
parcel” was subdivided into lots, each lot was identified as a sepa-
rate “parcel” in county land records, and each lot or county “par-
cel” had a single home built on it. These facts make the Mattamy
defendants’ construction—that Tapestry was not a “housing devel-
opment” as defined in the policy because each home in the subdi-
vision was built on its own separate “parcel of land”—as reasonable
as Endurance’s. And where two reasonable interpretations of an
undefined policy term exist, Florida law requires that we “resolve
the ambiguity in favor of the insured by adopting the reasonable
interpretation of the policy’s language that provides coverage as
opposed to the reasonable interpretation that would limit cover-
age.” Travelers Indem. Co. v. PCR Inc., 889 So. 2d 779, 785–86 (Fla.
2004). We thus conclude that the Multi-Unit Construction Project
exclusion in Endurance’s policy did not bar coverage for Ambro-
cio’s personal injury claim.
USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 17 of 17
21-10256 Opinion of the Court 17
IV.
The district court did not err in finding that the Mattamy
defendants qualified as additional insureds under the commercial
general liability insurance policy issued by Endurance to Pellinen,
and that the Workers’ Compensation, Employer’s Liability, and
Multi-Unit Construction Project exclusions did not bar coverage
for the Mattamy defendants. We therefore AFFIRM the district
court’s judgment denying Endurance’s motion for summary judg-
ment as to Mattamy Florida and Mattamy Orlando and granting
the Mattamy defendants’ cross-motion for summary judgment.
AFFIRMED.