Nationwide Insurance Company of America v. Diane Wolfe

USCA11 Case: 22-10067 Document: 50-1 Date Filed: 03/15/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10067
Non-Argument Calendar
____________________
NATIONWIDE INSURANCE
COMPANY OF AMERICA,
A foreign corporation,
Plaintiff-Appellee,
versus
DIANE WOLFE, JOHN WOLFE,
DAWN WOLFE, As co-personal representatives
of the Estate of MICHAEL WOLFE, Deceased.
Defendants-Appellants,
___________________
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2 Opinion of the Court 22-10067
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cv-01444-CEM-GJK
____________________
Before ROSENBAUM, JILL PRYOR and DUBINA, Circuit Judges.
PER CURIAM:
This appeal is from certain rulings in the district court from
a declaratory judgment action filed by Nationwide Insurance Com-
pany (“Nationwide”) regarding a Commercial General Liability In-
surance Policy (“Policy”) issued by Nationwide to Southland Lawn
Care, Inc. and its owner, Anthony Acquafredda, the insureds (“the
insureds”) under the Policy. The case relates to an underlying state
court wrongful death action filed by Diana, John, and Dawn Wolfe
(“the Wolfes”) on behalf of decedent, Michael Wolfe (“decedent”).
After commencement of the underlying state action, Nationwide
filed this suit against the insureds and the Wolfes seeking a declara-
tion as to whether it had a duty to defend or indemnify the insureds
in the underlying state action. Nationwide filed a motion for sum-
mary judgment that the district court granted as to the insureds and
the Wolfes, but only the Wolfes filed a notice of appeal. The
Wolfes argue on appeal that the district court erred by denying
their motion to strike and motion in limine, and that the district
court erred by finding that Nationwide did not have a duty to de-
fend or indemnify the insureds under the Policy. Having read the
parties’ briefs and reviewed the record, we affirm the district
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22-10067 Opinion of the Court 3
court’s order on the motion to strike and motion in limine and the
district court’s grant of summary judgment to Nationwide on its
declaratory judgment action.
I.
We review the district court’s evidentiary rulings for an
abuse of discretion. See Kropilak v. 21st Century Ins. Co., 806 F.3d
1062, 1067 (11th Cir. 2015) (motion in limine). We review an order
granting summary judgment de novo, applying the same legal
standards as the district court. Amy v. Carnival Corp., 961 F.3d
1303, 1308 (11th Cir. 2020). We view the evidence in the light most
favorable to the non-movant and draw all reasonable inferences in
his favor. Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995).
“Summary judgment is appropriate if the evidence before the court
shows 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.” McCullough v. Antolini, 559 F.3d 1201, 1204 (11th Cir. 2009)
(internal quotation marks omitted).
II.
With respect to the underlying state court wrongful death
action, the pertinent facts are provided in the Second Amended
Complaint in that action. The complaint states that on September
28, 2015, the decedent was operating a truck and trailer in Mel-
bourne, Brevard County, Florida, when the trailer became unat-
tached from the truck, or otherwise inoperable, in the middle of
the roadway in the pre-dawn hours of the morning. The truck and
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4 Opinion of the Court 22-10067
trailer were in the roadway while the decedent tried to reattach the
trailer to the truck so it could be removed from the roadway. An-
other individual assisted the decedent with reattaching the trailer
and or directing traffic; however, at 6:50 a.m., a vehicle struck the
trailer, pinning the decedent between the trailer and truck, causing
his death.
The decedent worked for the insured at the time of the acci-
dent, and the vehicle and trailer he was operating were owned by
the insured. The insured had a Policy with Nationwide that was in
effect at the time of the incident. After the Wolfes filed the wrong-
ful death action in state court, Nationwide sought, in federal court,
a declaration as to its duties under the Policy. Nationwide asserted
that two policy exclusions applied that released it from any duty to
defend or indemnify: the Employers Liability Exclusion and the
Aircraft, Auto or Watercraft Exclusion. The district court found
that the Auto Exclusion applied and granted summary judgment to
Nationwide. The Wolfes challenge that ruling on appeal.
III.
A. Motions
The Wolfes assert that the district court abused its discretion
by denying their motion to strike due to Nationwide’s failure to
provide the proper Rule 26 disclosures under the Federal Rules of
Civil Procedure. The Wolfes assert that Nationwide violated Rule
26 by not disclosing, in part, its Request for Admissions, including
the responses by the insureds, the Wolfes’ Second Amended
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22-10067 Opinion of the Court 5
Complaint in the underlying action, the Policy at issue, and a finan-
cial report from Southland. A review of the record indicates that
the district court did not abuse its discretion in this regard because
the discovery requests and responses were not subject to disclosure
under Rule 26.
Further, the record demonstrates that the district court did
not rely on the Requests for Admission in granting summary judg-
ment to Nationwide, finding that the allegations in the underlying
complaint controlled. To the extent the Second Amended Com-
plaint in the underlying litigation was subject to Rule 26, it was filed
by a lawyer in the same office as the lawyer who represents the
Wolfes in the instant case; thus, the Wolfes had access to it. It was
also attached as an exhibit to the Second Amended Petition for De-
claratory Relief and Decree, which was served on the Wolfes. As-
suming the Policy was subject to disclosure, the insurance policy
was attached as an exhibit to the Second Amended Petition for De-
claratory Relief and Decree, which was served on the Wolfes
months before Nationwide filed its Motion for Summary Judg-
ment. In sum, we conclude the Wolfes cannot demonstrate any
abuse of discretion by the district court in its ruling nor can they
demonstrate any prejudice; thus, we affirm the district court’s or-
der on the motion to strike.
The Wolfes also assert that the district court abused its dis-
cretion by denying their motion in limine to bar the use of the ac-
cident report that Nationwide used in support of its motion for
summary judgment. The record demonstrates, however, that
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Nationwide did not use the accident report in their motion for sum-
mary judgment. The accident report was attached to all three Re-
quests for Admissions as a definitional aide. Further, the district
court apparently did not rely on the accident report in its ruling on
the motion for summary judgment because there is no mention of
the report in its order. Because the Wolfes cannot demonstrate any
abuse of discretion by the district court in this regard, we affirm its
order on the motion in limine.
B. Summary Judgment
The Wolfes contend that the district court erred in granting
Nationwide’s motion for summary judgment because it misapplied
the law and facts in the light most favorable to Nationwide to find
that the auto exclusion in the Policy applies to release Nationwide
from its duty to defend and indemnify. The Wolfes argue that the
district court erred by not finding that the trailer that detached
from the decedent’s vehicle was “mobile equipment” that is not
included under the Policy’s definition of auto. The record demon-
strates that the Wolfes did not present sufficient evidence to the
district court to prove that the trailer was exempt from the Policy’s
auto exclusion. Thus, we conclude that the district court did not
err in granting summary judgment to Nationwide.
The pertinent Policy provision provides, in part:
g. Aircraft, Auto Or Watercraft
“Bodily injury” or “property damage” arising out of
the ownership, maintenance, use or entrustment to
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others of any aircraft, “auto” or watercraft owned or
operated by or rented or loaned to any insured. Use
includes operation and “loading or unloading”.
This exclusion applies even if the claims against any
insured allege negligence or other wrongdoing in the
supervision, hiring, employment, training or moni-
toring of others by that insured, if the “occurrence”
which caused the “bodily injury” or “property dam-
age” involved the ownership, maintenance, use or en-
trustment to others of any aircraft, “auto” or water-
craft that is owned or operated by or rented or loaned
to any insured.
(R. Doc. 45-5).
The district court noted that the definition of “auto” in-
cludes “[a] land motor vehicle, trailer or semitrailer designed for
travel on public roads, including any attached machinery or equip-
ment.” (emphasis added). It also found that the Policy stated that
“‘Use” includes operation and loading or unloading. (R. Doc. 79).
The district court found it undisputed that the decedent’s death
was a bodily injury. It then proceeded to determine if his death
arose out of the ownership, maintenance, use or entrustment to
others of any “auto” owned, operated by, or rented to or loaned to
any insured. The district court concluded that it did.
The district court’s reasoning is sound under Taurus Hold-
ings, Inc. v. U.S. Fid. And Guar. Co., 913 So. 2d 528, 539 (Fla. 2005).
(holding that the term “arising out of” is not ambiguous and should
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be interpreted broadly). The district court considered the term
broadly and reasoned that the decedent’s death had a connection
to his attempts to reconnect the trailer because those attempts are
what placed him between the trailer and the truck when the vehicle
struck the trailer. The Wolfes contend that the district court did
not follow Frontier Ins. Co. v. Pinecrest Preparatory Sch. Inc., 658
So. 2d 601, 602-03 (Fla. Dist. Ct. App. 1995), but that case is not
factually applicable. Frontier did not involve a trailer used com-
mercially on the roadway; rather, it involved a trailer used as a play-
ground tram for youth campers that stayed on the insured’s prem-
ises. Id. at 603. The court found that the trailer was “mobile equip-
ment” under the policy because it stayed on the insured’s premises.
Id.The Wolfes offer no persuasive legal authority to support
reversal of the coverage determination made by the district court.
The trailer involved here was expressly defined in the Policy as an
“auto” and, considering the factual circumstances pled in the un-
derlying complaint, the trailer clearly did not fall within the policy
definition of “mobile equipment” as urged by the Wolfes. The dis-
trict court properly utilized facts pled in the complaint in the un-
derlying litigation and the language of the Nationwide Policy to
conclude, as a matter of law, that Nationwide owed no duty to de-
fend its insureds in the underlying litigation or to indemnify its in-
sureds for the Wolfes’ wrongful death action.
Accordingly, based on the aforementioned reasons, we af-
firm the district court’s orders on the motion to strike and motion
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in limine and affirm its order granting summary judgment to Na-
tionwide on its declaratory judgment action.
AFFIRMED.