Opinion
CASE NO. 19-20097-CIV-SMITH
2020-09-28
STARR INDEMNITY & LIABILITY COMPANY, Plaintiff, v. David RODRIGUEZ, et al., Defendants.
Jesse Abraham Haskins, Florida Office of the Attorney General, Tallahassee, FL, Scott Jeffrey Frank, Kimberly Nanice Ramey, Butler Weihmuller Katz Craig, LLP, Tampa, FL, for Plaintiff. Anthony Manuel Lopez, Marin, Eljaiek, Lopez & Martinez, P.L., Miami, FL, Joanna M. Alemany, Marin, Eljaiek, Lopez, & Martinez, P.L., Coconut Grove, FL, for Defendants David Rodriguez 235 E. San Marino Dr. Miami, FL 33139, M.D., P.A. David Rodriguez 8950 S.W. 74th Court, # 1706 Miami, FL 33156. Joanna M. Alemany, Marin, Eljaiek, Lopez, & Martinez, P.L., Coconut Grove, FL, Sagi Shaked, Shaked Law Firm, P.A., Aventura, FL, for Defendant Patricia West 15841 SW 91 Court Palmetto Bay, FL 33156.
Jesse Abraham Haskins, Florida Office of the Attorney General, Tallahassee, FL, Scott Jeffrey Frank, Kimberly Nanice Ramey, Butler Weihmuller Katz Craig, LLP, Tampa, FL, for Plaintiff.
Anthony Manuel Lopez, Marin, Eljaiek, Lopez & Martinez, P.L., Miami, FL, Joanna M. Alemany, Marin, Eljaiek, Lopez, & Martinez, P.L., Coconut Grove, FL, for Defendants David Rodriguez 235 E. San Marino Dr. Miami, FL 33139, M.D., P.A. David Rodriguez 8950 S.W. 74th Court, # 1706 Miami, FL 33156.
Joanna M. Alemany, Marin, Eljaiek, Lopez, & Martinez, P.L., Coconut Grove, FL, Sagi Shaked, Shaked Law Firm, P.A., Aventura, FL, for Defendant Patricia West 15841 SW 91 Court Palmetto Bay, FL 33156.
ORDER ON THE PARTIES’ MOTIONS FOR SUMMARY JUDGMENT
RODNEY SMITH, UNITED STATES DISTRICT JUDGE
Plaintiff, Starr Indemnity & Liability Company, filed this action on January 8, 2019, seeking a declaration that it has no duty to defend or indemnify Defendants, Dr. David Rodriguez and David Rodriguez, M.D., P.A., in an underlying state court case concerning a May 2016 auto accident. Both Plaintiff's Motion for Summary Judgment [DE 67] and Defendants’ Amended Joint Motion for Summary Judgment [DE 68] seek a final determination on the issue of Plaintiff's duty to defend. As explained below, upon reviewing the evidence, the Court finds as a matter of law that Defendants’ failure to timely notify Plaintiff of the claim, as required by the insurance policy, has caused Plaintiff to suffer prejudice. Consequently, Plaintiff has no duty to defend and, by extension, no duty to indemnify Defendants. Pursuant to its reservation of rights, Plaintiff is entitled to a reimbursement of defense costs and fees paid to date. Having found that Plaintiff has no duty to defend, other arguments raised in the parties’ motions are rendered moot. Therefore, Plaintiff's motion for summary judgment is granted and Defendants’ motion is denied.
I. BACKGROUND
Dr. David Rodriguez ("Dr. Rodriguez") is a dermatologist, and an owner, officer and employee of David Rodriguez, M.D., P.A., d/b/a Dadeland Dermatology Group ("Rodriguez P.A."), a medical practice. (Pl.’s Statement of Facts [66] ¶ 4. ) A. Insurance Policy
To the extent the parties agree on the facts, and those facts are supported by the evidence, the Court may cite to the parties’ Statements of Material Facts. Additionally, the Court notes that under Local Rule 56.1, Statements of Facts and opposing Statements of Material Facts must meet specific requirements, including a requirement that "[a]n opponent's Statement of Material Facts shall use, as the very first word in each paragraph-by-paragraph response, the word ‘disputed’ or ‘undisputed.’ " S.D. Fla. L.R. 56.1(b)(2). "All material facts in any party's Statement of Material Facts may be deemed admitted unless controverted by the other party's Statement of Material Facts, provided that: (i) the Court finds that the material fact at issue is supported by properly cited record evidence; and (ii) any exception under Fed. R. Civ. P. 56 does not apply." L.R. 56(c). If a party files a Statement of Material Facts that does not comply with Rule 56.1, among other things, the Court may strike the Statement "or enter other sanctions that the Court deems appropriate." L.R. 56(d). Here, for noncompliant opposition Statements of Facts, the Court will treat the factual allegations at issue as undisputed facts, provided they are supported by the evidence.
Plaintiff issued a Businessowners Policy ("Policy") [DE 24-2] to Rodriguez P.A. on March 28, 2016. This Policy was in effect at the time of the auto accident in May 2016. Section II of the Policy provides in part:
A. Coverages
1. Business Liability
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for ... injury[ ] to which this insurance does not apply. We may at our discretion, investigate any "occurrence" and settle any claim or "suit" that may result.
(Policy at 41.)
The Policy includes a Hired Auto and Non-Owned Auto Liability Endorsement. (Id. at 64.) The Endorsement provides:
1. Hired Auto Liability
The insurance provided under Paragraph A.1. Business Liability in Section II - Liability, applies to "bodily injury" or "property damage" arising out of the maintenance or use of a "hired auto" by you or your "employees" in the course of your business.
2. Non-Owned Auto Liability
The insurance provided under Paragraph A.1. Business Liability in Section II - Liability, applies to "bodily injury" or "property damage" arising out of the use of any "non-owned auto" in your business by any person.
....
"Hired Auto" means any "auto" you lease, hire, rent or borrow. This does not include any "auto" you lease, hire, rent or borrow from any of your "employees", your partners or your "executive Officers" or members of their households.
"Non-Owned Auto" means any "auto" you do not own, lease, hire, rent or borrow which is used in connection with your business. This includes "autos" owned by your "employees", your partners or your "executive officers", or members of their households, but only while used in your business or your personal affairs.
(Id. at 64-65.) The Policy lists those who qualify as insureds under the Endorsement:
a. You;
b. Any other person using a "hired auto" with your permission;
c. For a "non-owned auto":
(1) Any partner or "executive officer" of yours; or
(2) Any "employee" of yours but only while such "non-owned auto" is being used in your business; and
d. Any other person or organization, but only for their liability because of acts or omissions of an insured under a., b. or c. above.
(Id. at 65.) In this litigation, Plaintiff takes the position that the 2013 Mercedes S550V ("Mercedes") Dr. Rodriguez was driving at the time of the accident, is not a "hired auto," a "non-owned auto," or a vehicle that was being used in Rodriguez P.A.’s business at the time of the accident and, thus, there is no coverage. (See Pl.’s Mot. for Summ. J.) Defendants disagree. (See Defs.’ Am. Mot. for Summ. J.)
Turning back to the Policy, it has a notice provision, which places the following obligations on the insured:
2. Duties In The Event Of Occurrence, Offense, Claim Or Suit
a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include:
(1) How, when and where the "occurrence" or offense took place;
(2) The names and addresses of any injured persons and witnesses; and
(3) The nature and location of any injury or damage arising out of the "occurrence" or offense.
b. If a claim is made or "suit" is brought against any insured, you must:
(1) Immediately record the specifics of the claim or "suit" and the date received; and
(2) Notify us as soon as practicable.
You must see to it that we receive written notice of the claim or "suit" as soon as practicable.
c. You and any other involved insured must:
(1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or "suit";
(2) Authorize us to obtain records and other information;
(3) Cooperate with us in the investigation, or settlement of the claim or defense against the "suit"; and
(4) Assist us, upon our request, in the enforcement of any right against any person or organization that may be liable to the insured because of injury or damage to which this insurance may also apply.
(Id. at 52.)
B. Accident and Notice to Plaintiff
On May 11, 2016, Dr. Rodriguez left his home in Miami, Florida, between 7 p.m. and 9 p.m., to go to Seminole Hard Rock Hotel and Casino ("Hard Rock") in Hollywood, Florida. At the time, Dr. Rodriguez was driving the Mercedes. The purpose of this trip to Hard Rock is disputed. Defendants maintain that it was for a business purpose, considering Dr. Rodriguez's testimony that his intention that night was to deliver medication to a patient, certain patients that he saw in his office were employees of Hard Rock, and, in the past, he had visited Hard Rock to treat patients on a pro bono basis and to meet with colleagues to discuss medicine. On the other hand, Plaintiff argues that Dr. Rodriguez went to Hard Rock for his personal enjoyment based on his statement that he spent three to four hours gambling that night, he did not see or treat any patients, he was not certain if the patient he brought the medication for was working that night, he had made no specific plans to meet the patient, and he frequently visited the Hard Rock for personal reasons, including to gamble.
See Dr. Rodriguez June 15, 2019 Dep. (in the Underlying Suit) [DE 69-3] 22:18-23:2; Dr. Rodriguez Mar. 7, 2019 Sworn Statement [DE 66-2] 39:9-40:6, 50:17-23; Dr. Rodriguez Aug. 7, 2019 Dep. (in this case) [DE 66-6] 32:10-36:11, 44:12-22, 116:2-17.
Dr. Rodriguez Aug. 7, 2019 Dep. 49:16-24, 52:5-25, 62:22-63:8, 68:16-69:8, 99:10, 101:23-102:4; Dr. Rodriguez Mar. 7, 2019 Sworn Statement 32:8-10, 33:4-8, 34:7-21, 38:3-12, 39:4-7, 43:3, 54:21-55:8; Dr. Rodriguez June 15, 2019 Dep. 46:8-10.
The parties also dispute whether Rodriguez P.A. had an ownership interest in the Mercedes, which is pertinent to the issue whether the vehicle qualifies as a "Non-Owned Auto" under the Policy.
Around 12:30 a.m., shortly after Dr. Rodriguez left Hard Rock to return home, he was involved in an auto accident that resulted in the death of Jordan Dallas West ("Mr. West"). On October 10, 2016, Patricia West ("Ms. West"), as personal representative of the estate of Mr. West, filed an auto negligence lawsuit against Dr. Rodriguez in state court in Miami, Florida (the "Underlying Suit"). (See West v. Rodriguez, et al. , Case No. 2016-026063-CA-01.) In June 2017, Ms. West filed an Amended Complaint [DE 1-1] in the Underlying Suit, naming Rodriguez P.A. as a defendant. Ms. West's Amended Complaint alleges that Rodriguez P.A. owned the Mercedes; at the time of the accident, Dr. Rodriguez was acting within the scope of his employment with Rodriguez P.A.; and Rodriguez P.A. is "vicariously and strictly liable for the negligence" of Dr. Rodriguez "under the Dangerous Instrumentality Doctrine." (DE 1-1 ¶¶ 11-12, 25.)
On October 2, 2017, counsel for Dr. Rodriguez emailed a copy of the Policy to counsel for Ms. West. (Pl.’s. Statement of Facts ¶¶ 19, 22.) Plaintiff first received notice of the Underlying Suit on September 11, 2018 , when it received a letter from counsel for Ms. West. (Id. ¶ 19.) Upon receiving notice of the Underlying Suit, Plaintiff immediately commenced an investigation and issued a Reservation of Rights letter on October 10, 2018, agreeing to participate in the ongoing defense of Defendants while reserving the right to deny coverage and recoup defense costs and expenses paid, should it be later determined that there is no coverage. (Id. ¶ 24.) In the letter, Plaintiff also requested that Dr. Rodriguez provide, "as soon as possible," certain information concerning the Underlying Suit, including, copies of court filings, communications between Defendants and attorneys in the case, discovery material, and settlement offers and demands. (See DE 66-6, Comp. Ex. 4.) Plaintiff further requested that Dr. Rodriguez "provide a statement, under oath, regarding the claim," and proposed that the statement be scheduled for October 24, 2018. (Id. ) Dr. Rodriguez did not provide a statement on October 24th or provide the requested information. Rather, from October 17, 2018 through February 15, 2019, Plaintiff continued to contact Defendants’ counsel to obtain the requested documents and statement. (Pl.’s. Statement of Facts ¶¶ 27-28.) Plaintiff eventually filed this suit on January 8, 2019, and Dr. Rodriguez provided a statement to Plaintiff on March 7, 2019. (Id. ¶ 33.)
On June 20, 2019, Plaintiff served its First Set of Interrogatories on Defendants. Among other things, Plaintiff sought to identify "the names and positions of employees at the Hard Rock Casino who are familiar with any professional or medical services offered by David Rodriguez, P.A." (DE 76-1 at Interr. No. 1.) Plaintiff expressly noted that "upon request, [it] will stipulate to a protective order limiting the use/disclosure of any protected health information to ensure compliance with Health Insurance Portability and Accountability Act (‘HIPAA’)." (Id. ) On August 1, 2019, Defendants served their Responses to Plaintiff's Interrogatories [DE 76-2], declining to respond to Interrogatory 1 based on HIPAA. On September 18, 2019, the parties jointly moved for entry of a protective order, which was entered by the Court on October 17, 2019. (See DE 61 & 62.) On October 30, 2019, Defendants emailed to Plaintiff a list of six individuals, one of whom was deceased, in regard to Interrogatory 1. (See Emails [DE 71-11].) On November 14, 2019, one day before the discovery cutoff in this case, counsel for Defendants emailed Plaintiff's counsel eight additional names, increasing the list of names to fourteen. (Id. ) Defendants incorporated this information and served their Supplemental Responses to Plaintiff's First Set of Interrogatories [DE 76-3] on December 12, 2019, identifying employees at Hard Rock with potentially discoverable information.
II. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56, "summary judgment is proper 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." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[G]enuine disputes of facts are those in which the evidence is such that a reasonable jury could return a verdict for the non-movant." Mann v. Taser Int'l, Inc. , 588 F.3d 1291, 1303 (11th Cir. 2009) (internal marks and citation omitted). A fact is material if, under the applicable substantive law, it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A party seeking summary judgment bears the initial responsibility of supporting its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323, 106 S.Ct. 2548. "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249, 106 S.Ct. 2505. 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 and must resolve all reasonable doubts about the facts in favor of the non-movant." Rioux v. City of Atlanta, Ga. , 520 F.3d 1269, 1274 (11th Cir. 2008) (internal marks and citation omitted).
III. DISCUSSION
Given that the Amended Complaint invokes the Court's diversity jurisdiction, the Policy was negotiated in Florida, and the parties both rely on Florida law in their papers, Florida law applies. See State Farm Mut. Auto. Ins. Co. v. Duckworth , 648 F.3d 1216, 1218 (11th Cir. 2011) ("Florida courts apply the law of the jurisdiction in which the contract was entered into"). In Florida, an insured's failure "to give a timely notice of loss in contravention of a policy provision is a legal basis for the denial of recovery under the policy." Ideal Mut. Ins. Co. v. Waldrep , 400 So. 2d 782, 785 (Fla. 3d DCA 1981). "The question of whether an insured's untimely reporting of loss is sufficient to result in the denial of recovery under the policy implicates a two-step analysis." LoBello v. State Farm Fla. Ins. Co. , 152 So. 3d 595, 599 (Fla. 2d DCA 2014) (citation omitted). The first step is to determine whether the insured provided timely notice. Id. (citation omitted). Next, if notice was untimely, "prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice." Bankers Ins. Co. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985) (citation omitted). Under Florida law, " ‘the burden [is on] the insured or the third-party beneficiary to prove the lack of prejudice.’ " Gemini II Ltd. v. Mesa Underwriters Specialty Ins. Co. , 592 F. App'x 803, 805 (11th Cir. 2014) (citation omitted); Macias, 475 So. 2d at 1218 (same).
A. Notice
The Policy unambiguously requires the insured to notify Plaintiff "as soon as practicable of an ‘occurrence’ or an offense which may result in a claim ... [and] of the specifics of the claim or ‘suit’ and the date received." (Policy at 52 (italics added).) "[U]nder Florida law, ‘prompt,’ ‘as soon as practicable,’ ‘immediate,’ or comparable phrases have been interpreted to mean that notice should be given ‘with reasonable dispatch and within a reasonable time in view of all of the facts and circumstances of the particular case.’ " Yacht Club on the Intracoastal Condo. Ass'n, Inc. v. Lexington Ins. Co. , 599 F. App'x 875, 879 (11th Cir. 2015) (citing State Farm Mut. Auto. Ins. Co. v. Ranson , 121 So. 2d 175, 181 (Fla. 2d DCA 1960) ). " ‘Notice is necessary when there has been an occurrence that should lead a reasonable and prudent man to believe that a claim for damages would arise.’ " Id. (citing Waldrep , 400 So. 2d at 785 ). " ‘While the question as to what is a reasonable time, depending as it does upon the surrounding circumstances, is ordinarily for decision by the trier of facts, ... when facts are undisputed and different inferences cannot reasonably be drawn therefrom, the question is for the court.’ " Id. (citing Ranson , 121 So. 2d at 182 ). On the undisputed facts of this case, it is apparent that Defendants did not give timely notice as required by the Policy.
The accident involving the Mercedes occurred in May 2016, the Underlying Suit was filed in October 2016, and Rodriguez P.A. was added as a defendant in June 2017. On September 11, 2018, Plaintiff was notified of the suit upon receipt of a letter from counsel for Ms. West. Thus, notice came from a third party two years after the accident, roughly two years after the Underlying Suit was filed, and well over a year after Rodriguez P.A. was added as defendant. Upon the accident occurring and Mr. West's immediate death, a reasonable and prudent man would believe that a claim for damages would arise, including a claim against Rodriguez P.A., especially considering Dr. Rodriguez's position that he was at the Hard Rock for business purposes. Defendants do not deny that they delayed in notifying Plaintiff, or present evidence that they ever notified Plaintiff of the Underlying Suit, prior to Plaintiff first contacting Defendants. Based on the record, as a matter of law, the Court finds that notice to Plaintiff was not timely under the Policy, and no reasonable trier of fact could conclude otherwise. See, e.g., PDQ Coolidge Formad, LLC v. Landmark Am. Ins. Co. , 566 F. App'x 845, 849 (11th Cir. 2014) (collecting cases and noting that Florida courts have held that a six-month or less period is considered late notice); Wheeler's Moving & Storage, Inc. v. Markel Ins. Co. , No. 11-80272-CIV, 2012 WL 3848569, at *6 (S.D. Fla. Sept. 5, 2012) (finding notice provided two years after the occurrence and eighteen months after suit was filed untimely as a matter of law). As a result, in this case, a presumption of prejudice to Plaintiff is established.
B. Prejudice
The burden is now on Defendants to prove the lack of prejudice. Gemini II Ltd. , 592 F. App'x at 805. "Prejudice is properly resolved on summary judgment where an insured fails to present evidence sufficient to rebut the presumption." PDQ Coolidge Formad, LLC , 566 F. App'x at 849. Defendants do not proffer any evidence to rebut the presumption of prejudice to Plaintiff. Instead, to meet their burden, Defendants argue that Plaintiff had the opportunity to engage in written discovery and to take statements from Dr. Rodriguez in March 2019—almost three years after the accident—and in August 2019. (Defs.’ Resp. [DE 70] at 5.) This is not enough for Defendants to meet their burden. Florida law recognizes that an " ‘insurer is prejudiced by untimely notice when the underlying purpose of the notice requirement is frustrated by late notice.’ " 1500 Coral Towers Condo. Ass'n, Inc. v. Citizens Property Ins. Corp. , 112 So. 3d 541, 544 (Fla. 3d DCA 2013) (citation omitted). The purpose of a provision for notice and proof of loss goes beyond mere causation and is "to enable the insurer to evaluate its rights and liabilities, to afford it an opportunity to make a timely investigation, and to prevent fraud and imposition upon it." Laster v. U. S. Fid. & Guar. Co. , 293 So. 2d 83, 86 (Fla. 3d DCA 1974) (citation omitted). Even with Dr. Rodriguez's untimely statements, the purpose of the notice requirement was frustrated by the late notice of the claim.
Indeed, Plaintiff was deprived of a meaningful opportunity to investigate at the outset of the Underlying Suit, to avoid litigation, and to evaluate settlement from the outset. For instance, Plaintiff was deprived of the opportunity to contribute to defense strategy from the early stages of the Underlying Suit. In fact, by the time Ms. West notified Plaintiff of the claim in September 2018, the Underlying Suit was only one month away from trial. While trial was continued, Plaintiff was not able to help shape the record leading up to trial. See Wheeler's Moving & Storage, Inc. , 2012 WL 3848569, at *6 ("An insurer suffers prejudice when it is denied the opportunity to eliminate or reduce its loss or better investigate and assess its rights and liabilities.") (internal citation and marks omitted).
Additionally, Plaintiff did not get the opportunity to take witness statements while memories were fresh. This problem is exemplified by material inconsistencies in Dr. Rodriguez's own testimony over time. What is worse, though Dr. Rodriguez is a key witness, Plaintiff did not get to take his statement until March 7, 2019, almost three years after the accident. Then, Defendants did not provide Plaintiff with a complete list of Hard Rock employees with potentially discoverable information until one day before discovery cutoff in this action, and Defendants did not provide responses, under oath, concerning Dr. Rodriguez's patients at Hard Rock until December 2019. In the end, Defendants have not presented evidence to overcome the presumption of prejudice or to create a fact issue that would preclude summary judgment.
E.g. , compare : Dr. Rodriguez Mar. 7, 2019 Sworn Statement 36:12-15 (he did not bring the medication into Hard Rock because he "never" brings it in until he sees the patient), with Dr. Rodriguez Aug. 7, 2019 Dep. 58:4-60:7 (he took one of the medications into Hard Rock); Dr. Rodriguez Aug. 1, 2018 Aff. ¶ 3 [DE 66-2] ("[A]t the time of the accident, [Dr. Rodriguez] was neither in the course and scope of his employment with [Rodriguez P.A.], nor was he on any errand for [Rodriguez P.A.]), with Dr. Rodriguez Aug. 7, 2019 Dep. 47:13-22 (he went to Hard Rock to see, and provide medication for, a patient); Dr. Rodriguez Mar. 7, 2019 Sworn Statement 36:12-15 (once at Hard Rock, he made no effort to determine if his patient was working that night), with Dr. Rodriguez Aug. 7, 2019 Dep. 60:11-25, 65:9-66:13 (on arrival, he asked an employee in the VIP area if the patient was working and the employee indicated the patient was working that night).
Defendants attempt to excuse the late disclosure by arguing that they did not want to violate HIPAA. This argument is meritless because Defendants could have promptly sought a protective order. In fact, Defendants should have promptly sought a protective order in order to meet their discovery obligations at the outset of this case. See Fed. R. Civ. P. 26(a)(1)(A) ("Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment ....").
To show that Plaintiff was not prejudiced, Defendants also argue that Plaintiff, once notified of the suit, (1) could have obtained discovery from Ms. West, (2) had access to pleadings, depositions, and discovery through the attorneys Plaintiff hired, who were already involved in the Underlying Suit, and (3) could have settled with Ms. West. (Defs.’ Resp. at 6.) This argument is neither here nor there; it does not constitute evidence sufficient to demonstrate lack of prejudice, and it effectively seeks to shift the burden of showing lack of prejudice to Plaintiff, which is impermissible.
In short, Rodriguez P.A.’s failure to notify Plaintiff raised a presumption of prejudice as to Plaintiff, and Defendants failed to present evidence sufficient to rebut the presumption. Thus, as a matter of law, Plaintiff is not obligated to defend Defendants in the Underlying Suit and summary judgment in favor of Plaintiff is proper.
C. Duty to Indemnify and Reimbursement
Florida law is clear, and the parties agree, that a finding that an insurer has no duty to defend necessarily includes a finding that it has no duty to indemnify. See Defs.’ Resp. at 5; Pl.’s Mot. at 5; see also Trailer Bridge, Inc. v. Illinois Nat. Ins. Co. , 657 F.3d 1135, 1146 (11th Cir. 2011) (noting that a "court's determination that the insurer has no duty to defend requires a finding that there is no duty to indemnify.") (citation omitted); WellCare of Fla., Inc. v. Am. Int'l Specialty Lines Ins. Co. , 16 So. 3d 904, 906 (Fla. 2d DCA 2009) ("[T]he duty to indemnify is narrower than the duty to defend and thus cannot exist if there is no duty to defend."). Therefore, having found that Plaintiff has no duty to defend, the Court also finds that Plaintiff has no duty to indemnify Defendants in the Underlying Suit.
As a final matter, the Court also finds that Plaintiff is entitled to recover fees and costs incurred in defending Defendants in the Underlying Suit. "Under Florida law, a liability insurer that has reserved the right to seek reimbursement is entitled to recover fees and costs once it is determined that the insurer has no duty to defend." Certain Interested Underwriters at Lloyd's, London v. Halikoytakis , 556 F. App'x 932, 933 (11th Cir. 2014) ("[The insurer] defended [defendant] for over two years. When [defendant] accept[ed] the defense, it necessarily agreed to the terms on which [the insurer] extended the offer, including the reservation of rights.") (citing Colony Ins. Co. v. G & E Tires & Service, Inc. , 777 So. 2d 1034, 1038-39 (Fla. 1st DCA 2000) ) (internal quotation marks omitted). Here, Plaintiff's Reservation of Rights specifically states that it "includes ... the right to recover defense costs and indemnity payments from you, should any payments be made ... [and the] right to seek reimbursement of all attorneys’ fees, costs and expenses it incurs in the event it is later determined that there was no duty to defend you in the underlying lawsuit." (DE 66-6 at 84.) In their summary judgment papers, Defendants do not oppose Plaintiff's request for reimbursement. Hence, Plaintiff's request for reimbursement is granted. Therefore, it is
"Federal courts sitting in diversity look to state law in determining whether a liability insurer can recover fees and costs." Halikoytakis , 556 F. App'x at 932.
ORDERED that:
1. Plaintiff, Starr Indemnity & Liability Company's Motion for Summary Judgment [DE 67] is GRANTED . Accordingly, the Court holds that:
a. Starr has no duty to defend or indemnify Dr. David Rodriguez and David Rodriguez, M.D., P.A., in the Underlying Suit; and
b. Starr is entitled to reimbursement of fees and costs incurred in defending Dr. Rodriguez and David Rodriguez, M.D., P.A., in the Underlying Suit. If the parties cannot agree on the amount of reimbursement owed to Plaintiff, Plaintiff shall move for a determination of that issue no later than October 15, 2020 .
2. Defendants’ Amended Joint Motion for Summary Judgment [DE 68] is DENIED .
3. The Court will enter a separate judgment.
4. All pending motions not otherwise ruled on are DENIED AS MOOT .
5. This case is CLOSED .
DONE AND ORDERED in Fort Lauderdale, Florida, this 28th day of September 2020.