26 Fla. L. Weekly Supp. 105a

Online Reference: FLWSUPP 2602PETZInsurance — Liability — Duty to defend — General contractor not entitled to summary judgment on its third-party complaint against subcontractor’s liability insurer, claiming that contractor was an additional insured under policy and that insurer had duty to defend it in action brought against contractor and subcontractor/named insured by bicyclist who was injured when he struck manhole cover near construction site that was substantially ajar and protruding above surface of roadway — Policy, as plainly written, provided coverage to unnamed “Additional Insureds” confronted with claim based upon the negligent acts or omissions of the named insured, and plaintiff sued contractor for, and only for, its own alleged negligence

PHILLIP PETZOLD, a single man, Plaintiff, v. COMMUNITY ASPHALT CORP., et. al., Defendants. COMMUNITY ASPHALT CORP., Third Party Plaintiff, v. EVANSTON INSURANCE CO., Third Party Defendant. I&C EARTHMOVERS CORP., Plaintiff, v. EVANSTON INSURANCE CO., Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County, Circuit Civil Division. Case Nos. 12-32219 CA 22, 16-4174 CA 22. April 19, 2018. Michael A. Hanzman, Judge.

ORDER DENYING THIRD PARTY PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Third Party Plaintiff, Community Asphalt Corp. (“CAC”), moves for summary judgment against Third Party Defendant, Evanston Insurance Company (“Evanston”), insisting that Evanston had a duty to defend it in a personal injury case brought against both CAC and I&C Earthmovers Corporation (“Earthmovers”) by Phillip Petzold (“Petzold”). For the reasons set forth below, the Court finds that Evanston had no “duty to defend” CAC in that action and, as a result, denies CAC’s motion.

II. UNDISPUTED FACTS

A. The Policy

CAC was the general contractor retained by the Miami-Dade County Public Works Department to improve streets on and adjacent to the Venetian Causeway. On May 5, 2011 CAC entered into a subcontract, retaining Earthmovers to provide a portion of the labor and materials for the project, including the purchase and installation of manholes. The subcontract obligated Earthmovers to provide CAC with specified insurance, mandating that:

B) Subcontractor Procured Insurance: Subcontractor shall obtain prior to commencing work hereunder, and shall maintain at all times relevant hereto, policies of Worker’s Compensation and Employer’s Liability Insurance, comprehensive general liability insurance including but not limited to coverages for Premises and Operations Liability; Personal Injury Liability; Independent Contactors Coverage; Products — Completed Operations Coverage; Coverage for “X” — Explosion, “C” — Collapse, and “U” — Underground Property Damage Liability; Contractual Indemnification Coverage; and a provision for contractual indemnification pursuant to this Subcontract, and comprehensive automobile liability insurance, in such companies acceptable to Contractor, and in such amounts as are required by Article 7-13 of the current edition of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction; and in the absence of specified coverage in Article 7-13,. . . Subcontractor shall deliver to Contractor acceptable certificates or policies of insurance prior to performing any work on the Project. Such Certificates shall include the provision that said policies of insurance shall not be canceled or materially modified without thirty (30) days prior written notice to Contractor. . . Subcontractor shall notify its insurers in writing that said Notices of Termination or Cancellation shall be provided to Contractor. All of the insurance policies as hereinbefore provided pursuant to this paragraph shall name the Contractor and Owner as additional insured thereunder as per CG2010 11/85 or its equivalent, shall provide for a Per Project Aggregate, shall assume and provide the Contractor’s and Owner’s defense, acceptable to Contractor, and shall serve to indemnify and protect the Contractor and Owner and save each of them harmless from all claims, suits or liabilities as set forth in these terms and conditions, specifically Paragraph 34 of this Subcontract, or any other of them, without limitation, restriction, or reservation. . . .

Id. at ¶ 23.

To fulfill this contractual obligation (or at least attempt to fulfill it) Earthmovers secured from Evanston what is known as a “Blanket Additional Insured Endorsement,” amending its Commercial General Liability policy. That endorsement provides:

Section II — WHO IS AN INSURED of the Commercial General Liability form is amended to include:

Person or Entity: AS AN ADDITIONAL INSURED, ANY PERSON OR ORGANIZATION TO WHOM YOU ARE OBLIGATED BY VALID WRITTEN CONTRACT TO PROVIDE SUCH COVERAGE BUT ONLY AS RESPECTS NEGLIGENT ACTS OR OMISSIONS OF THE Named Insured and only for occurrences, claims or coverage not otherwise excluded in the policy.

So as this endorsement plainly says, the definition of an “insured” was expanded to include “any person or organization” that Earthmovers was contractually obligated to provide coverage to (i.e., CAC), “but only as respects negligent acts or omission of the named insured [i.e., Earthmovers]. Put simply, the carrier agreed to provide coverage to additional insureds [i.e., CAC] facing exposure due to any negligent act or omission of its named insured [Earthmovers].

B. The Lawsuit

In 2012 Petzold filed suit in the circuit court for Miami-Dade County naming as defendants both CAC and Earthmovers. See Petzold v. Community Asphalt Corp, and I&C Earthmovers, Corp. Case No.: 12-32219 CA (22). Petzold alleged that “on or about November 15, 2011 he was riding his bicycle at or near the site of the construction” work being performed by the defendants “near the intersection of Venetian Causeway and De Lido Drive,” and that he “struck the raised edge of [a] manhole cover” that defendants “moved so that the upper edge was substantially ajar” protruding “above the surface of the roadway.” Petzold‘s Second Amended Complaint, ¶¶ 6, 8, 12. Premised upon these general allegations, Petzold asserted a claim for the “Negligence of Defendant Community Asphalt Corp” (Count I), and a claim for “Negligence of Defendant I&C Earthmovers Corp” (Count II). Petzold did not allege that CAC was liable for any negligent act or omission on the part of Earthmovers, either under a theory of respondent superior, vicarious liability in general, or otherwise. Rather, the Petzold complaint contained two separate counts for active negligence — one against CAC and one against Earthmovers.

CAC tendered the defense of the case to Evanston, claiming that it was entitled to a defense and indemnity as an “Additional Insured” under the Earthmovers’ policy. Evanston rejected this tender, asserting that “[i]n order for the Additional Insured endorsement to apply, the occurrence must have arisen out of the name insured’s operation.” See February 25, 2013 correspondence from Rebecca L. Anderson to Antoinette Culbreth. On October 20, 2015 CAC filed its Third Party Complaint against Evanston seeking a declaration that it was entitled to coverage as an “Additional Insured” under the Earthmovers policy, and an award of attorney’s fees and costs. Shortly thereafter both CAC and Earthmovers settled the underlying case with Petzold, and CAC withdrew any claim seeking indemnity from Evanston. Thus, the only question presented now (as between CAC and Evanston) is whether Evanston had a duty to defend CAC in the Petzold litigation.

I. GOVERNING LAW

The legal principles to be applied here are well settled. Like any contract, an insurance agreement is “construed in accordance with the plain language of the policy as bargained for by the parties.” Fayad v. Clarendon Nat. Ins. Co., 899 So. 2d 1082 (Fla. 2005) [30 Fla. L. Weekly S203a]; Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 33 (Fla. 2000) [25 Fla. L. Weekly S211a]. Furthermore, to the extent any ambiguity exists, the carrier — as the writer of the contract — “is bound by the language of the policy, which is to be construed liberally in favor of the insured and strictly against the insurer.” Washington Nat. Ins. Corp. v. Ruderman, 117 So. 3d 943 (Fla. 2013) [38 Fla. L. Weekly S511a]; St. Paul Fire & Marine Ins. Co. v. Llorente, 156 So. 3d 511 (Fla. 3d DCA 2014) [40 Fla. L. Weekly D67a]. It also is well settled that the interpretation of an insurance contract presents a question of law because: (a) the interpretation of an unambiguous contract provision raises no factual dispute; and (b) even if the relevant provision is found to be ambiguous (i.e., susceptible to more than one reasonable interpretation) the ambiguity is to be construed against the insurer and in favor of coverage. See Penzer v. Transp. Ins. Co., 29 So. 3d 1000 (Fla. 2010) [35 Fla. L. Weekly S73a]; Stuyvesant Ins. Co. v. Butler, 314 So. 2d 567 (Fla. 1975); Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985). Consideration of extrinsic evidence is a rare matter of last resort to be employed only when an ambiguity cannot be resolved without “outside aid.” Friedman v. Virginia Metal Products Corp., 56 So. 2d 515, 517 (Fla. 1952).

In construing the policy the Court should read it “as a whole, endeavoring to give every provision its full meaning and operative effect,” and the contract should receive a construction that is “reasonable, practical, sensible, and just.” See Gen. Star Indem. Co. v. W. Florida Vill. Inn, Inc., 874 So. 2d 26 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b]. But “[i]f the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the [other] limiting coverage, the insurance policy is considered ambiguous,” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) [30 Fla. L. Weekly S633a], and “any ambiguity which remains after reading the policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer.” Ruderman, supra at 949-950.

Finally, the Court must be mindful that the insurer, as the drafter of its policy, is in the best position to construct the contract as it sees fit, and the Court’s task is to apply the parties’ contract as written, not “rewrite” it under the guise of judicial construction. Gulliver Sch., Inc. v. Snay, 137 So. 3d 1045 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D457a] (“[w]here contracts are clear and unambiguous, they should be construed as written, and the court can give them no other meaning”); Pol v. Pol, 705 So. 2d 51, 53(Fla. 3d DCA 1997) [23 Fla. L. Weekly D75a] (“a court cannot rewrite the clear and unambiguous terms of a voluntary contract”). The Court’s duty is to simply apply the terms of the insurance agreement as they would be understood by the “man-on-the-street.” State Farm Fire & Cas. Co. v. Castillo, 829 So. 2d 242 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1845a].

As for a “duty to defend,” it is equally well settled that one arises (or fails to arise) from the “eight corners” of the complaint and policy. Acosta, Inc. v. Nat’l Union Fire Ins. Co., 39 So. 3d 565, 575 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D1712a]; Nat’l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So. 2d 533 (Fla. 1977); McCreary v. Florida Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So. 2d 692 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D2257c]. The underlying complaint must allege facts that “fairly and potentially bring the suit within policy coverage.” Jones v. Florida Ins. Guar. Ass’n, Inc., 908 So. 2d 435, 443 (Fla. 2005) [30 Fla. L. Weekly S581a]. And if it does, a duty to defend arises even though the facts — as later developed — may negate coverage. First Am. Title Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 695 So. 2d 475 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1425b]. An insurer’s duty to defend is therefore broader than its duty to indemnify.

II. ANALYSIS

Applying these settled principles here the Court has little difficulty concluding that Evanston owed CAC no duty to defend the claim brought by Petzold. The policy — as plainly written — provided coverage to unnamed “Additional Insureds” confronted with a claim based upon the “negligent acts or omissions” of the named insured — Earthmovers. Petzold brought no such claim. Rather, he sued CAC for — and only for — its own alleged negligence. This claim did not bring the case “within the scope of coverage” provided to “Additional Insureds,” State Farm Fire & Cas. Co. v. Tippett, 864 So. 2d 31, 35 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2653a], a conclusion which — while obvious — was confirmed in Garcia v. Fed. Ins. Co., 969 So. 2d 288 (Fla. 2007) [32 Fla. L. Weekly S657a], where our Supreme Court held that a policy providing coverage for additional insureds, “with respect to liability because of acts or omissions of” the named insured, clearly “limited coverage to [cases alleging] vicarious liability,” and — as a result — the insurer had no duty to indemnify in a case where the additional insured was sued “for her own negligence.” Id. 291-292. The policy language at issue here [i.e., “but only with respect to acts or omissions of the named insured”] is, for all practical purposes, identical to the language analyzed in Garcia. And the fact that Garcia analyzed the contract while addressing an indemnity (as opposed to a duty to defend) claim is of no moment. If an insurer could not possibly be called upon to indemnify against the claim alleged, it a fortiori has no duty to defend it. Here, Evanston could not, under any circumstances, have been obligated to indemnify CAC against the active negligence claim asserted by Petzold. It therefore had no duty to provide CAC a defense of that claim. See also Consolidation Coal Co., Inc. v. Liberty Mut. Ins. Co., 406 F. Supp. 1292 (W.D. Pa. 1976) (policy providing coverage for additional insured, “but only with respect to acts or omissions of the named insured,” limited coverage to vicarious liability).¹

Undeterred by the plain language of the controlling policy, the holding in Garcia, and the on-point decision in Consolidation Coal — a case our Supreme Court has cited with approval not once — but twice — CAC fights on, directing the Court to: (a) Container Corp. of Am. (despite the fact that the court approved of the holding in Consolidation Coal); and (b) Mid-Continent Cas. Co. v. Royal Crane, LLC, 169 So. 3d 174 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1371c]. Neither case furthers its cause.

In Container Corp. one contracting party — Southern Contractors, Inc. — agreed to indemnify another contracting party — Container Corporation — from “liabilities incurred or arising as a result of the performance by [Southern] of its duties [under the agreement].” Id. at 735. The contract also required Southern to secure liability insurance naming Container as an additional insured. Id. Maryland Casualty — Southern’s insurer — then issued an endorsement to Southern’s policy covering Container as an additional insured regarding any “[i]nterest for operations at operations site by Southern Contractors, Inc.” Id. The policy did not limit the type of claims insured against.

Subsequently, a Southern employee filed suit against Container, alleging he had suffered injuries at Container’s plant as a result of Container’s own negligence. Id. Maryland then brought an action for declaratory judgment to determine whether Container was insured for this claim under Southern’s policy. Id. The trial court entered judgment in Maryland’s favor, concluding “that the policy was limited to coverage for Container’s vicarious liability and did not cover Container for its own negligence.” Id. The first District affirmed, reasoning that “the indemnity language of the underlying contract between Southern and Container made it clear that the coverage provided by the policy was intended to be limited to Container’s vicarious liability.” Id.

On review our Supreme Court began by agreeing that “the indemnity language of the contract [did] not require Southern to hold Container harmless for Container’s own negligence.” Id. But the court then made clear that the indemnity language of the underlying contract was not “dispositive of the coverage issue,” Id., and that it was instead “the language of the policy” that was “controlling.” Id. The court then looked to the policy and concluded that because the additional insured endorsement contained “no limiting language,” Container was entitled to coverage under the Maryland policy for its own negligence arising out of “operations at operations site by Southern Contractors.” Id. at 736.

The insurance policy issued by Evanston — which is “controlling” here — has the “limiting language” that the policy in Container Corp. did not; language making clear that CAC was entitled to be considered an additional insured only as to claims based on “negligent acts or omissions” of Evanston’s insured — Earthmovers. See Garcia, supra. And, as noted earlier, the Container Corp. court embraced the rationale of Consolidation Coal, a case which squarely rejects CAC’s position.

Turning next to Royal Crane, it also involved no more than an interpretation of the controlling insurance contract. The case involved a crane rental agreement which included “an indemnification clause requiring the lessee to indemnify the lessor for all damages arising from the use of the crane.” Id. An accident occurred and the victim sued the lessor, who sought indemnification from the lessee. Id. The lessee then notified its insurer and “requested that a defense be provided pursuant to its commercial general liability insurance policy.” The policy, however, excluded from coverage “bodily injury” or “property damage” claims the insured was “obligated to pay . . . by reason of the assumption of liability in a contract or agreement.” Id. There were, however, two “exceptions” to this contractual “exclusion” from coverage: (a) “where [the insured] would have been liable ‘in the absence of the contract or agreement’ or (2) where [the insured] ‘[a]ssumed’ the liability ‘in a contract or agreement that is an ‘insured contract’. . .” So the question presented was whether the liability faced by the insured was one assumed in an “insured contract” and hence covered.

In addressing this discrete definitional issue, the Royal Crane court first looked to the policy’s definition of an “insured contract.” That term included a contract or agreement “pertaining to your business. . . under which you assume the tort liability of another party to pay for ‘bodily injury’ or ‘property damage’ to a third person or organization, provided the ‘bodily injury’ or ‘property damage’ is caused, in whole or in part, by you or by those acting on your behalf.” Id. at 179. Thus, for the “insured contract exception” to the “assumed contract exclusion” to be triggered, the underlying complaint had to allege that the injury claimed resulted “in whole or part” from an act or omission by the insured (or someone acting on its behalf).

Applying the plain language of the controlling policy, the Royal Crane court rejected the contention that in order to fall within the “insured contract” exception, the underlying claim must be one for vicarious liability. Disagreeing with federal district court decisions embracing this “narrow view,” the Royal Crane court simply interpreted the policy — as written, noting that the definition of an “insured contract” required only that the claim involve a liability for injury “arising, in whole or in part” as a result of an act or omission of the insured and, as a result, its “language indicates that policy coverage is not limited solely to vicarious liability, but that coverage extends to situations in which liability is shared by the insured/indemnitor and its indemnitee.” Id. at 183 (initial citations omitted). Put simply, the definition of an “insured contract” was not limited to circumstances involving only vicarious liability. Royal Crane, like the Container Corp. court, simply applied the contract as written — nothing more or less.

CAC’s wishes notwithstanding, the endorsement provided by Evanston did not extend coverage to unnamed additional insureds for any claim “arising out,” “related to,” “regarding,” “growing out of,” “flowing from,” “originating from,” or “having a connection with” Earthmovers’ performance of its subcontract.² See Am. Empire Surplus Lines Ins. Co. v. Chabad House of N. Dade, Inc., 771 F. Supp. 2d 1336 (S.D. Fla. 2011); United States v. King, 450 Fed. Appx. 794 (11th Cir. 2011); Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528 (Fla. 2005) [30 Fla. L. Weekly S633a]; Hagen v. Aetna Cas. & Sur. Co., 675 So. 2d 963 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D1207a]. Rather, it plainly provides coverage only for liability that might be visited upon an “Additional Insured” due to the negligent acts or omissions of Evanston’s named insured — Earthmovers. As Petzold did not seek to hold CAC liable for any acts or omissions of Earthmovers, CAC never fit within the definition of an “Additional Insured.” It is just that simple. See, e.g., Allen D. Windt., 1 Ins. Claims & Disputes § 4.5 (4th ed. 2003) ([b]efore the general principle regarding the duty to defend applies, it must be shown that the person claiming coverage is, in fact, an insured”). Id. See also Garcia, supra.

As an additional basis to impose upon Evanston a duty to defend it, CAC next insists that the policies separation of insureds provision created a distinct insurance policy for itself and — as a result — “the entire policy must be read as if it applies separately” to CAC. Motion, p. 13. This is so — according to CAC — because “when a policy contains a severability of interest clause, as in this case, the effect of the clause is that when a claim is asserted against one who is an insured under the policy, then that person becomes the insured for the purpose of determining the insurer’s obligation.” Great Glob. Assur. Co. v. Shoemaker, 599 So. 2d 1036, 1039 (Fla. 4th DCA 1992), citing Shelby Mut. Ins. Co. v. Schuitema, 183 So. 2d 571 (Fla. 4th DCA 1966). See also Univ. of Miami v. Great Am. Assur. Co., 112 So. 3d 504 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D392a] (“policy included a condition that the rights or duties applicable to the first named insured, MagiCamp, applied as if each named insured were the only named insured and applied separately to each insured against whom a claim was made”).

This alternative claim advanced by CAC need not detain the Court long, as so-called severability clauses do no more than “make it certain that, when a claim is asserted against one who is an insured under the policy, then that person becomes ‘the insured’ for the purpose of determining the insuror’s (sic) obligations with respect to that claim.” Shelby, supra at 574. These clauses thus ensure that conduct on the part of one insured that might negate coverage will not necessarily be imputed to all other insureds. Mactown, Inc. v. Cont’l Ins. Co., 716 So. 2d 289 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D1665d]. Here, the issue is whether CAC is an “Additional Insured” in the first place, not whether it — as a named insured — is entitled to have the claim against it independently assessed for purposes of a duty to defend or indemnity. Put simply, the severance clause does not “create” coverage for a party who is not an “insured’ or “Additional Insured,” and CAC’s argument places the proverbial cart before the proverbial horse.

During oral argument CAC’s counsel forcefully pled its true position here: that a duty to defend should — and did — exist because: (a) the subcontract makes it clear that Earthmovers (i.e., Evanston’s insured) was responsible for installing the manholes; and (b) Petzold’s complaint made it clear that the accident causing his injury resulted from an improperly placed manhole. Thus, Evanston knew — or with the slightest investigation would have known — that the case against CAC was “really” based on Earthmovers’ alleged negligence. Without directly saying so, CAC urges that the so-called “eight corners” rule is far too rigid, and suggests that Evanston had a duty to investigate the case and determine that Earthmovers was “really” at fault — thereby triggering a duty to defend.

The fact is that the “eight corners” rule typically benefits insureds, as it precludes carriers from “looking behind” the allegations of a complaint in order to ascertain whether the “true facts” support coverage. See, e.g., State Farm Fire & Cas. Co. v. Steinberg, 393 F.3d 1226, 1230 (11th Cir. 2004) [18 Fla. L. Weekly Fed. C133a] (the “duty to defend an insured [under Florida law] is determined solely from the allegations in the complaint against the insured, not by the true facts of the cause of action. . .”); Royal Crane, supra at 180, 181 (“[t]he insurer’s duty to defend arises solely from ‘the facts and legal theories alleged in the pleadings and claims against the insured.’ ” “The merits of the underlying suit are irrelevant.”). This case presents the unusual situation where the rule’s application favors the carrier. But the “eight corners” rule promotes certainty and stability by preventing the parties (and the court) from penetrating the allegations of the underlying complaint in an attempt to discern (and litigate over) what the claims are “really about,” what the facts “really are,” and whether the claim will ultimately be covered. And it is not a one way street. Just as a carrier may not “look behind” the complaint in order to “figure out” that the true facts do not support coverage, it is not required to “look behind” the complaint in order to “investigate” the facts and discern whether they likely support coverage.

The bottom line is that the “eight corners” rule is settled law, regardless of whether its application benefits the insurer or insured, and regardless of whether the result of its application may appear “unfair.” And this long settled rule requires that the Court determine whether Evanston had a duty to defend CAC by looking at nothing other than the allegations made in the underlying suit and the terms of the “controlling. . . language of the policy.” Container Corp., supra at 735.

Upon review of the “eight corners” here, the Court aligns itself with many others rejecting “duty to defend” claims under legally indistinguishable circumstances. See, e.g., Cmty. Asphalt Corp. v. Travelers Indem. Co. of Am., 16-21758-CIV, 2017 WL 4712199 (S.D. Fla. Apr. 26, 2017) (“Alas, the underlying state court Complaint alleges claims against Community Asphalt premised solely on theories of negligence arising from Community Asphalt’s own acts or omissions. . . [Plaintiff’s] Fourth Amended Complaint does not contain any claims for vicarious liability. Accordingly, the Court finds that Defendant does not owe coverage [a duty to defend] to Community Asphalt under the Blanket AI Endorsements of the Subcontractors’ Policies”); Bradfield v. Mid-Continent Cas. Co., 143 F. Supp. 3d 1215, 1229 (M.D. Fla. 2015); United Rentals, Inc. v. Mid-Continent Cas. Co., 843 F. Supp. 2d 1309, 1314 (S.D. Fla. 2012); White Springs Agric. Chems., Inc. v. Gaffin Indus. Servs., Inc., No. 3:11-cv-998-J-32JRK, 2014 WL 905545, at *5 (M.D. Fla. Mar. 7, 2014); Mid-Continent Cas. Co. v. Constr. Servs. & Consultants, Inc., No. 06-CV-80922, 2008 WL 896221, at *3-5 (S.D. Fla. Mar. 31, 2008).

III. CONCLUSION

As this Court has written many times before, “contracts are voluntary undertakings, and contracting parties are free to bargain for — and specify — the terms and conditions of their agreement.” Okeechobee Resorts, L.L.C. v. E Z Cash Pawn, Inc., 145 So.3d 989, 993 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1871a]; City of Pompano Beach v. Beatty, 222 So. 3d 598, 600 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D1556a]; JDJ of Miami, Inc., v. Valdez, et. al., 23 Fla. L. Weekly Supp. 1026a (March 23, 2016). And when parties stipulate to the terms and conditions of their contract, it is not the province of the court to second-guess their wisdom or “substitute [its] judgment for that of the parties in order to relieve one from an alleged hardship of an improvident bargain.” Int’l Expositions, Inc. v. City of Miami Beach, 274 So.2d 29, 30-31 (Fla. 3d DCA 1973). Rather, the court’s task is to apply the parties’ contract as written, not “rewrite” it under the guise of judicial construction. Gulliver Schs., Inc. v. Snay, 137 So.3d 1045, 1047 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D457a] (“Where contracts are clear and unambiguous, they should be construed as written, and the court can give them no other meaning.”) (quoting Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628, 631 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2794a]); Pol v. Pol, 705 So.2d 51, 53 (Fla. 3d DCA 1997) [23 Fla. L. Weekly D75a] (“[A] court cannot rewrite the clear and unambiguous terms of a voluntary contract.”).

CAC may not have received the insurance protection it was entitled to from its “subcontractor,” as the endorsement secured from Evanston did not provide the coverage it claims to have bargained for. But this Court may not expand the coverage Evanston contractually bound itself to provide. Although an insurer’s “duty to defend” is no doubt broad, it is not so broad as to sanction a judicial “rewrite” of the “controlling” contract by declaring CAC to be an “Additional Insured” when it clearly does not fit within the definition employed by the policy.

Based on the foregoing it is hereby ORDERED:

CAC’s Motion for Summary Judgment is DENIED.

__________________

¹In Consolidation Coal — which has been cited with approval twice by our Supreme Court — the district court found the language used there — and here [“but only with respect to acts or omissions of the named insured. . .”] to be ambiguous, but concluded that “[t]he most likely meaning of the subject phrase is that it attempts to limit coverage to those instances where the acts or omissions — the negligence” of the named insured leads to an additional insured’s liability. 406 F. Supp. at 1300. In Garcia, our Supreme Court pointed out that it had approved this analysis in Container Corp. of Am. v. Maryland Cas. Co., 707 So. 2d 733 (Fla. 1998) [23 Fla. L. Weekly S163a], “and confirm[ed] that view today.” Garcia at 292. Our Supreme Court has therefore twice said that the precise language used in the Evanston policy limits coverage to instances where acts or omissions of a named insured results in exposure to an additional insured.

²CAC makes much of the fact that when Evanston denied a duty to defend it wrote that “in order for the Additional Insured endorsement to apply, the occurrence must have arisen out of the name insured’s operations.” See Memo p. 5. CAC uses this statement by Evanston as “proof” that the Additional Insured endorsement broadly covers any claim arising out of Earthmovers’ work. The plain language of the endorsement negates this assertion, and Evanston’s post claim statement — albeit inartful — cannot alter the terms of this unambiguous contract.