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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CHUBB SURPLUS LINES

INSURANCE COMPANY; ILLINOIS

UNION INSURANCE COMPANY,

Plaintiffs,

v. Case No.: 1:20-cv-21770-XXXX

SUMMERS FIRE SPRINKLERS, INC.;

LATITUDE ON THE RIVER

CONDOMINIUM ASSOCIATION, INC.

Defendants.

/

DEFENDANT, SUMMERS FIRE SPRINKLERS, INC,’S 

REPLY TO WESTCHESTER’S RESPONSE IN OPPOSITION TO DEFENDANT’S 

MOTION TO DISMISS, OR ALTERNATIVELY, MOTION TO STAY AND 

INCORPORATED MEMORANDUM OF LAW

COMES NOW, Defendant, SUMMERS FIRE SPRINKLERS, INC. (“Summers”), by 

and through its undersigned counsel, and hereby files this Reply to Plaintiffs’, WESTCHESTER 

SURPLUS LINES INSURANCE COMPANY and ILLINOIS UNION INSURANCE 

COMPANY’s hereinafter individually referred to as “WSLIC” or “ILU” and collectively 

referred to as (“Chubb”), Response In Opposition to Defendant, Summers’s Motion to Dismiss, 

or Alternatively, Motion to Stay, and in support thereof, would state as follows: 

After reviewing Chubb’s Response, it is apparent that the parties may be in agreement 

concerning how this case should be adjudicated. The entire purpose of Summers’ Motion to 

Dismiss or Stay was to make clear that factual issues should be not determined in the coverage 

action while there is an underlying liability action pending. In response, Chubb did not argue 

that the Court should decide either the duty to defend or duty to indemnify based on factual 

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issues. Rather, Chubb argued that the duty to indemnify can be resolved “without considering 

the underlying facts” because if there is no duty to defend, there is no duty to indemnify. 

(Chubb’s Resp., p. 3 (DE 22)). Summers agrees, with the caveat that this Court’s resolution of 

the initial determination of the duty to defend should be limited to this Court applying the “eight 

corners” rule, under which the duty to defend is determined solely by looking at the allegations 

of the underlying complaint compared to the provisions of the insurance policy. 

However, this agreement does not change the fact that Chubb’s Complaint does actually 

seek a determination of coverage related to facts outside of the four corners of the underlying 

complaint. For example, in Count 1, Chubb seeks a determination that there is no duty to defend 

or indemnify because the policy provides that property damage must occur during the policy 

period and that “[t]o the extent property damage occurred after the WSLIC policies lapsed, there

would be no coverage under the WSLIC policies.” (Chubb Comp., ¶ 45 (DE 1)). Likewise, in 

Count II of the Complaint, Chubb seeks a determination that there is no duty to defend or 

indemnify based on a policy provision which states there is no coverage if an insured knew, prior 

to the policy period, that property damage had occurred in whole or in part. (Chubb Comp., ¶ 48 

(DE 1)). Chubb then alleges that this provision precludes the duty to defend and indemnify 

because, “based on the Chapter 558 Notice and other evidence, Summers had knowledge of 

damage in the condominium as early as 09/30/2011.” (Chubb Comp., ¶ 51 (DE 1)) (emphasis 

added). Contrasting these parts of the Complaint with other allegations does make it somewhat 

unclear the analysis Chubb seeks to have this Court apply. For example, in Count IV, in which 

Chubb seeks a determination of coverage based on an exclusion for expected or intended injuries, 

Chub at least makes some reference to the underlying complaint’s allegations by stating that 

“[t]he Association alleges the defendants “knew or should have known that certain CPVC 

material was incompatible with certain metallic materials, including metallic ABF and ABF II 

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pipe[.]”(Chubb Comp., ¶ 60 (DE 1)). Such a reference to the allegations of the underlying 

complaint as compared to requesting a consideration of coverage based on “other evidence” 

shows Chubb is actually seeking to have the Court make at least some determinations of coverage 

based on facts outside of the allegations of the underlying complaint. 

Because Chubb’s Complaint seeks a coverage determination based on evidence and facts 

outside the four corners of the Complaint, Chubb’s Complaint should be dismissed or stayed as 

it is premature for the Court to look to facts outside of the allegations of the underlying pleadings 

and Chubb’s Complaint is not properly limited to a request for a declaration on the duty to 

defend. 

By: /s/ Amanda K. Anderson

Mark A. Boyle, FBN: 005886

Amanda K. Anderson, FBN: 0091297

Boyle, Leonard & Anderson, P.A. 

2050 McGregor Blvd. 

Fort Myers, FL 33901

Telephone: (239) 337-1303

Facsimile: (239) 337-7674

Primary: EService@Insurance-Counsel.com

Secondary #1: MBoyle@Insurance-Counsel.com

Secondary #2: AAnderson@Insurance-Counsel.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on September 10, 2020, pursuant to Fla. R. Jud. Admin. 

2.516, a true and correct copy of the foregoing has been furnished to all parties of record via 

Florida Courts e-portal.

By: /s/ Amanda K. Anderson

Mark A. Boyle, FBN: 005886

Amanda K. Anderson, FBN: 0091297

2050 McGregor Blvd. 

Fort Myers, FL 33901

Telephone: (239) 337-1303

Facsimile: (239) 337-7674

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Primary: EService@Insurance-Counsel.com

Secondary #1: MBoyle@Insurance-Counsel.com

 Secondary #2: AAnderson@Insurance-Counsel.com

SERVICE LIST

Sina Bahadoran, Esquire

Junaid N. Savani, Esquire

Clyde & Co US LLP

1221 Brickell Avenue, Suite 1600

Miami, FL 33131

(305)446-2646

Sina.bahadoran@clydeco.us

Junaid.savani@clydeco.us

Counsel for Plaintiff

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