1

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

CASE NO: 0:22-cv-62076 

GREGORY TONY, in his official 

capacity as Sheriff of Broward County, 

 Plaintiff, 

vs. 

EVANSTON INSURANCE COMPANY, 

 Defendant. 

_______________________________/ 

EVANSTON’S MOTION FOR FINAL SUMMARY JUDGMENT AND 

INCORPORATED MEMORANDUM OF LAW 

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Evanston Insurance Company (“Evanston”), pursuant to Rule 56, Fed. R. Civ. P. files its 

Motion for Final Summary Judgment against Plaintiff, GREGORY TONY, in his official capacity 

as Sheriff of Broward County (“BSO”). 1 The policy and years of precedent compel the 

determination that the Parkland Shooting Incident constitutes more than one “occurrence,” 

requiring the payment of a separate Self-Insured Retention (“SIR”) for each gunshot/victim. 

MEMORANDUM OF LAW 

I. Summary Judgment Standard

Summary judgment should be rendered when, viewing the record in the light most 

favorable to the non-moving party, there is no genuine issue of material fact and the moving party 

is entitled to judgment as a matter of law. Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911 (11th Cir. 

2007); Fed. R. Civ. P. 56(a). The movant bears the burden of demonstrating there is no genuine 

dispute as to any material fact in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

Once the moving party satisfies its burden, the burden shifts to the nonmoving party to establish 

the existence of a genuine issue of material fact. Celotex, 477 U.S. at 324. 

II. The Amended Complaint Impermissibly Seeks An Advisory Opinion.

A complaint for declaratory relief is subject to dismissal if it merely seeks an advisory 

opinion. Santa Rosa Cnty. v. Admin. Comm’n, Div. of Admin. Hearings, 661 So. 2d 1190, 1193 

(Fla. 1995) (declaratory relief cannot seek “legal advice by the courts or the answer to questions 

propounded from curiosity”); Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir. 1985). 

The ripeness doctrine protects “federal courts from engaging in speculation or wasting their 

resources through the review of potential or abstract disputes.” Atain Specialty Ins. Co. v. Sanchez, 

1

 Pursuant to Local Rule 56.1, this Motion is accompanied by a separately filed Statement of Material Facts cited 

throughout as “SMF”. 

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No. 8:17–cv–1600, 2018 WL 1991937 at *1 (M.D. Fla. April 27, 2018) (insurer’s suit seeking a 

declaration that it had no duty to indemnify amounted to an impermissible advisory opinion). Here, 

BSO has not pleaded, much less shown, that it incurred amounts that constitute “ultimate net loss” 

in excess of the SIR and applicable deductible2, or that the lawsuits against it have resulted in a 

judgment for covered amounts in excess of the SIR. BSO has not pleaded or shown that the Policy3

has been triggered or that it made any demand for indemnity under the Policy. 

The lawsuits arising from the Parkland Shooting Incident against BSO remain pending and 

it is undisputed that there are no outstanding claim bills that would potentially implicate any 

amount in excess of the limitation of liability to which BSO is entitled. SMF ¶ 8. That BSO will 

face any liability above the $200,000/$300,000 statutory caps (or any liability whatsoever) is 

therefore purely hypothetical and impossible according to BSO’s own witness. Greene Dep.4 at 

86:20-87:2 (“we cannot legally pay anything other than 300”); 89:21-25. Given that the litigation 

has not concluded and another public entity (the Broward County School Board) has paid amounts 

to the underlying plaintiffs well over the statutory limits, BSO agrees that it cannot be liable for 

any amount, much less any amount in excess of the statutory caps. SMF ¶ 77; (Greene Dep. at 

87:13-14; 89:21-90:4). At the very least, BSO agrees that whether there is liability for the 

underlying lawsuits, including for damages in excess of $300,000, is speculation at this point. 

Greene Dep. at 26:1-14; 27:14-20. Nevertheless, BSO improperly asks this Court to decide, in 

advance of any evidence that it has satisfied conditions precedent to coverage, and absent an 

adverse determination of liability against it, whether it will have to satisfy more than one SIR in 

2

 As discussed in Section III infra, the Policy has an Annual Aggregate Deductible of $500,000 that can only be met 

by payment of covered judgments or settlements. 

3

 Throughout this Motion, the term “Policy” means the Evanston Policy No. MPEM1D0002-16-01. 

4 The Deposition of John Greene is attached to the Declaration of Kristen Perkins at Exhibit B.

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connection with the Parkland Shooting Incident. This is not a proper justiciable controversy, and 

the Court should grant summary judgment in Evanston’s favor on this basis. 

III. The Policy Cannot Be Triggered By The Parkland Shooting Incident. 

The Policy is clear that Evanston can only be liable to pay “ultimate net loss” once the 

$500,000 SIR is exhausted and the Annual Aggregate Deductible (“AAD”) of $500,000 has been 

satisfied by payment of “ultimate net loss”. “Ultimate net loss” does not include “claim expenses”. 

While “claim expenses” can satisfy the SIR, they cannot satisfy the AAD, which can only be 

satisfied by the payment of “ultimate net loss” – i.e., judgments or settlements. Because, as 

admitted by BSO, its potential liability for the Parkland Shooting Incident has been reduced to 

zero dollars (and at most $300,000) by operation of Florida law, there can be no circumstance 

where BSO will incur “ultimate net loss” to trigger the Policy. 

As alleged in the Amended Complaint [D.E. 20], the Policy provides that it will only pay 

“ultimate net loss” in excess of the SIR. [D.E. 20, ¶ 12, D.E. 20-3, pp. 11]. Per Endorsement, 

“ultimate net loss” does not include “claim expenses” such as defense and investigation costs. 

[D.E. 20, ¶ 20; D.E. 20-3, pp. 54]. Therefore, as amended, the definition of “ultimate net loss” is: 

the total amount of damages [], including any attorney fees awarded in favor of 

third parties that the insured is legally liable to pay because of “bodily injury”, 

“property damage” or “personal and advertising injury”. 

[D.E. 20-3, p. 27, Definition Y.] By endorsement, the Policy was amended to include the AAD of 

$500,000. [D.E. 20-3, p. 53]. The AAD provides: 

Our obligation to pay “ultimate net loss” in excess of the Self-Insured Retention 

under this policy does not apply until you have paid the full amount of the Annual 

Aggregate deductible shown in the Schedule above. The Annual Aggregate 

Deductible applies to all “ultimate net loss” in excess of the Self-Insured Retention, 

regardless of the number of Coverage Parts attached to this policy, insureds, claims 

(“claims”) made or “suits” brought. 

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The Annual Aggregate Deductible is not considered a part of the Self-Insured 

Retention and does not accrue to the exhaustion of the Self-Insured Retention or 

Annual Aggregate Self-Insured Retention, if applicable. 

Further, the “Limits of Liability” section, as amended by endorsement, specifies that Evanston can 

only be liable for “claim expenses” if it is obligated to pay “ultimate net loss”. 5 Therefore, 

Evanston cannot be obligated to pay “ultimate net loss” or “claim expenses” unless and until: 

1. The $500,000 per occurrence SIR (or SIRs) is satisfied by the payment of 

covered judgments, settlements or “claim expenses”; and then

2. The $500,000 AAD is satisfied by the payment of covered judgments or 

settlements only. 

As applied to this case, and assuming for the sake of argument that only one $500,000 SIR 

applies to the Parkland Shooting Incident (which is disputed), in order to trigger coverage BSO 

would have to prove that it paid $500,000 in covered judgments, settlements or defense costs and

an additional $500,000 in covered judgments or settlements. As explained below, because it is 

undisputed that BSO cannot be liable for any amount with respect to the Parkland Shooting 

Incident and/or any amount over the statutory caps of $200,000/$300,000, the Policy cannot be 

triggered by the Parkland Shooting Incident as a matter of law. 

As an initial matter, BSO has not pleaded or otherwise maintained that the AAD has been 

satisfied or that the Policy has been triggered in any respect by the Parkland Shooting Incident. 

See [D.E. 20]. Moreover, BSO agrees that it does not face liability for a judgment arising out of 

the Parkland Shooting Incident in excess of the SIR. 

Section 768.28(5), Fla. Stat. operates as a limited waiver of immunity for certain tort 

actions.6 This section provides that the state and its agencies will be solely liable to pay a claim or 

5 “If we have an obligation under this Coverage Part to pay ‘ultimate net loss’ in excess of the [SIR], any “claim 

expenses” we pay will be in addition to, and will not reduce, the applicable Limits of Insurance.” [D.E. 20-3, p. 54].

6 Under Section 768.28, Fla. Stat., and the Florida Constitution, BSO/Sheriff Tony is considered to be a county official 

and therefore entitled to sovereign immunity, subject to this limited waiver applicable to certain tort actions. SMF ¶ 

14.

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judgment up to $300,000 for all claimants with respect to the same incident and as against all 

state agencies or subdivisions. In 2021, the Broward County School Board reached a $25 million 

settlement with the Plaintiffs in the Underlying Litigation (the “School Board Settlement”). SMF 

¶ 7. Because the School Board is another state subdivision, and the amount of the School Board 

Settlement far exceeds the statutory cap, the School Board Settlement precludes further recovery 

from BSO (or any other state agency). Therefore, BSO cannot incur any “ultimate net loss” that 

would satisfy the AAD or otherwise trigger any coverage obligation under the Policy. 

BSO’s corporate representative, John Greene, confirmed that this understanding was 

correct and at most BSO can only be liable for $300,000, which would not satisfy the AAD. Greene 

Dep. at 86:23 – 87:2; 89:21-89:25. This is consistent with Mr. Greene’s understanding expressed 

to Evanston after the shooting incident. SMF ¶ 77. Greene was not aware of any facts suggesting 

that the underlying plaintiffs have challenged BSO’s application of Section 768.28 in any respect. 

There are only two exceptions to Section 768.28(5), which are not present here and which 

would be excluded by the Policy in any event: 

However, a judgment or judgments may be claimed and rendered in excess of these 

amounts and may be settled and paid pursuant to this act up to $200,000 or 

$300,000, as the case may be; and that portion of the judgment that exceeds these 

amounts may be reported to the Legislature, but may be paid in part or in whole 

only by further act of the Legislature. 

As an initial matter, there is currently no amount reported to the Legislature with respect 

to BSO’s liability to the underlying plaintiffs, and such liability is presently disputed and without 

resolution. Further, BSO’s corporate representative was clear that in the event the Legislature 

approved any amount with respect to BSO’s liability (i.e., a “claims bill”), that amount would be 

paid by the State, not BSO: “The state of Florida would pay it out of a fund, not the agency.” 

[Greene Dep. at 26:10-22]. Therefore, in the event the Legislature were to approve any amount 

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with respect to the Parkland Shooting Incident, BSO admits it would not be liable for that amount, 

which would therefore not qualify as “ultimate net loss” under the Policy.7 

Even in the event an act of the Legislature resulted in liability to BSO in excess of the 

statutory cap, it would not be covered by the Policy, which by its terms does not recognize any 

waiver of sovereign immunity of the insured. In the “Common Policy Conditions”, Paragraph G. 

Governmental Immunity, states that “[w]e will not waive, either in the adjustment of claims 

(‘claims’) or in the defense of ‘suits’ against the insured, any governmental immunity of the 

insured.” [D.E. 20-3, p. 5]. An act of the Legislature agreeing to liability in excess of the limitation 

provided by Section 768.28 would be a clear waiver of governmental immunity and, while it may 

be authorized by law, such amounts would not be covered under the Policy. See Atl. Specialty Ins. 

Co. v. City of College Park, 313 Ga. 294, 303 (2022) (making clear that policy language is 

paramount, even where statute permits waiver of sovereign immunity). 

Section 768.28(5) provides one other permissive exception as follows: 

Notwithstanding the limited waiver of sovereign immunity provided herein, the 

state or an agency or subdivision thereof may agree, within the limits of insurance 

coverage provided, to settle a claim made or a judgment rendered against it without 

further action by the Legislature ... 

Like the claims bill, this exception does not confer any liability on BSO. Rather, it permits but 

does not require BSO to settle claims or judgments against it within its insurance limits without 

legislative authorization, if the policy so permits. In the event BSO were to attempt to agree to pay 

a settlement with the Policy limits, it would clearly violate the “Governmental Immunity” 

condition of the Policy. See City of College Park, supra. Further, any settlement by BSO in excess 

of the SIR requires Evanston’s prior written consent. [D.E. 20-3, p. 12, Section B.2.] There is no 

7

 Notably, all claims under Section 1983 (and any other claims not subject to the statutory cap) have already been 

dismissed. Greene Dep. at 27:9-11. 

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authority holding that Evanston would be required to consent to any settlement that waives BSO’s 

immunity or an express condition of the Policy. 

In accordance with the foregoing, BSO has not and cannot incur liability with respect to 

the Parkland Shooting Incident that would result in it paying “ultimate net loss” in excess of the 

SIR and the AAD, and BSO can present no evidence that it could. As such, there is no circumstance 

where the Policy can be triggered and Evanston is entitled to judgment as a matter of law. 

IV. The Allegations of the Parkland Cases Constitute More Than One Occurrence.

The Florida Supreme Court’s decision of Koikos v. Travelers Ins. Co., 849 So. 2d 263 (Fla. 

2003) compels the determination that the Parkland Shooting Incident constitutes multiple 

occurrences under the Policy. As addressed by Koikos, each gunshot causing injury is a separate 

“occurrence” as a matter of Florida law. 

Koikos dealt with a factually similar scenario where an assailant entered a restaurant and 

shot two individuals in the aftermath of a dispute. The insured, Koikos, was sued for negligent 

security and sought a determination as to whether the separate gunshots constituted a single or 

multiple occurrences under his insurance policy. The definition of “occurrence” at issue in Koikos 

was materially identical to that in the Policy and the countless policies reviewed by BSO’s risk 

manager over the course of his career [Greene Dep. at 39:6-17] – “an accident, including 

continuous or repeated exposure to substantially the same harmful conditions.”8 In applying this 

definition and following Florida’s “cause theory”, the Florida Supreme Court held that each 

shooting constituted a separate occurrence. Id. at 273. The Florida Supreme Court made clear that 

pursuant to the “cause theory” courts must focus on the independent immediate act giving rise to 

the injury – not on the basis for liability asserted against the insured (i.e., negligent security). Id.

8 The “occurrence” definition in Koikos included “... same general harmful conditions.” 

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The principal holding of Koikos is this: that in accordance with the “cause theory”, in the 

case of a multi-victim shooting incident, each gunshot constitutes a separate “occurrence”. As 

demonstrated below, this has been the universally accepted view of Koikos since its holding, 

including by binding precedent from the Eleventh Circuit. See Guideone Elite Ins. Co. v. Old 

Cutler Presbyterian Church, Inc., 420 F.3d 1317 (11th Cir. 2005); see also South Central Ed. Risk 

Mgt. Program v. Star Ins. Co., 2018 WL 1135289 (S.D. Fla. Dec. 18, 2018) (noting the holding of 

Koikos and the binding precedent of Guideone). 

Contrary to BSO’s position, the Koikos Court did not base its holding on a finding that the 

standard definition of “occurrence” is ambiguous. Koikos provides that when there is a shooting 

with multiple victims, and the policy defines “occurrence” like the Evanston Policy, “each 

shooting constitutes a separate occurrence” as a matter of Florida law. 849 So. 2d at 274. The 

Florida Supreme Court reached its “decision by looking at the language of the policy in a 

manner consistent with precedent regarding the construction of insurance policies in this 

State.” Id. at 273 (emphasis added). 

Evanston acknowledges that Koikos contains dicta regarding ambiguity. However, a 

careful reading of the decision demonstrates that the key holdings were decided as a matter of law, 

not ambiguity. First, neither the certified question nor the answer to the question references 

ambiguity or indicates that the issue was decided on the basis of ambiguity.9 Next, the Florida 

Supreme Court analyzed relevant precedent, none of which were decided on the basis of ambiguity, 

and adopted the “cause theory” – definitively ruling that under Florida law, the gunshots causing 

9

 The certified question as revised by the Koikos Court was: WHEN THE INSURED IS SUED BASED ON 

NEGLIGENT FAILURE TO PROVIDE ADEQUATE SECURITY ARISING FROM SEPARATE SHOOTINGS OF 

MULTIPLE VICTIMS, ARE THERE MULTIPLE OCCURRENCES UNDER THE TERMS OF AN INSURANCE 

POLICY THAT DEFINES OCCURRENCE AS “AN ACCIDENT, INCLUDING CONTINUOUS OR REPEATED 

EXPOSURE TO SUBSTANTIALLY THE SAME GENERAL HARMFUL CONDITIONS”?

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the injuries are the “occurrences”, not the underlying theory of liability.10 While the Koikos Court 

indicated the holding would be the same if they had found an ambiguity, there is expressly no 

finding of ambiguity. Instead, the language is equivocal: “even if we accepted [the insurer’s] 

construction of the policy as a reasonable interpretation, the insurance policy would be ambiguous 

because the language would be susceptible to more than one reasonable interpretation – one 

providing coverage and the other limiting coverage.” Id. (emphasis added). Evidently, the Koikos

Court did not accept the insurer’s construction as reasonable, and did not find the policy ambiguous 

as to whether the “occurrence” was the shots fired by the shooter rather than the alleged negligence 

in preventing it. Critically, the Koikos Court stated, “[t]hus, in this case, the immediate causes of 

the injuries were the intervening intentional acts of the third party – the intruder’s gunshots.” Id. 

at 271. (emphasis added). 

The Koikos Court then addressed the alternative argument that, given the close proximity 

of the shots causing injury (nearly concurrent), the shooting itself should be deemed a single 

occurrence, and dismissed this argument immediately. Id. at 272. In other words, the Koikos Court 

did not hold that this was a reasonable interpretation that would result in an ambiguity under the 

policy.11 Rather, the Court expressly rejected the obligation to analyze the time and proximity 

between each shot fired in determining the number of occurrences. According to the Koikos Court: 

10 In adopting the “cause theory”, the Florida Supreme Court relied on New Hampshire Ins. Co. v. RLI Ins. Co., 807 

So. 2d 171, 172 (Fla. 3d DCA 2002), another shooting case finding that where “[t]here were three separate acts of 

shooting, causing three separate injuries to three separate persons in three separate instances ... liability attached [to 

the insured] when the aggressor fired three shots which resulted in injury to the three victims.” Koikos, 849 So. 2d at 

271. The issue of ambiguity was not discussed. The Koikos Court agreed with RLI and stated that “[t]he accident – 

the event that was neither expected nor intended from Koikos’s standpoint – was the shooting incident and not 

Koikos’s own failure to provide security.” Id. (emphasis added).

11 It is axiomatic that in order to find an ambiguity in any insurance policy or contract, there must be two competing 

interpretations, both of which are reasonable. Certain Underwriters at Lloyds of London v. Pero Fam. Farm Co., No. 

18-CV-81680, 2020 WL 3268274, at *3 (S.D. Fla. Apr. 9, 2020). Courts should not look for ambiguity when there is 

none or put strain and unnatural construction on the policy terms to create ambiguity. Sphinx Int’l, Inc. v. Nat’l Union 

Fire Ins. Co., 412 F.3d 1224, 1228-29 (11th Cir. 2005).

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“To hold that the number of occurrences is determined by the time between each shot would turn 

an insurance coverage issue into an intensive fact-based inquiry requiring the selection of an 

arbitrary time interval to distinguish a single occurrence from multiple occurrences.” Id. The 

Koikos Court went on to state that “we conclude that using the number of shots fired as the basis 

for the number of occurrences is appropriate because each individual shooting is distinguishable 

in time and space.” Id. Therefore, the court expressly held that the only reasonable interpretation

is that each individual shot is a separate occurrence.12

In Koikos, the gunman fired two rounds of gunshots that were nearly concurrent; the two 

victims were injured by gunshots from the first round. 849 So. 2d at 265. Thus, even under facts 

demonstrating that the separate gunshots were only seconds (if not fractions of a second) apart, the 

Florida Supreme Court dismissed the idea that those shots could constitute a single occurrence. 

The facts of the Parkland Shooting Incident fit even more directly within the Florida 

Supreme Court’s analysis of the cause theory. Cruz entered the school building on the first-floor 

and proceeded for two minutes to shoot multiple rounds into four different classrooms, killing 11 

people. SMF ¶ 3(a-f).13 He then made his way up to the second and third floors of the building, 

alternating between shooting in the corridors and classrooms. SMF ¶ 3(g-h). Cruz exited the 

building about six minutes after he entered. SMF ¶ 3(i) As such, in a situation involving gunshots 

that were even further separated by time and distance, the Florida Supreme Court’s holding in 

Koikos results in multiple occurrences as a matter of law. 

i. The Eleventh Circuit Guideone Case Is Binding And Compels A Finding of 

Multiple Occurrences. 

12 For a fulsome analysis of the steps taken by the Koikos Court, Evanston respectfully refers this Court to its 

Opposition to Plaintiff’s Motion for Judgment on the Pleadings [D.E. 52] expressly incorporated herein. 

13 See also Exhibit A to Perkins Decl. at pp. 43-52.

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In Guideone Elite Ins. Co., infra, a perpetrator kidnapped a woman, struck her on the head, 

threw her in a van, closed the door, robbed her, commanded her to perform oral sex and demanded 

she withdraw cash from her ATM account. The Eleventh Circuit, considering the same definition 

of “occurrence” at issue in Koikos found that each act of the perpetrator (rape, robbery, kidnapping, 

assault, and battery) constituted a separate occurrence as a matter of law under Koikos without any 

discussion of ambiguity. Id. at 1331-32. The Eleventh Circuit stated: 

Under Florida law, “when the insured is being sued for negligent failure to provide 

security, an ‘occurrence’ is defined by the immediate injury-producing act and not 

by the underlying tortious omission.” Koikos, 849 So.2d at 271 (footnote omitted). 

In so holding, the Florida Supreme Court found that, in Koikos, “the immediate 

causes of the injuries were the intervening intentional acts of the third party—the 

intruder’s gunshots.” Id. at 272. The court reasoned that “[t]o hold that the number 

of occurrences is determined by the time between each shot would turn an insurance 

coverage issue into an intensive fact-based inquiry requiring the selection of an 

arbitrary time interval to distinguish a single occurrence from multiple 

occurrences.” Id. (citing American Indemnity Co. v. McQuaig, 435 So.2d 414, 416 

n. 3 (Fla. 5th DCA 1983)) (“Had [the insured] shot Pope, then left, and hours or 

days later shot McQuaig, there would be little argument that this was more than one 

occurrence. The only difference is that here, the time interval was relatively 

short.”). 

Id. at 1332. The Guideone court held that “[t]he various acts committed by the perpetrator were 

separated by sufficient ‘time and space’ so as to constitute separate occurrences under Koikos.” Id. 

In the section addressing Koikos, the Eleventh Circuit clearly decides the issue as a matter 

of law and did not apply any rule of construction based on ambiguity. District Courts are bound to 

follow the reported decisions of the Court of Appeals for its Circuit. See Fox v. Acadia State Bank, 

937 F.2d 1566, 1570 (11th Cir. 1991); Eleventh Circuit Local Rules Note 2 (published opinions 

are binding precedent) (citing Martin v. Singletary, 95 F.2d 944 n.1 (11th Cir. 1992)). As such, the 

decision of the Eleventh Circuit is binding on this Court and requires a finding of multiple 

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occurrences under Koikos with respect to the Parkland Shooting Incident. 14 The holding of 

Guideone has never been altered or amended by subsequent decisions of the Eleventh Circuit. 

ii. Taurus Did Not Impact the Eleventh Circuit’s View of Koikos As Articulated 

in Guideone. 

BSO has argued that the case of Taurus Holdings, Inc. v. U.S. Fidelity & Guar. Co., 913 

So. 2d 528 (Fla. 2005), which was decided one month after Guideone, confirmed that Koikos was 

decided on the basis of ambiguity. [D.E. 38, p. 10.] This is inaccurate, and the statement regarding 

Koikos in Taurus is dicta at best. Indeed, the Taurus court did not in any way apply Koikos in 

reaching its decision. Id. at 534. Therefore, its description of Koikos is not controlling law. Lewis 

v. State, 34 So. 3d 183, 186 (Fla. 1st DCA 2010) (“When a court makes a pronouncement of law 

that is ultimately immaterial to the outcome of the case, it cannot be said to be part of the holding 

in the case.”). 

Further, the statement regarding Koikos written by Justice Cantero (who was not part of 

the Koikos Court) appears to be inconsistent with the central holding of Koikos. The reasoning of 

Koikos demonstrates that it was not decided on the basis of ambiguity – it was decided by applying 

the “cause theory” and precedent to the facts of the case. Therefore, Taurus should not be relied 

on to find that Koikos was decided based on ambiguity. 

If there was any doubt about the Eleventh Circuit’s view of Koikos post-Taurus, that has 

been clarified by several Eleventh Circuit decisions, two of which have applied Guideone’s 

interpretation of Koikos on the precise issue presented here. Each time the Eleventh Circuit 

interprets Koikos to address the issue of number of occurrences with respect to claims involving 

14 Evanston notes that the Guideone decision was cited in its Motion to Dismiss [D.E. 21] but was not addressed by 

the Court in the Order on Evanston’s Motion [D.E. 38]. Plaintiff also neglected to address Guideone’s treatment of 

Koikos in its Opposition to Evanston’s Motion. [D.E. 23]. Evanston again cited to Guideone in its Motion for 

Reconsideration [D.E. 44, p. 16]. 

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multiple injuries, it finds that Koikos compels the result that there are multiple occurrences where 

there are injuries to multiple claimants. It has never held that Koikos was based on ambiguity and 

therefore requires whatever result the insured chooses when it comes to occurrences.15

In State Nat. Ins. Co. v. Lamberti, 362 F. App’x 76 (11th Cir. 2010), a case involving BSO 

in which a number of lawsuits were filed relating to BSO’s policing of a protest, the Eleventh 

Circuit, held that the claims, which included multiple plaintiffs alleging similar civil rights 

violations, involved multiple occurrences. Id. at 81-82. Critically, citing to Guideone, the court 

found that each interaction with BSO officers was a separate occurrence under the precedent set 

by Koikos. Id. at 82. The court noted that because there were multiple occurrences, if BSO settled 

each claim for less than the amount of the SIR, BSO might never be entitled to any reimbursement 

from the State National policy. Id. at 81. 

Following Lamberti, Judge Seitz decided State Nat’l Ins. Co. v. City of Miami, No. 08-

22861-CIV-SEITZ/O’SULLIVAN, 2010 WL 11506250 (S.D. Fla. May 11, 2010), which was 

unanimously affirmed by the Eleventh Circuit. 403 Fed. App’x 478 (11th Cir. 2010). Like here, 

City of Miami was a case where the insured preferred multiple gunshots to be a single occurrence 

due to a $500,000 per occurrence SIR. Nevertheless, Judge Seitz held that “Koikos requires that 

the Court find that the separate shots constitute separate occurrences in the policy.” Id. Judge Seitz 

was directly presented with the argument that Taurus confirmed that Koikos was decided on the 

basis of ambiguity in the underlying briefs. See City’s Motion for Summary Judgment [D.E. 44-2, 

pp. 13-14]. Judge Seitz addressed the argument head on, holding that “Miami reads Koikos

15 It is also notable that six months after Koikos, the Florida Supreme Court declined jurisdiction of RLI’s appeal of 

the Third DCA’s ruling, holding: “Upon review of the responses to this Court’s order to show cause dated July 14, 

2003, the Court has determined that it should decline to exercise jurisdiction in this case. See Koikos v. Travelers Ins. 

Co., 849 So. 2d 263 (Fla. 2003). The petition for discretionary review is, therefore, denied.” N.H. Ins. Co. v. RLI Ins. 

Co., 858 So. 2d 331 (Fla. 2003).

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incorrectly when it argues that the court interpreted the term ‘occurrence’ to mean each gunshot 

because the policy was ambiguous.” Id. at *5, n. 11. This decision was upheld by the Eleventh 

Circuit in 2010 – five years after Taurus.

16

 

In a more recent Eleventh Circuit decision, Port Consolidated, Inc. v. Intern. Ins. Co. of 

Hannover, PLC, 826 F. App’x 822 (11th Cir. 2020), the insured issued cards to its customer in 

order to pump gasoline and diesel fuel. Due to an error with a fuel dispensing system, drivers were 

able to exceed the 75 gallon limit despite only being charged for 75 gallons. The term “occurrence” 

was not even defined in the policy; however, the Eleventh Circuit found that the policy was not 

ambiguous and that, under Florida law as articulated by Koikos and Guideone, each theft of fuel 

by truck drivers (in excess of the 75 gallon limit) constituted a separate occurrence.17 As none of 

the losses from each of the individual thefts exceeded the $1,000 per occurrence deductible, the 

insurer was not required to indemnify Port Consolidated.18

Four separate Eleventh Circuit decisions have either rejected the argument that Koikos was 

decided on the basis of ambiguity, or did not address ambiguity instead applying the “cause theory” 

and the holding of Koikos. The Guideone case is binding on this Court. See South Central Ed. Risk 

Mgt. Program, infra (noting that the binding precedent of Koikos and Guideone required finding 

multiple occurrences where there were multiple instances of abuse even on the same victim). All 

of the cases found multiple occurrences under Koikos. While three of the cases were not published, 

16 The Eleventh Circuit was also presented with the argument that Taurus confirmed that Koikos was decided based 

on ambiguity and rejected it unanimously. Initial and Reply Briefs of City of Miami, (attached hereto as Exhibits A 

and B) (Perkins Decl. at ¶¶ 44-45). 

17 Port Consolidated also cited Taurus, but still found the Koikos case was not decided on the basis of ambiguity. The 

insured also argued that Koikos was based on ambiguity and its holding was decided according to the interpretation 

that benefitted the insured. Initial Brief of Appellant, 2019 WL 6243320 (Nov. 20, 2019) (attached hereto as Exhibit 

C (Perkins Decl. at ¶ 46). This argument was rejected by the Eleventh Circuit. 

18 In the proceedings before Judge Zloch, he noted that the definite legal meaning of occurrence was established in 

Koikos. See Port Consolidated, Inc. v. Intern. Ins. Co. of Hannover, PLC, No. 16-60379-CIV-ZLOCH, 2019 WL 

2009333 at *2 (S.D. Fla. Mar. 21, 2019).

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they nevertheless confirm the Eleventh Circuit’s holding in Guideone and the Eleventh Circuit’s 

position that Koikos was not based on ambiguity. There is no basis for this Court to depart from 

binding precedent of the Eleventh Circuit. 

iii. Numerous Other Courts Citing Koikos Held It Was Decided Without Any 

Resort to Ambiguity. 

Numerous courts have applied Koikos as a matter of law whether or not the application 

benefited the insured or insurer and without any discussion of ambiguity.19

 Mid-Continent Cas. Co. v. Basdeo, 742 F. Supp. 2d 1293 (S.D. Fla. 2010) (affirmed 

477 F. App’x 702 (11th Cir. 2012)): finding multiple occurrences in the context of 

a construction defect action where the insured worked on multiple buildings; 

 Great Am. All. Ins. Co. v. Monte Carlo of Miami Condo., Inc., No. 22-21238-CIVALTONAGA/Torres, 2023 U.S. Dist. LEXIS 30332 n.3 (S.D. Fla. Feb. 22, 2023),

Judge Altonaga in a footnote held that the underlying incident constituted a single 

occurrence because there was only one shooting victim that was shot by a single 

bullet, entering summary judgment in favor of the insurer and citing to Koikos.

There was no finding of ambiguity there nor any construction in favor of the 

insured. Id.

 South Central Educ. Risk Mgmt. Program v. Star Ins. Co., supra: finding multiple 

occurrences in case involving sexual abuse and requiring payment of multiple SIRs; 

 Bray & Gillespie IX, LLC v. Hartford Fire Ins. Co., No. 6:07-cv-326-Orl-DAB, 

2009 WL 1953649 (M.D. Fla. July 6, 2009): finding that when three hurricanes 

struck a property, each hurricane was a separate occurrence;

 Liberty Mut. Ins. Co. v. State Farm Fla. Ins. Co., Nos. 20-12970, 20-13637, 2022 

WL 1025164 at *7 (11th Cir. Apr. 6, 2022); multiple occurrences triggered policy’s 

aggregate limit in construction defect case;

 Belt v. USAA Cas. Ins. Co., 312 So. 3d 947 (Fla. 4th DCA 2021): discussing Koikos 

and the cause theory in an auto accident case, no reference to ambiguity. 

19 The only case to even suggest that Koikos was decided on the basis of ambiguity in a manner relevant to its decision 

is Maddox v. Fla. Farm Bureau Gen., 129 So. 3d 1179 (Fla. 5th DCA 2014). However, Maddox consisted of three 

separate opinions, and thus, is not binding precedent. See Musselwhite v. Fla. Farm Gen. Ins. Co., 273 So. 3d 251 n.* 

(Fla. 1st DCA 2019) (holding that a plurality opinion is not precedent binding on the court). Further, like every other 

court considering the issue, the Court held that there were multiple occurrences where there were multiple victims. 

Moreover, as discussed, the Eleventh Circuit continues to follow its precedent in Guideone even after Maddox, and 

the Eleventh Circuit is bound to follow its prior precedents absent a decision from a state appellate court casting doubt 

on its decision. See EmbroidMe.com, Inc. v. Travelers Prop. Cas. Co. of Am., 845 F.3d 1099, 1105 (11th Cir. 2017).

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BSO’s argument that “the insured always wins” in these cases is an approach that simply 

has not been followed by any Florida court since Koikos.

 20 Accordingly, Evanston’s reading of 

Koikos should be applied. See also Travelers Indem. Co. v. Garcia, 2021 WL 2935425 (11th Cir. 

July 13, 2021) (applying Koikos and construing the policy language against the preferred 

interpretation of the insured). 

V. The Rules Of Contract Construction Preclude A Finding Of Ambiguity Here.

If a term has been judicially construed, it is not ambiguous. S. Cent. Educ. Risk. Mgmt. 

Program, supra, at *7-8 (noting Koikos, Guideone and Lamberti are binding precedent from the 

Florida Supreme Court and the Eleventh Circuit and mandate a finding that each individual 

gunshot in a shooting spree is a separate “occurrence”); Couch on Insurance, 2d ed., § 15:20 (if a 

term in an insurance policy has been judicially construed, it is not ambiguous and the judicial 

construction of the term should be read into the policy unless the parties express a contrary intent).

21 Moreover, with respect to Florida contracts, the law in existence at the time of the making a 

20 Evanston anticipates that BSO will cite to Washington National Insurance Co. v. Ruderman, 117 So. 3d 943 (Fla. 

2013) for the proposition that ambiguous terms are always construed against the insurer, regardless of the insured’s 

bargaining power, sophistication or actual participation in policy negotiation. The Ruderman Court does not state that 

if a policy term is determined to be ambiguous, the insured gets to choose the outcome it desires. Instead, the decision 

says the policy will be liberally construed in favor of coverage. Moreover, Ruderman is inapplicable. The case 

involved a consumer class action against an insurer, with the class was comprised of ordinary consumers who 

purchased limited home health care insurance. Id. at 946. There was no issue concerning whether the insureds were 

sophisticated (they were not) and no evidence that any insured participated in the negotiations with respect to the 

policies they purchased. Indeed, the Ruderman Court recognized that the construction of ambiguous terms against the 

insurer was developed in order “to protect the buying public who rely upon the companies and agencies in such 

transactions.” Id. at 951 (emphasis added).

21 This principle is also followed by courts outside the state. See Allstate Ins. Co. v. Chinn, 76 Cal. Rptr. 264, 267 (Ct. 

App. 1969); In Morris v. Auto-Owners Ins. Co., No. 3:16-CV-00880-JMC, 2016 WL 7473430, at *4 (D. S.C. Dec. 

29, 2016), the court held: “a term in an insurance policy is not ambiguous, and the rule construing ambiguities in favor 

of the insured does not apply, when the term has been judicially defined.” In fact, “[w]here the language to be 

construed has, by judicial construction, acquired a clear and definite meaning, the rule of construction in favor of the 

insured does not apply since there is no ambiguity in such case.” Id. See also Energynorth Natural Gas, Inc. v. 

Continental Ins. Co., 146 N.H. 156, 160, 781 A.2d 969, 972 (N.H. 2001) (when a term is clearly defined by judicial 

decision, it is no longer considered ambiguous); Order of United Comm. Travelers v. Knorr, 112 F.2d 679, 682 (10th 

Cir. 1940)(“there can be no ambiguity when a term has been judicially defined”). McMillin Homes Constr., Inc. v. 

Nat’l Fire & Marine Ins. Co., 35 Cal. App. 5th 1042 (Cal. App. 4th Dist. 2019) (holding “[w]here a policy term has 

been judicially construed, it is not ambiguous”).

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contract forms a part of that contract, as if it were expressly referred to in its terms. General Dev. 

Cor. v. Catlin, 139 So. 2d 901, 903 (Fla. 3d DCA 1962). 

As recognized by this District, the holding in Koikos is that “each individual gunshot in a 

shooting spree was a separate ‘occurrence’ under the restaurant owner’s liability policy.” S. Cent. 

Educ. Risk. Mgmt. Program, supra, at *7. Because the Florida Supreme Court definitively 

answered the issue and exact factual circumstances before this Court, no ambiguity can exist, and 

binding precedent must be applied without resort to contract construction.22 

As a result of Koikos, Guideone and the body of law following these binding precedents, 

the term “occurrence” as defined in the Policy is not ambiguous as a matter of Florida law. 

VI. BSO Is A Sophisticated Insured And Cannot Rely On Contra Proferentem To ReWrite Policy Terms It Negotiated and Knowingly Accepted. 

BSO has argued that Florida generally follows “the traditional rule of contract construction 

known as contra proferentem[,]” where “ambiguities in contracts, especially those found in 

exclusionary provisions, are to be construed against the insurer as drafter of the policy and in favor 

of the insured.” Estate of Miller v. Principal Mut. Life Ins. Co., 791 F. Supp. 858, 860 (M.D. Fla. 

1992). The “‘rationale for the application of the traditional rules [of interpreting ambiguities in 

favor of finding of coverage], however, is that the insurance policy is generally an adhesion 

contract and therefore the insured has no ability to negotiate for or control the wording of the 

provisions contained therein.’” Castleberry v. Goldome Credit Corp., 418 F. 3d 1267, 1272 (11th 

Cir. 2005) (changes in original) (quoting Holmes’s Appleman on Insurance § 6.5, at pp. 213-14 

22 Notably, the Florida Supreme Court in Koikos did not conclude that the definition of “occurrence” leaves future 

courts free to apply whatever varying outcome the insured chooses when presented with a multiple victim shooting 

event. This would be untenable in the marketplace and contrary to Florida’s rules of contract interpretation. See e.g., 

S. Cent. Educ. Risk Mgmt. Program, supra, at *6 (finding that “[a]ny ambiguity that once existed as to whether a 

school’s deliberate indifference to sexual harassment on campus constituted discrimination was settled by the Supreme 

Court in the late 1990’s, long before this policy was negotiated and executed.”). 

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(2d ed. 1996)). “Obviously, the rule that ambiguities must be construed against the insurer applies 

only when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to 

ordinary rules of construction; it does not allow courts to rewrite the contracts, add meaning that 

is not present, or otherwise reach results contrary to the manifest intention of the parties.” Allstate 

Ins. Co. v. Shofner, 573 So. 2d 47, 49 (Fla. 1st DCA 1990). 

Contra proferentem does not apply here. First, the term “occurrence” is not ambiguous, as 

discussed in detail above. Second, even if there were an ambiguity, which there is not, BSO is a 

sophisticated party that was deeply involved in negotiating the Policy and was represented by 

Marsh – a large and highly specialized insurance broker23 – during the negotiations. BSO cannot 

rely on contra proferentem, a rule of last resort even where (unlike here) a true ambiguity exists, 

to re-write policy terms it negotiated and knowingly accepted. 

Senior Judge Daniel Hurley of this district has explained that contra proferentem has no 

application where the insured is a sophisticated entity with the means and ability to understand and 

negotiate the terms of an insurance policy. RTG Furniture Corp. v. Industrial Risk Insurers, 616 

F. Supp. 2d 1258, 1264 (S.D. Fla. 2008). “[T]he doctrine of contra proferentem is sensibly applied 

in the insurance contract context where the insurer has typically drafted the policy; however, it has 

no logical application where the insured is a sophisticated commercial entity which has 

participated in drafting of the policy.” Id. at 1264. 

Numerous courts from around the country have ruled similarly. See e.g. Industrial Risk 

Insurers v. New Orleans Public Servs., 666 F. Supp. 874, 881 (E.D. La. 1987) (contra proferentem 

23 See Resolving Ambiguities in Insurance Policy Language: The Contra Proferentem Doctrine and the Use of 

Extrinsic Evidence, by Scott G. Johnson, for the American Bar Association (May 2003) at p. 24 (“[t]oday, many 

commercial policyholders place their insurance through insurance brokers. Brokers such as Marsh and Aon, among 

others, have the resources and leverage to develop their own policy forms and to apply substantial pressure on insurers 

to accept them.”).

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does not apply where the insured, a large municipality, was represented by professionals, and was 

on equal footing with its insurers); In re Delta America Re Ins. Co., 900 F.2d 890 n.4 (6th Cir. 

1990) (doctrine did not apply as it was not a contract of adhesion or a contract negotiated between 

parties of unequal sophistication or bargaining power); Eagle Easing Corp. v. Hartford Fire Ins. 

Co., 540 F.2d 1257, 1261 (5th Cir. 1976) (doctrine did not apply in commercial insurance field 

where insured is a large corporation managed by sophisticated businessmen and represented by 

counsel); Gabarick v. Laurin (Mar.), Inc., 650 F.3d 545, 555 (5th Cir. 2011) (presumption in favor 

of the insured does not apply where the insured is a sophisticated commercial entity that drafted 

the policy or used an agent or broker to secure the desired policy provisions.); Stonegate Bank v. 

TD Bank N.A., 596 F. App’x 834, 844 (11th Cir. 2015) (contra proferentem did not apply as both 

parties were sophisticated business entities); Owens-Illinois, Inc. v. United Ins. Co., 138 N.J. 437, 

471, 650 A.2d 974, 991 (1994) ( “O-I was a sophisticated insured and cannot seek refuge in the 

doctrine of strict construction by pretending it is the corporate equivalent of the unschooled, 

average consumer.”); Benjamin Moore & Co. v. Aetna Cas. & Sur. Co., 179 N.J. 87, 102, 843 A.2d 

1094 (N.J. 2004) (doctrine of contra proferentem does not apply when the insured is a 

sophisticated commercial entity that does not “suffer from the same inadequacies as the ordinary 

unschooled policyholder[.]” and has bargaining power and sophistication.). 

To the extent the Court determines that meaning of “occurrence” is/remains ambiguous, 

BSO is not entitled to the benefit of contra proferentem in order to achieve the meaning it prefers. 

As explained below, the record demonstrates that BSO is a sophisticated insured that actively 

negotiated its insurance coverage with its insurers, including Evanston. Further, the record 

demonstrates that both before and after the Evanston Policies, BSO obtained liability coverage for 

bodily injury claims resulting from its law enforcement activities containing specific language that 

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applied a single retention to separate but related occurrences – i.e., avoiding the result mandated 

by precedent finding multiple occurrences. Even though BSO knew and understood this language 

existed, BSO never requested that similar language be included in the Evanston Policy and it was 

not included. As such, contra proferentum does not apply. 

i. Summary Judgment Evidence Demonstrates that BSO is a Sophisticated Insured. 

At all relevant times, BSO was a sophisticated insured with bargaining power and 

knowledge of insurance coverage issues. BSO is the chief law enforcement agency in Broward 

County and one of the largest public/governmental organizations in the State of Florida. Freda 

Dec. at ¶ 6. BSO employs a professional risk manager to whom nine employees report, including 

a lawyer/CPA and individuals with specialized training in the insurance industry. SMF ¶¶ 17, 19-

24; Greene Dep. at 13:14; 60:7-25. BSO’s Assistant General Counsel is also involved with 

obtaining insurance for BSO through its commercial brokers, including Marsh. SMF ¶ 25. 

Marsh is a large and highly specialized insurance broker that assists thousands of 

commercial, public and individual policyholders in placing their insurance. Freda Decl. at ¶ 10; 

Perkins Dec. Ex. L; SMF ¶ 27. Marsh possesses the resources, knowledge and leverage to negotiate 

significant modifications to policy language on behalf of its clients. Freda Decl. at ¶ 10-11; Perkins 

Dec. Ex. L; SMF ¶ 70. Marsh represents BSO in negotiations for its custom insurance program, 

and has monthly insurance calls and annual renewal strategy meetings with BSO to discuss the 

expiring program and BSO’s priorities and specifications for the upcoming year. SMF ¶¶ 22, 31-

35. See also Perkins Decl. EX. QQ (discussing 2015 renewal strategy meeting). Marsh ensures that 

all insurance policies are written according to BSO’s best interests. SMF ¶ 31; Greene Dep. at 

93:14-20. Marsh also answers BSO’s coverage questions throughout the policy term. See Perkins 

Decl. Ex. WW (Marsh employees discuss appropriate responses to questions raised by BSO during 

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“our monthly open items call” regarding application of a corridor retention and “industry standards” 

with respect to liability coverage for PTSD claims.). 

ii. BSO and its Brokers Actively Solicited and Negotiated the Policy. 

In 2016, BSO’s prior carrier, Lexington, sought to double its premium, which prompted 

BSO to seek out other “competitive quotes.” SMF ¶ 59-60; Greene Dep. at 79:23-25. Marsh 

conveyed to BSO that it was working to obtain competitive excess liability quotes, and would 

“likely engage [London] as a market to see if they can create further competition.” SMF ¶ 59; 

Perkins Decl. Ex. Z. 

In September/October of 2016, Marsh broadly marketed the BSO account to excess 

insurers, several of which would not provide a quote to BSO. SMF ¶¶ 58, 59, 61; Perkins Decl. 

Ex. RR & SS at p.5. During negotiations for the Evanston policies, it was conveyed that BSO 

wished to retain more risk in order to keep its premium low after receiving the substantial proposed 

increase from Lexington. Freda Dec. at ¶ 14. SMF ¶ 64. The facts demonstrate that the Policy 

was extensively negotiated, and the self-insured retention amount was a significant consideration 

for Evanston when it quoted the premium for the Policy. Freda Dec. at ¶14. BSO also expressed 

that it wished to retain more risk in addition to the $500,000 SIR in order to lower its premium. 

Freda Decl. at ¶¶ 14-15. BSO and Evanston achieved this through an Annual Aggregate 

Deductible of $500,000 that applied in excess of the $500,000 SIR. Ultimately, Evanston agreed 

to issue an excess liability policy to BSO for the policy period of October 31, 2016 through October 

31, 2017 that contained material differences from the prior Lexington Policy. SMF ¶¶ 62, 66. BSO 

was “very aware of this, and saved a lot of money going with” Evanston. Perkins Decl., VV.

The record shows Marsh and BSO negotiated various issues in connection with the Policy, 

including by requesting modifications to policy terms, forms, pricing and retentions. Dec. of Freda 

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at ¶¶ 13-14; SMF ¶ 65; Perkins Decl. Ex. TT (Marsh employees discuss plan to ask Evanston for 

a retroactively issued sexual abuse endorsement, and note that documentation was available to 

show BSO’s “coverage intent[.]”); Perkins Decl. Ex. UU (Marsh provides BSO with a copy of the 

Policy, explains that the Policy must be reissued with an additional insured listed and an exclusion 

removed, confirms Evanston reissued the Policy, and asks BSO to review the Policy and advise 

“of anything which you believe is not in accordance with the negotiated coverage terms.”) 

(emphasis added). 

The 2016-2017 Evanston Policy was renewed with several changes negotiated between 

BSO/Marsh and Evanston, resulting in the Policy at issue in this matter. SMF ¶¶ 65-67. 

iii. Neither BSO nor Marsh Ever Requested Language Included in BSO’s Prior Policy 

That Applied One SIR to Separate But Related Occurrences. 

After BSO was unsuccessful in arguing a single occurrence in the State National litigation 

before the Eleventh Circuit (SMF ¶¶40) it included specific language in its policies to avoid the 

same result. The Lexington Policy immediately prior to Evanston’s contained language that 

specified one self-insured retention would apply per occurrence or to separate related occurrences. 

SMF ¶¶ 46-48. See also TIG Ins. Co. v. Smart School, 401 F. Supp. 2d 1334 (S.D. Fla. 2005) 

(related endorsement deeming all sexual abuse acts as one occurrence was not ambiguous and 

rendered the cause theory inapplicable). The Evanston Policy did not contain similar language. 

[D.E. 20-3]. Nor was Evanston ever asked to include such language in its policy with respect to 

bodily injury claims arising from BSO’s law enforcement activities. Freda Decl. ¶¶ 20-22. 

Following the last Evanston Policy in 2018-2019, BSO again changed insurance carriers 

to Safety National. SMF ¶ 72. Like the Lexington policy, the Safety National policy covering BSO 

for bodily injury resulting from its law enforcement activities included specific language that 

would apply a single SIR to each “wrongful act” resulting in “bodily injury”. SMF ¶ 76. A 

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“wrongful act” was defined in relevant part as “an actual or alleged error or omission, negligent 

act or breach of duty or a series of connected or interrelated errors or omissions, negligent acts 

or breaches of duties.” Id. 

iv. BSO Is Not Entitled to the Benefit of Language It Did Not Request or Negotiate. 

In this action, BSO seeks the benefit of language it did not request or negotiate. BSO had 

provisions in its prior policy with Lexington that would have limited the application of its SIR in 

a situation such as the Parkland Shooting Incident. The record demonstrates without question that 

BSO did not request any such language, provision or endorsement from Evanston, and no such 

language, provision or endorsement was included on the Policy at issue. Because BSO is a 

sophisticated insured and is not entitled to the automatic benefit of ambiguous language, and 

because BSO knew how to bargain for provisions limiting the application of its SIR, it cannot 

receive the benefit of an interpretation limiting the application of its SIR – especially when such 

interpretation is at odds with a multitude of Florida precedent under which insurers and insureds 

alike have been operating for decades. 

This case is akin to Warwick Corp. v. Alliant Ins. Services, Inc., et al., 227 So. 3d 621 (Fla. 

4th DCA 2017). There, the insured (“Warwick”), was a “sophisticated business entity” that 

obtained primary and excess policies for four of its hotels, including Warwick’s “New Orleans 

hotel.” Id. at 622, 626. In response to Warwick’s argument that the excess policy was ambiguous, 

Florida’s Fourth District Court of Appeal did not apply an automatic interpretation in favor of the 

insured’s outcome, but instead determined the parties’ intent by considering extrinsic evidence. Id. 

at 623. On appeal, Warwick unsuccessfully argued that the trial court “erred in considering 

extrinsic evidence to resolve the allegedly ambiguous policy.” Id. at 624. The appellate court found 

no error and agreed that the extrinsic evidence clearly established the parties’ intent. Id. at 624-26. 

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(quoting Zucker for BankUnited Corp. v. U.S. Spec. Ins. Co., 856 F. 3d 1343, 1353 (11th Cir. 2017), 

which also observed that although the insured believed it “did not get a good deal and wishe[d] 

that it had paid a higher premium for a [different] policy . . . . after the fact wishes are not enough 

to change before the fact choices.”). Ruderman did not render Warwick Corp. meaningless; 

Ruderman doesn’t even apply to Warwick Corp. or to the instant matter, as both deal with 

sophisticated insureds, not the general public. 

BSO, like the insured in Warwick Corp., negotiated its insurance coverage and “chose to 

buy the policy that it bought.” The evidence shows that BSO was clearly aware of Koikos and its 

progeny (including the Lamberti case in which BSO was a party) when BSO negotiated the Policy. 

BSO’s awareness if further evident by the Lexington Policy’s inclusion of Endorsement # 003. 

Freda Decl. at ¶¶ 18-19. See also SMF ¶ 41. 

Despite BSO’s familiarity with Koikos, neither it nor its broker ever requested from 

Evanston policy terms similar to the Lexington Policy, i.e., language that grouped multiple related 

occurrences together for purposes of the retained limit. Freda Decl. at ¶¶ 20-22. If BSO had done 

so, Evanston would have considered the request, determined whether it was acceptable, and at 

what additional premium. Freda Decl. at ¶ 23. That did not occur as BSO clearly took on the risk 

of paying multiple self-insured retentions in exchange for a lower premium. BSO also knew that 

its excess program with Evanston had limited coverage. Perkins Decl. Ex. DD at p.3. (Marsh 

discusses BSO’s interest in “xs coverage for claims involving section 1983 claims only” as BSO 

was “comfortable with their Sovereign Immunity for other claims” and believed obtaining limited 

coverage could help reduce cost. It is also noted that BSO’s current excess program with Evanston 

already had “very limited exposure.”). 

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In summary, BSO is a sophisticated insured who cannot use contra proferentem to compel 

a favorable construction of policy terms that it knowingly negotiated and accepted. Instead, 

ordinary rules of construction must be applied. First, there is no ambiguity so as to trigger the use 

of contra proferentem. Furthermore, if there were such an ambiguity, a consideration of extrinsic 

evidence to determine the parties’ intent, as is done in contract disputes between parties with equal 

bargaining power, indicates BSO accepted the terms with “occurrence” language that should be 

interpreted in accordance with Koikos, Guideone and their progeny. See, e.g., Elias v. Elias, 152 

So. 3d 749, 752 (Fla. 4th DCA 2014); Warwick Corp., 227 So. 3d at 623-26. 

CONCLUSION

For all of the foregoing reasons and the record evidence in support, Evanston’s Motion for 

Final Summary should be granted with judgment entered in favor of Evanston. 

DATED this 12th day of January, 2024. 

By: /s Kristen D. Perkins

KRISTEN D. PERKINS 

Florida Bar No.: 611816 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that the foregoing was filed electronically with the Court using the 

CM/ECF system, which action will cause automatic electronic notification of the filing from the 

Court to be served upon all parties who have registered for electronic service with this Court’s efiling portal on this 12th day of January, 2024. 

KENNEDYS CMK, LLP 

1111 Brickell Avenue 

Suite 1300 

Miami, FL 33131 

Tel.: (305) 371-1111 

/s/ Kristen D. Perkins 

By:___________________________ 

 KRISTEN D. PERKINS 

 Florida Bar No.: 611816 

 JORDAN H. LEWIS 

 Florida Bar No.: 123592 

Kristen.Perkins@KennedysLaw.com

Jordan.Lewis@KennedysLaw.com 

Tracy.Gowen@KennedysLaw.com

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