UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case no. 22-cv-62076-WPD

GREGORY TONY, in his official

capacity as Sheriff of Broward County, 

Plaintiff,

v. 

EVANSTON INSURANCE COMPANY, 

Defendant.

_____________________________________/ 

ORDER ON DEFENDANT EVANSTON’S 

MOTION TO DISMISS AND MOTION TO STRIKE

THIS CAUSE is before the Court on Defendant EVANSTON INSURANCE COMPANY 

(“Evanston”)’s Motion to Dismiss and Motion to Strike, filed February 6, 2023 [DE 21] (the 

“Motion”). The Court has carefully considered the Motion [DE 21], Plaintiff GREGORY TONY, 

in his official capacity as Sheriff of Broward County (“BSO” or “Plaintiff”)’s Response [DE 23], 

Evanston’s Reply [DE 26], argument by counsel at the May 15, 2023 hearing, and is otherwise 

fully advised in the premises. 

I. Background 

On September 20, 2022, Plaintiff BSO filed a Complaint in the Circuit Court of the 17th 

Judicial Circuit in and for Broward County, Florida against Defendant Evanston for Declaratory 

Judgment. See [DE 1-1]. The Complaint alleged that numerous lawsuits were filed against BSO 

and other parties by the victims of the Parkland Shooting Incident (as defined in the Complaint).

See [DE 1-1]. BSO’s Complaint requested that the Court declare that the Parkland Shooting 

Incident was a single Occurrence, and thus, determine whether BSO must exhaust a single SelfCase 0:22-cv-62076-WPD Document 38 Entered on FLSD Docket 05/24/2023 Page 1 of 20
Insured Retention of $500,000, or a Self-Insured Retention of $500,000 for each Plaintiff that 

filed a lawsuit. See [DE 1-1]. Defendant filed the Notice of Removal on November 8, 2022, 

alleging that there exists diversity jurisdiction under 28 U.S.C. § 1332, allowing removal 

pursuant to 28 U.S.C. § 1441. [DE 1]. Defendant moved to dismiss the state court complaint, see 

[DE 6], and Plaintiff filed an Amended Complaint, the operative pleading, on January 23, 2023. 

See [DE 20]. 

Prior to the February 14, 2018 horrific massacre perpetrated by Nikolas Cruz (“Cruz”) on 

February 14, 2018, at Marjory Stoneman Douglas High School (the “Parkland Shooting 

Incident”), BSO purchased from Evanston Public Entities Policy No. MPEMID0002-16-01 with 

a policy period of October 1, 2017 to October 1, 2018 (the “Policy”). See [DE 20-3]. The Policy 

has a Self-Insured Retention (“SIR”) of $500,000, with an each occurrence limit of liability of 

$2,500,000 and an aggregate limit of $5,000,000. See [DE 20-3] at p. 7. The Policy contains a 

“Defense Of Claim Or Suit” provision which provides that BSO has the duty to investigate and 

defend any claim or suit to which this insurance applies and BSO is responsible for the payment 

of any “claim expenses.” All payments of “claim expenses” are to be made by BSO and applied 

toward the SIR. [D.E. 20-3, p. 31]. Additionally, Evanston has no duty to defend any claim or 

suit. Id.

The Policy further provides that the SIR “applies separately to each and every 

‘occurrence’ and offense covered under this Coverage Part.” See [DE 20-3] at p. 22. The Policy 

provides that Evanston “will pay ‘ultimate net loss’ in excess of the SIR that the Insured is 

legally obligated to pay because of ‘bodily injury’, ‘property damage’ or ‘personal and 

advertising injury’ to which this insurance applies.” See id. The Policy in turn provides that this 

insurance applies to “bodily injury” “[c]aused by an ‘occurrence’ that takes place in the ‘covered 

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territory.’” See [DE 20-3] at p. 11. The term “Occurrence” is defined to mean “an accident, 

including continuous or repeated exposure to substantially the same general harmful conditions.” 

See [DE 20-3] at p. 25. The term “accident” is not defined in the Policy. See [DE 20-3]. 

Following the February 14, 2018 Parkland Shooting Incident, numerous lawsuits were 

filed against BSO (and others) by the shooting victims and their families—two of which are 

attached to the Amended Complaint. See [DE’s 20-1, 20-2]. The lawsuits generally allege that 

BSO, including its agent Scott Peterson (“Peterson”)—the School Resource Officer on duty at 

the high school to protect teachers and students from threats, including those posed by active 

shooters like Cruz—were negligent in, among other things, failing to follow BSO’s own policies 

and procedures by, inter alia, failing to radio a Code Red as soon as Peterson heard there was a 

viable active shooting threat on campus, which would have resulted in the immediate lockdown 

of all school buildings; failing to intercept Cruz before he entered Building 12; failing to 

immediately enter Building 12 and locate and neutralize Cruz; calling for a lock down after 

hearing shots fired, thereby preventing officers from entering Building 12 and engaging Cruz; 

and providing other officers with misinformation about Cruz’s location, thereby preventing other 

officers from entering Building 12 to engage and kill Cruz. See [DE 20] at ¶ 8. The lawsuits 

further allege that, but for this negligence, none of the shootings would have taken place or, at 

the very least, some of the deaths and injuries would have been prevented. See [DE 20] ¶ 9.

Defendant Evanston has taken the position that each victim of the Parkland Shooting 

Incident constitutes a separate occurrence under the Policy such that the Self-Insured Retention 

of $500,000 must be separately met by BSO for each victim or gunshot that did harm. In other 

words, according to Evanston, BSO must incur tens of millions of dollars before being entitled to 

any coverage under the Policy. BSO, on the other hand, contends that the Parkland Shooting 

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Incident constitutes a single “occurrence,” such that it must exhaust only a single Self-Insured 

Retention of $500,000 under the Policy before coverage is triggered. Given this bona fide 

interpretive dispute between the parties, BSO seeks declaratory relief to have the Court 

determine the parties’ rights and obligations under the Policy. See [DE 20]. 

On February 6, 2023, Defendant Evanston filed the instant Motion, seeking to dismiss the 

above-styled declaratory action case pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a 

claim. In the instant motion to dismiss, Evanston argues that BSO fails to state a cause of action 

against it because the Parkland Shooting Incident constitutes more than one occurrence as a 

matter of law. Alternatively, in the event the Complaint is not dismissed, Defendant requests 

that the Court strike pursuant to Fed. R. Civ. P. 12(f) Plaintiff’s claims for supplemental relief in 

its prayer for relief, as well as its claims for pre-judgment and post-judgment interest.

II. Standard of Review

To adequately plead a claim for relief, Rule 8(a)(2) requires “a short and plain statement 

of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair 

notice of what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 

41, 47 (1957). Under Rule 12(b)(6), a motion to dismiss should be granted only if the plaintiff is 

unable to articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating Conley, 355 U.S. at 41). “A claim has 

facial plausibility when the pleaded factual content allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 

1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). 

The Court need not take allegations as true if they are merely “threadbare recitals of a 

cause of action’s elements, supported by mere conclusory statements.” Iqbal, 129 S. Ct. at 1949. 

Case 0:22-cv-62076-WPD Document 38 Entered on FLSD Docket 05/24/2023 Page 4 of 20
In sum, “a district court weighing a motion to dismiss asks ‘not whether a plaintiff will 

ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’” 

Twombly, 550 U.S. at n. 8 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on 

other grounds, Davis v. Scherer, 468 U.S. 183 (1984)). 

III. Discussion

a. Declaratory Judgment Claim 

“In a diversity jurisdiction case like this one, a court will apply federal law if the matter at 

hand is procedural, and will apply the law of the forum state if the matter is substantive.” 

Coccaro v. Geico Gen. Ins. Co., 648 F. App'x 876, 880–81 (11th Cir. 2016). “Florida’s 

Declaratory Judgment Act, found in Chapter 86 of the Florida Statutes, is a procedural 

mechanism that confers subject matter jurisdiction on Florida's circuit and county courts; it does 

not confer any substantive rights.” Id.; see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). 

Accordingly, the legal standard for reviewing a declaratory judgment claim in a diversity 

jurisdiction action in federal court is exclusively under 28 U.S.C. § 2201. See id. 

The Federal Declaratory Judgment Act states that:

In a case of actual controversy within its jurisdiction . . . any court of the United 

States, upon the filing of an appropriate pleading, may declare the rights and other 

legal relations of any interested party seeking such declaration, whether or not 

further relief is or could be sought. Any such declaration shall have the force and 

effect of a final judgment or decree and shall be reviewable as such.

28 U.S.C. § 2201(a). Thus, under the Declaratory Judgment Act, 28 U.S.C. § 2201, et seq., a 

court may declare the rights and other legal relations of any interested party in the case of an 

actual controversy within its jurisdiction. “For a controversy to exist, ‘the facts alleged, under all 

the circumstances, [must] show that there is a substantial controversy, between parties having 

adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a 

Case 0:22-cv-62076-WPD Document 38 Entered on FLSD Docket 05/24/2023 Page 5 of 20
declaratory judgment.’” Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409, 414 (11th 

Cir. 1995) (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 

(1941)). 

b. Florida law regarding interpretation of insurance policy

Under Florida law, interpretation of an insurance policy is a question of law for the court. 

Technical Coating Applicators, Inc. v. U.S. Fid. & Guar. Co., 157 F.3d 843 (11th Cir. 1998); 

Penzer v. Transp. Ins. Co., 29 So. 3d 1000 (Fla. 2010). “[I]nsurance contracts are construed in 

accordance with the plain language of the policies as bargained for by the parties.” Auto-Owners 

Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000) (quoting Prudential Prop. & Cas. Ins. Co. v. 

Swindal, 622 So. 2d 467, 470 (Fla. 1993)). “In construing an insurance policy, courts should read 

the policy as a whole, endeavoring to give every provision its full and operative effect.” Gen. 

Star Indem. Co. v. W. Florida Vill. Inn, Inc., 874 So. 2d 26, 30 (Fla. 2d DCA 2004). The 

insurance contract is interpreted based on what a reasonable person in the position of the insured 

would have understood it to mean. See Harris v. Carolina Life Ins. Co., 233 So. 2d 833, 834 

(Fla. 1970). Flores v. Allstate Ins. Co., 819 So. 2d 740, 750 (Fla. 2002); Colony Ins. Co. v. 

Nicholson, No. 10-60042-CIV, 2010 WL 3522138, at *3 (S.D. Fla. Sept. 8, 2010) (quoting Ga. 

Farm Bureau Mut. Ins. Co. v. Huncke, 240 Ga. App. 580, 524 S.E.2d 302 (Ga.Ct.App.1999) 

(“The policy should be read as a layman would read it and not as it might be analyzed by an 

insurance expert or an attorney.”)).1

Whether the contract’s plain language is ambiguous is a matter of law. Strama v. Union 

Fidelity Life Ins. Co., 793 So. 2d 1129, 1132 (Fla. 1st DCA 2001). Ambiguous language is that 

susceptible to more than one reasonable interpretation. Fayad v. Clarendon Nat’l Ins. Co., 899 

1 The Court finds this to be a standard principle of contract interpretation that applies in the state of Florida. 

Case 0:22-cv-62076-WPD Document 38 Entered on FLSD Docket 05/24/2023 Page 6 of 20
So. 2d 1082, 1086 (Fla. 2005). An undefined term is not necessarily ambiguous. Deni Assocs. of 

Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So. 2d 1135, 1138 (Fla. 1998). “If 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. United States Fid. Co., 913 So. 2d 528, 532 (Fla. 2005) (quoting 

Anderson, 756 So. 2d at 34). “Ambiguous policy provisions . . . should be construed liberally in 

favor of coverage of the insured and strictly against the insurer.” Dickson v. Econ. Premier 

Assur. Co., 36 So. 3d 789, 790 (Fla. 5th DCA 2010). See also Stuyvesant Ins. Co. v. Butler, 314 

So. 2d 567, 570 (Fla. 1975) (holding that insurance policies “should be construed so as to give 

effect to the intent of the parties and if uncertainty is present in a policy, it should be construed 

against the insurer and in favor of the insured.”). Where the Florida Supreme Court has laid to 

rest that a policy term in a particular type of policy is clear and unambiguous, courts applying 

Florida law to an insurance contract interpretation are constrained by the determination of 

unambiguity. City of Delray Beach v. Agric. Ins. Co., 936 F. Supp. 931, 937 (S.D. Fla. 1994), 

aff'd sub nom. City of Delray Beach, Fla. v. Agric. Ins. Co., 85 F.3d 1527 (11th Cir. 1996)

c. Application

The Policy has a Self-Insured Retention (“SIR”) of $500,000. See infra. The Policy 

further provides that the SIR “applies separately to each and every ‘occurrence’ and offense 

covered under this Coverage Part.” See [DE 20-3] at p. 22. The Policy provides that Evanston 

“will pay ‘ultimate net loss’ in excess of the SIR that the Insured is legally obligated to pay 

because of ‘bodily injury’... to which this insurance applies.” See id. The Policy in turn provides 

that this insurance applies to “bodily injury” “[c]aused by an ‘occurrence’ that takes place in the 

‘covered territory.’” See [DE 20-3] at p. 11. The term “Occurrence” is defined to mean “an 

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accident, including continuous or repeated exposure to substantially the same general harmful 

conditions.” See [DE 20-3] at p. 25. The term “accident” is not defined in the Policy. See [DE 

20-3]. 

Defendant Evanston argues that each victim of the Parkland Shooting Incident constitutes 

a separate “occurrence” under the Policy, such that the SIR of $500,000 must be separately met 

by BSO for each victim or gunshot that did harm. In other words, according to Evanston, BSO 

must incur tens of millions of dollars before being entitled to any coverage under the Policy. 

BSO, on the other hand, contends that the Parkland Shooting Incident constitutes a single 

“occurrence,” such that it must exhaust only a single SIR of $500,000 under the Policy before 

coverage is triggered. 

In support of its position, Defendant Evanston relies on the Florida Supreme Court case 

Koikos v. Travelers Ins. Co., 849 So. 2d 263 (Fla. 2003), which it contends controls the outcome 

in this case. Koikos involved a scenario where an assailant entered a restaurant and shot two 

individuals in the same round of shots in the aftermath of a dispute. The insured, Koikos, was 

sued for negligent security related to the incident. A declaratory action was filed, and the parties

filed cross-motions as to whether the case involved one occurrence or multiple occurrences

under the policy. The definition of “occurrence” at issue in Koikos was nearly identical to that 

here in the Evanston Policy – “an accident, including continuous or repeated exposure to

substantially the same harmful conditions.” The Florida Supreme Court set to answer the 

following question:

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 

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OR REPEATED EXPOSURE TO SUBSTANTIALLY THE SAME GENERAL 

HARMFUL CONDITIONS”?

Koikos, 849 So. 2d at 264. In Koikos, the Florida Supreme Court construed the insurance policy 

language in favor of the insured policyholder, ruling that each shooting constituted a separate 

occurrence, each subject to a separate limitation of liability under the insurance policy. Id. at 

273. In doing so, the Florida Supreme Court adopted the “cause theory,” in which a court 

focuses on the independent immediate acts which gave rise to the injury – not on the basis for 

liability asserted against the insured (i.e., negligent security). Importantly in Koikos, construing 

the policy language to mean that each shooting was a separate occurrence was a construction 

determination in favor of the insured and against the insurer. The Florida Supreme Court 

specifically stated that:

Further, even if we accepted [the insurance company] Travelers’ construction of 

the policy as a reasonable interpretation, the insurance policy would be considered 

ambiguous because the relevant language would be susceptible to more than one 

reasonable interpretation-one providing coverage and the other limiting coverage. 

See Auto-Owners, 756 So.2d at 34. “Ambiguous policy provisions are interpreted 

liberally in favor of the insured and strictly against the drafter who prepared the 

policy.” Id.; see also CTC Dev. Corp., 720 So.2d at 1076 (“[W]here policy 

language is subject to differing interpretations, the term should be construed 

liberally in favor of the insured and strictly against the insurer.”).

Koikos, 849 So. 2d at 271. See also Koikos v. Travelers Ins. Co., 849 So. 2d 263, 272 (Fla. 

2003) (“Travelers had several means by which to effectively limit its liability under the policy, 

including policy exclusions, the $500,000 per occurrence limit, and the policy's $1,000,000 

‘aggregate limit.’ If Travelers intended for the multiple shootings to constitute one occurrence, it 

could have drafted clear policy language to accomplish that result.”). Here, on the other hand, 

construing the policy language to mean that each shooting is a separate occurrence would be a 

determination in favor of the insurer, which the Court may not do if there are multiple 

reasonable interpretations of the policy language. 

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Defendant Evanston contends that the Florida Supreme Court’s Koikos decision did not 

determine that “occurrence” as defined in the policy was ambiguous when applied to a mass 

shooting incident. Rather, Evanston insists that construing an ambiguity in favor of the insured 

played no role in the Koikos holding. The Court disagrees. First, the opinion in Koikos makes it 

clear that the Florida Supreme Court determined that “occurrence” was ambiguous as applied to 

a multiple shooting incident and that the Court would therefore construe it liberally in favor of 

the insured and strictly against the insurer:

The policy's definition of occurrence as applied to the facts of this case is 

susceptible to more than one reasonable interpretation. “Occurrence” can 

reasonably be stated to refer to the entire shooting spree or to each separate shot 

that resulted in a separate injury to a separate victim. Accordingly, we construe 

the term “occurrence” in Travelers’ policy in favor of the insured.

Koikos, 849 So. 2d 263, 273 (Fla. 2003) (emphasis added). Second, the Florida Supreme Court 

in 2005 explicitly stated in Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 534 

(Fla. 2005) that their ruling in Koikos was based upon construing the term “occurrence,” which it 

found ambiguous as applied to the facts of that case, in favor of the insured:

In [Koikos], two individuals were shot in a restaurant. The victims sued the owner 

for negligence. The policy covered “bodily injury or property damage arising out 

of any one occurrence.” Id. at 266. The policy defined “occurrence” as “an 

accident, including continuous or repeated exposure to substantially the same 

general harmful conditions.” It did not define “accident.” Id. The Eleventh Circuit 

certified a question, which we rephrased as follows:

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”?

Id. at 264. We answered the question in the affirmative, holding that the 

“policy's definition of occurrence as applied to the facts of this case is 

susceptible to more than one reasonable interpretation.” Id. at 273. Because 

the term “occurrence” was ambiguous, we construed it in the insured's favor. 

Id.

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Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 534 (Fla. 2005) (emphasis 

added). Accordingly, while the Court agrees with Evanston that Koikos is controlling precedent 

here, Koikos does not compel the result that each shooting is a separate “occurrence” under the 

Policy. Koikos instead found each shooting to be a separate occurrence because the definition of 

the term “occurrence” was ambiguous, and the policyholder in that case favored that 

interpretation to maximize coverage. See Koikos, 849 So. 2d at 271; see also Washington Nat. 

Ins. Corp. v. Ruderman, 117 So. 3d 943, 949–50 (Fla. 2013) (“[W]here the provisions of an 

insurance policy are at issue, any ambiguity which remains after reading each 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.”).

In 2014, the Florida Fifth District Court of Appeal, expressly following Koikos, ruled that 

it must construe the policy’s definition of occurrence, which was ambiguous as to the facts in 

that case, against the insurer and in favor of the insured. See Maddox v. Fla. Farm Bureau Gen., 

129 So. 3d 1179, 1180 (Fla. 5th DCA 2014). That case involved a mother and son who were 

injured by dog bites; the dog bit the son first and then bit the mother after the mother tried to get 

the dog to release its grip on the son’s face. Id. at 1180. The issue in Maddox was whether 

injuries to two people from dog bites constituted separate occurrences under a homeowners’ 

policy, which policy had personal liability coverage limited to $100,000 for each “occurrence.”

Id. at 1180-81. Like in the present case, the term “occurrence” in that policy was defined as “an 

accident, including continuous or repeated exposure to substantially the same general harmful 

conditions.” Id. at 1180-81. The insurance carrier argued that the “dog attack” constituted one 

occurrence, so as to limit its coverage. The Fifth DCA disagreed. Relying on Koikos, the Fifth 

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DCA ruled that it must construe the policy’s definition of occurrence, which was ambiguous as 

to the facts in that case, against the insurer and in favor of the insured:

Likewise, in this case, it is reasonable to construe the occurrence as the entire dog 

attack or as each separate dog bite. Because ambiguous provisions must be 

construed against the insurer, the occurrence language in the instant policy must 

be construed as meaning each separate dog bite that resulted in a separate injury 

to a separate victim was a separate occurrence. For these reasons, the trial court 

erred in holding that the injuries which Maddox and Ivan sustained were not 

separate occurrences under Bullard's policy.

Maddox, 129 So. 3d at 1182 (emphasis added).

The term “occurrence” likewise is ambiguous here as to the facts in this case, as it 

reasonably can be interpreted to mean either the entire shooting spree by Cruz or each shot he 

fired that resulted in separate injuries to a separate victim. Accordingly, applying Koikos, 

because BSO favors the Parkland Shooting Incident to be a single “occurrence” under the Policy, 

that is the interpretation this Court must adopt under Florida’s well-settled principles of 

insurance policy interpretation, which require ambiguity in an insurance policy to be construed in 

favor of the insured. See Koikos, 849 So. 2d at 273; Taurus, 913 So. 2d at 534.

The cases Defendant Evanston cites in urging the Court to reach the contrary result are 

distinguishable. State Nat. Ins. Co. v. Lamberti, 362 F. App’x 76 (11th Cir. 2010) involved a 

mass protest in Miami, Florida in 2003 when Miami hosted the Free Trade Area of the Americas 

(the “FTAA”). In attempt to prevent the protestors from disrupting FTAA meetings, BSO made 

preemptive “sweeps” of certain public areas and detained or arrested hundreds of people. Many 

of those detained or arrested sued BSO for civil rights violations under 42 U.S.C. § 1983,

alleging that BSO had suppressed their lawful exercise of their First Amendment rights, and that 

certain individual officers committed specific civil rights violations, including arrest without 

probable cause, excessive force and unlawful detention (the “FTAA Claims”). BSO’s insurer 

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filed suit seeking a declaration that the FTAA claims constituted multiple occurrences, each one 

subject to its own SIR. On appeal, the Eleventh Circuit analyzed whether the FTAA claims 

represent only one occurrence, or more than one occurrence under the policy language of the 

insurance contract. See State Nat. Ins. Co. v. Lamberti, 362 F. App'x 76, 81 (11th Cir. 2010)

(“The final issue is whether the FTAA claims represent only one occurrence, or more than one 

occurrence. If the FTAA claims constitute one occurrence, State National may be subject to 

substantial liability, whereas if the FTAA claims constitute more than one occurrence, State 

National may not be liable to BSO at all.”). Citing to the Florida Supreme Court’s 2003 decision 

in Koikos, the Eleventh Circuit held that, “[u]nder Florida law, the FTAA claims, which include 

separate lawsuits by many different plaintiffs, all of whom had their own interactions with 

members of the BSO, represent more than one occurrence.” State Nat. Ins. Co., 362 F. App'x at

81–82 (emphasis added). “[E]ach interaction with the individual officers is the cause of the 

claim, and is distinguishable in time and space. Thus, each interaction could be a separate 

occurrence.” Id. at 82. Lamberti, with various civil rights plaintiffs, each with their own separate 

interactions with separate law enforcement officers, is thus totally distinct on its facts from the 

case presented here. 

State Nat’l Ins. Co. v. City of Miami, 2010 WL 11506250 (S.D. Fla. May 11, 2010), aff'd 

sub nom. State Nat. Ins. Co. v. City of Miami, 403 F. App'x 478 (11th Cir. 2010), which was 

decided after the Eleventh Circuit’s decision in State Nat. Ins. Co. v. Lamberti, 362 F. App'x 76, 

81 (11th Cir. 2010), involved two groups of lawsuits filed against the City for false arrest, 

assault, battery, negligence, and other misconduct allegedly committed by City of Miami law 

enforcement. The first group of lawsuits involved claims that as a result of Miami’s failure to 

provide officers for security purposes at a high school graduation party, an altercation occurred 

Case 0:22-cv-62076-WPD Document 38 Entered on FLSD Docket 05/24/2023 Page 13 of 20
that led to a single gunman engaging in a 45-second shooting spree where he shot six partygoers.

State Nat'l Ins. Co. 2010 WL 11506250, at *2. The other group of lawsuits consisted of actions 

relating to law enforcement’s response to the protests at the FTAA meeting, alleging that illegal 

activities were used to limit protests, including excessive force and improper restrictions of 

protestors’ constitutional rights. See id. The insurance policy at issue provided that the 

insurance coverage applied only in excess of a $500,000 SIR responsibility for each 

“occurrence.” Id. at p. 2. The court, relying on Koikos and Lamberti, held that the claims in each 

set of actions arose from multiple occurrences, not one occurrence. Id. at *4-5. However, in 

making this determination, the district court overlooked the Florida Supreme Court’s 

determination and application of ambiguity in its Koikos opinion, where it had found the term 

“occurrence” ambiguous as applied to the multiple shooting facts of that case and thus construed 

the term in favor of the insured. There is no indication in her order that Judge Seitz considered 

the Florida Supreme Court’s opinion in Taurus (explicitly pointing out this finding of ambiguity 

in Koikos) in her analysis of the Florida Supreme Court’s decision in Koikos. See City of Miami, 

2010 WL 11506250.

In Port Consolidated, Inc. v. Intern. Ins. Co. of Hannover, PLC, 826 F. App’x 822 (11th 

Cir. 2020), the plaintiff issued cards to its customers to pump 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. Numerous different truck drivers over the span of nearly a year used this error to 

steal fuel from different fuel dispensers, making that case vastly dissimilar on the facts from the 

mass shooting incident that occurred in this case. The court that each theft of fuel by truck 

drivers (in excess of the 75-gallon limit) was an act separate and distinguishable in “time and 

space” and constituted a separate “occurrence” under the insurance policy. Id. at 828. And South 

Case 0:22-cv-62076-WPD Document 38 Entered on FLSD Docket 05/24/2023 Page 14 of 20
Central Educ. Risk Mgmt. Program v. Star Ins. Co., 2018 WL 11353289 (S.D. Fla. Dec. 18, 

2018) involved an underlying lawsuit that alleged a child was sexually abused on multiple dates

during a period of more than a year while she attended an elementary school afterschool

program. On those facts, the court held that each instance of abuse during that year-plus period 

was a separate occurrence subject to a separate SIR. S. Cent. Educ. Risk Mgmt. Program, 2018 

WL 11353289, at *9.

The Court’s conclusion in this case that it reasonable to interpret the facts of the Parkland 

Shooting Incident as a single “occurrence” under the Policy is further supported by the Florida 

Supreme Court’s sovereign immunity decisions in Barnett v. Dep’t of Fin. Services, 303 So. 3d 

508 (Fla. 2020) and Guttenberg v. School Bd. of Broward Cty., 303 So. 3d 518 (Fla. 2020) --

which arose from Parkland Shooting Incident. Barnett v. Dep’t of Fin. Services, 303 So. 3d 508 

(Fla. 2020), involved a situation in which a man fatally shot his estranged wife and four of her 

children, and severely wounded a fifth child. Following this incident, representatives of the 

deceased filed complaints alleging that the Florida Department of Children and Families (DCF) 

breached multiple nondelegable duties and failed to protect the children from an unreasonable 

risk of harm. The Florida Supreme Court rephrased the certified question as follows:

WHEN MULTIPLE CLAIMS OF INJURY AGAINST A STATE AGENCY OR 

ACTOR ARISE FROM ONE OVERALL INJURY-CAUSING EVENT, DOES 

THE LIMITATION ON THE WAIVER OF SOVEREIGN IMMUNITY IN 

SECTION 768.28(5), FLORIDA STATUTES, CAP THE LIABILITY OF 

STATE AGENCIES AT $200,000 FOR ALL RESULTING INJURIES OR 

DEATHS AS CLAIMS AND JUDGMENTS “ARISING OUT OF THE SAME 

INCIDENT OR OCCURRENCE”?

Barnett, 303 So. 3d at 510. The Florida Supreme Court, interpreting the phrase “same incident 

or occurrence,” held that it “is most reasonably understood as referring to the criminal (more 

broadly, injury-causing) event as a whole, not to the smaller segments of time and action that 

Case 0:22-cv-62076-WPD Document 38 Entered on FLSD Docket 05/24/2023 Page 15 of 20
make up the crime against each individual victim, because this is the way that we commonly talk 

about this type of tragic occurrence—as a single event with multiple victims.” Id. at 517. 

Moreover, the Florida Supreme Court stated that, “[h]owever, to the extent that the phrase 

‘incident or occurrence’ is ambiguous and could reasonably be read as referring either to the 

overall incident or to the smaller segments of time and action that constitute the individual 

crimes against each separate victim, this would lead us to the substantive rules of statutory 

construction that statutes altering the common law ‘are narrowly construed’ and that ‘[w]aivers 

of sovereign immunity must be construed narrowly in favor of the government.’” Id. 

Accordingly, the Florida Supreme Court answered the certified question in the affirmative, ruling 

that “the claims stemming from the mass shooting of Dell's victims arose from the same 

incident or occurrence and are therefore subject to the $200,000 aggregate cap for damages 

paid by the State, its agencies, or subdivisions.” Id. at 517 (emphasis added). 

Guttenberg v. School Bd. of Broward Cty., 303 So. 3d 518 (Fla. 2020), involved multiple 

claims against the School Board of Broward County related to the same Parkland shooting 

incident at issue in this case. The Florida Supreme Court held that the Parkland Shooting 

Incident was a single occurrence for purposes of the sovereign immunity damages cap: “the 

mass shooting committed by [the shooter] is a single ‘incident or occurrence’ ... and the 

cumulative liability for all claims of injury resulting from the incident may not exceed the 

aggregate cap ... set forth in the statute.” Id. at 519 (emphasis added). If it is reasonable to 

interpret the Parkland Shooting Incident as a single occurrence with multiple victims in the 

sovereign immunity context, then it is an equally reasonable interpretation in the insurance 

context—the only difference being who gets the benefit when there are multiple reasonable 

interpretations. With sovereign immunity, an ambiguous term must be construed narrowly in 

Case 0:22-cv-62076-WPD Document 38 Entered on FLSD Docket 05/24/2023 Page 16 of 20
favor of the government, Guttenberg, 303 So. 3d at 516; with insurance, it must be construed in 

favor of the policyholder. Wash. Nat'l, 117 So. 3d at 949-50. Accordingly, it follows that the 

Court should construe the Parkland Shooting Incident to be a single occurrence under the Policy 

because that is the interpretation of the term occurrence, which is ambiguous under the facts in 

this case, that is favored by the insured.

That courts from various jurisdictions have reached differing conclusions on the meaning 

of the term “occurrence” when construing insurance policies in incidents involving multiple 

shootings constitutes further proof of ambiguity. See St. Paul Mercury Ins. Co. v. F.D.I.C., 774 

F.3d 702, 709–10 (11th Cir. 2014) (“However, it seems to us that the most compelling argument 

is that courts who have addressed similarly worded insured v. insured exclusions have reached 

different results.”); Sec. Ins. Co. of Hartford v. Investors Diversified Ltd., Inc., 407 So. 2d 314, 

316 (Fla. 4th DCA 1981) (“The insurance company contends that the language is not ambiguous, 

but we cannot agree and offer as proof of that pudding the fact that the Supreme Court of 

California and the Fifth Circuit in New Orleans have arrived at opposite conclusions from a 

study of essentially the same language.”). For example, in Donegal Mut. Ins. v. Baumhammers, 

938 A.2d 286 (Pa. 2007), the son of the insureds shot multiple people over a span of two hours 

resulting in five deaths and serious bodily injury to a sixth person and the insured parents of the 

shooter were subsequently sued for negligence. Id. at 288. The insurance policy similarly 

defined “occurrence” as an “accident, including continuous or repeated exposure to substantially 

the same general harmful conditions, which results, during the policy period in ... [b]odily injury 

or [p]roperty damage.” Id. at 289. The Pennsylvania Supreme Court held that, because the claims 

were predicated on the parents’ negligence, and the resulting injuries to the victims stemmed 

from that one cause, the parents’ alleged negligence constituted “one accident and one 

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occurrence.” Id. at 295. In Bomba v. State Farm Fire & Cas. Co., 879 A.2d 1252 (N.J. Super. 

Ct. App. Div. 2007), police officers sued insured parents for negligence after their son shot two 

police officers multiple times, seeking a declaration from the court that each gunshot constituted 

a separate occurrence under the policy. Id. at 1252-53. The New Jersey Superior Court 

concluded that there was only one occurrence under the policy. Id. at 1255. See also RLI Ins. Co. 

v. Simon’s Rock Early College, 765 N.E.2d 247 (Mass. App. Ct. 2002) (insured’s alleged 

negligence in failing to prevent shooter from using gun at school constituted the sole 

“occurrence” where student embarked on a shooting rampage that resulted in two dead and four 

others injured); Travelers Indem. Co. v. Olive’s Sporting Goods Inc., 764 S.W.2d 596 (Ark. 

1989) (one “occurrence” within meaning of policy where insured was sued for negligence by 

each victim of shooting spree). These decisions from various jurisdictions construing the term 

“occurrence” in insurance policies in the context of mass shooting incidents reinforce the Florida 

Supreme Court’s conclusion that “occurrence” in commercial general liability policies is 

ambiguous when applied to a mass shooting situation like the Parkland Shooting Incident. 

Based upon the foregoing, the term “occurrence” within the meaning of the Policy is 

ambiguous as applied to the facts in this case, as it reasonably can be interpreted to mean either 

the entire shooting spree by Cruz or each shot he fired that resulted in separate injuries to a 

separate victim. Applying Koikos and its progeny, because BSO favors the Parkland Shooting 

Incident to be a single “occurrence” under the Policy, that is the interpretation this Court adopts

under Florida’s well-settled principles of insurance policy interpretation, which require

ambiguity in an insurance policy to be construed in favor of the insured. See Koikos, 849 So. 2d 

at 273; Taurus, 913 So. 2d at 534; Maddox, 129 So. 3d at 1182. Accordingly, the Court denies 

Defendant Evanston’s motion to dismiss for failure to state a claim. 

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d. Defendant Evanston’s Motion to Strike Claims for Supplemental Relief and 

Pre-Judgment and Post-Judgment Interest

Alternatively, in the event the Court does not dismiss BSO’s declaratory judgment claim, 

Defendant Evanston moves to strike BSO’s claims for supplemental relief in its prayer for relief,

as well as its claims for pre-judgment and post-judgment interest pursuant to Rule 12(f). 

First, Evanston moves to strike BSO’s request in Paragraph D of its prayer for relief that 

the Court “direct EIC to fulfill its obligations under the Policy” and BSO’s request in paragraph 

F of its prayer for relief that the Court retain jurisdiction for further supplemental relief Evanston 

argues that it is unclear what relief BSO seeks in these requests. In response, BSO clarifies that 

BSO is not yet seeking to have the Court direct Evanston to indemnify it, but rather only to 

declare that, upon exhaustion of a single Self-Insured Retention of $500,000, Evanston is 

obligated to pay BSO the amount BSO becomes legally obligated to pay within the liability 

limits of the Policy. BSO also asserts that Evanston has failed to demonstrate that BSO’s prayer 

for this Court to retain jurisdiction for the purposes of further supplemental relief and enforcing 

the Court’s orders somehow is improper. It appears from Evanston’s Reply that it is not pursuing 

striking these requests. Accordingly, Court denies Evanston’s motion to strike these requests

from BSO’s prayer for relief.

Second, Defendant Evanston asserts that BSO’s claims for pre- and post-judgment 

interest should be stricken as improper because no amount of damages is sought in BSO’s instant 

action for declaratory judgment. BSO disagrees, asserting that relief in a declaratory action 

claim can include a money judgment for damages, and therefore that pre- and post-judgment 

interest are reasonable requests. See, e.g., Hill v. Palm Beach Polo, Inc., 805 So. 2d 1014, 1016 

(Fla. 4th DCA 2001) (“Relief is not limited to declaratory relief but also includes all relief 

necessary, including money judgments.”). However, as Evanston notes in its Reply, BSO’s 

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action does not seek monetary damages from Evanston and therefore there is no present basis for 

requesting pre- and post-judgment interest. Accordingly, the request for pre- and post-judgment 

interest shall be stricken without prejudice. 

IV. Conclusion 

Based upon the foregoing, it is ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion to Dismiss and Motion to Strike [DE 21] is hereby

GRANTED in part and DENIED in part; 

2. Defendant’s motion to dismiss for failure to state a claim is

DENIED; 

3. Defendant’s motion to strike BSO’s requests for supplemental relief in its prayer 

for relief is DENIED; 

4. Defendant’s motion to strike BSO’s requests for pre- and post-judgment interest 

is GRANTED. BSO’s requests for pre- and post-judgment interest are hereby 

stricken without prejudice; 

5. Defendant shall file its answer to the Amended Complaint on or before June 7, 

2023. 

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, 

this 24th day of May, 2023. 

 

Copies furnished to: 

Counsel of Record 

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