[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-11438

Non-Argument Calendar

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D.C. Docket No. 2:12-cv-14081-JEM

EMPIRE FIRE & MARINE INSURANCE COMPANY

Plaintiff–Appellee,

versus

SCOTT FLOYD,

Defendant–Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(November 6, 2015)

Before JORDAN, JILL PRYOR, and DUBINA, Circuit Judges.

PER CURIAM:

Empire Fire & Marine Insurance Company (“Empire”) filed a complaint for 

declaratory judgment in the district court. This action stemmed from an underlying 

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Florida state court tort case. Empire sought a declaration with regard to its rights 

and obligations pursuant to a supplemental liability insurance policy it provided to 

Enterprise Leasing Company. The parties filed cross-motions for summary 

judgment, and the district court granted Empire’s motion and denied Scott Floyd’s 

motion based on an exclusionary provision of the insurance policy. Scott Floyd 

appeals the district court’s judgment, and we reverse.

I. BACKGROUND

Scott Floyd and Steven Floyd were employees of A-Plus Storage, Inc. Scott 

Floyd rented a van from Enterprise Leasing Company (“Enterprise”) and drove 

onto the premises of A-Plus Storage. As he was driving, Scott Floyd struck a 

ladder that Steven Floyd was standing on, causing him to fall and sustain bodily 

injuries. When Scott Floyd struck the ladder, he was preparing to move personal 

belongings into a storage space on the premises. When he was injured, Steven 

Floyd was performing maintenance work within the course and scope of his 

employment for A-Plus Storage.

When Scott Floyd rented the van for his personal use, he entered into a 

supplemental liability insurance policy with Enterprise. Pursuant to the terms of 

the policy, Scott Floyd was the insured. The policy excludes liability insurance 

coverage related to bodily injury of any “fellow employee of the insured arising 

out of and in the course of the fellow employee’s employment.” (R. DE 1, Exh. B, 

Sec. I (D)(11). The policy does not define “fellow employee.” 

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II. ISSUE

Whether the district court erred in granting summary judgment to Empire on 

its declaratory judgment action.

III. STANDARD OF REVIEW

We review de novo the district court’s grant of summary judgment. Jurich 

v. Compass Marine, Inc., 764 F.3d 1302, 1304 (11th Cir. 2014). As with all 

contracts, the interpretation of an insurance contract—including determining 

whether an insurance provision is ambiguous—is a question of law to be 

determined by the court and is subject to plenary review. See Fireman’s Fund Ins. 

Co. v. Tropical Shipping & Constr. Co. Ltd., 254 F.3d 987, 1003 (11th Cir. 2001) 

(standard of review is plenary); Amer. United Life Ins. Co. v. Martinez, 480 F.3d 

1043, 1057 (11th Cir.2007) (“Interpreting provisions in insurance contracts ... 

involves questions of law.”).

IV. DISCUSSION

Under Florida law, courts construe insurance contracts in accordance with 

the plain language of the policies as bargained for by the parties and must read the 

contracts as a whole. Liberty Mutual Fire Ins. Co. v. Martinez, 157 So.3d 486, 488 

(Fla. Dist. Ct. App. 2015). Further, courts interpret policy ambiguities liberally in 

favor of the insured and strictly against the insurer who prepared the policy. 

Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So.2d 467, 470 (Fla.1993). 

Florida law is equally well-settled that insuring or coverage clauses are construed 

in the broadest possible manner to effect the greatest extent of coverage. Hudson 

v. Prudential Prop. & Cas. Ins. Co., 450 So.2d 565, 568 (Fla. Dist. Ct. App. 1984) 

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(insurance coverage must be construed broadly and its exclusions narrowly); Nat'l 

Merchandise Co. v. United Serv. Auto. Ass'n, 400 So.2d 526, 532 (Fla. Dist. Ct. 

App. 1981) (terms in policy relating to coverage must be construed liberally in 

favor of insured); Valdes v. Smalley, 303 So.2d 342, 344 (Fla. Dist. Ct. App. 1974) 

(clause extending insurance to insured must be construed liberally in favor of 

insured).

In contrast to insuring clauses, however, courts should strictly construe 

exclusionary clauses in liability insurance policies. See Hudson, 450 So.2d at 468; 

Demshar v. AAACon Auto Transport, Inc., 337 So.2d 963, 965 (Fla.1976) 

(“Exclusionary clauses in liability insurance policies are always strictly 

construed.”); St. Paul Fire & Marine Ins. Co. v. Thomas, 273 So.2d 117 (Fla. Dist. 

Ct. App. 1973) (well settled and almost universally accepted principle of 

construing the exclusion in a manner which affords the broadest coverage). In 

State Farm Fire & Cas. Ins. Co. v. Deni Assoc. of Florida., Inc., 678 So.2d 397 

(Fla. Dist. Ct. App. 1996), the court addressed the strict construction of 

exclusionary clauses in insurance policies. In that case, the court confronted a 

clause that purported to deny any coverage for bodily injury claims caused by the 

“discharge, dispersal, release or escape of pollutants,” and it further defined the 

term pollutants. Id. at 399. In concluding that the exclusions barred coverage of 

the claims in the suit, the court stated that “the current Florida rule is that strict 

construction is required of exclusionary clauses in insurance contracts only in the 

sense that the insurer is required to make clear precisely what is excluded from 

coverage.” Id. at 401. If the insurer does not clearly draft an exclusion that can be 

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“fairly and reasonably read both for and against coverage,” courts will construe the 

exclusionary clause in favor of coverage. Id. “If the insurer makes clear that it has 

excluded a particular coverage, however, the court is obliged to enforce the 

contract as written.” Id. The court further explained that “[s]trict construction 

does not mean that a court must always find coverage.” Id. “Where the insurer 

has defined a term used in the policy in clear, simple, non-technical language, . . . , 

strict construction does not mean that judges are empowered to give the defined 

term a different meaning deemed more socially responsible or desirable to the 

insured.” Id. 

The Florida court decisions make it clear that if an exclusionary clause with 

undefined terms—such as the present case—has not been stated with sufficient 

clarity, then the rule of strict construction requires a construction in favor of the 

insured. Hence, we conclude that the district court erred under Florida law in the 

present case because it should have strictly construed the exclusion in favor of the 

insured. See Hudson, supra; Demshar, supra; Deni, supra. 

The cases cited by the parties in their briefs are not persuasive because they 

involve situations where both the alleged tortfeasor employee and the victim 

employee were engaged in the course of their employment when the incident 

occurred. See e.g. Empire Fire & Marine Ins. Co. v. Dust, 932 S.W. 2d 416, 418 

(Mo. Ct. App. 1996) (under the fellow employee exclusion there is no coverage 

because the tortfeasor and victim were employees of the same employer and both 

were engaged in the course of their employment at the time of the accident). See 

also Short v. Safeco Ins. Co. of Am., 864 S.W. 2d 361, 362 (Mo. Ct. App. 1993) 

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(“fellow employee” exclusion in policy applied because both the alleged tortfeasor 

and the plaintiff were employees of the ambulance company and both were in the 

course and scope of their employment when the incident occurred). Moreover, 

Florida courts interpreting a similar term to “fellow employee”—“cross 

employee”—have determined that the applicability of the exclusion depends on 

whether both employees were in the course and scope of their employment when 

the tort occurred. See Mactown, Inc. v. Continental Ins. Co., 716 So.2d 289, 293 

(Fla. Dist. Ct. App. 1998) (citing cases); Greathead v. Asplundh Tree Expert Co., 

473 So.2d 1380, 1384 (Fla. Dist. Ct. App. 1985) (“the case law is clear that 

coverage of the co-employee will be excluded where (1) the co-employee is an 

insured under the policy, and (2) both the employee and the co-employee were 

acting within the course and scope of their employment at the time of the injury.”).

In the present case, Scott Floyd was not acting within the scope of his 

employment at the time of the incident. He was moving personal belongings into a 

storage unit on the business’s premises. In contrast, Steven Floyd was acting 

within the course and scope of his employment when he was injured. Although 

Scott Floyd and Steven Floyd were “fellow employees” because they had the same 

employer, Scott Floyd was not engaged in his employment when he drove the van 

into the ladder, causing Steven Floyd’s injuries. The policy exclusion does not 

state clearly that coverage is excluded under these circumstances. Thus, under 

Florida law, the district court should have strictly interpreted the exclusion in favor 

of Scott Floyd, the insured, and against the insurer, Empire. Accordingly, the 

district court erred in granting summary judgment to Empire on its declaratory 

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judgment action, and we reverse its judgment and remand this case with directions 

that the district court enter judgment in favor of Scott Floyd consistent with this 

opinion.

REVERSED and REMANDED. 

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