[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 11675
Non

- Argument Calendar

____________________
CAPITOL SPECIALTY INSURANCE CORP., a foreign corporation,
Plaintiff

- Appellee,

versus WEST VIEW APARTMENTS, INC., a Florida corporation,

Defendant

- Appellant,

JISELL RAMIREZ ESPINOSA, as Personal Representative of the Estate of USCA11 Case: 21-11675 Date Filed: 12/22/2021 Page: 1 of 52 Opinion of the Court 21

- 11675 Manuel Ramirez Crespo, et al.,

Defendant.

____________________ Appeal from the U nited States District Court for the Southern District of Florida D.C. Docket No. 1:20

- cv

- 22476

- MGC

____________________ Before W ILSON , N EWSOM , and A NDERSON , Circuit Judges.
PER CURIAM: West View Apartments, Inc

. appeals a judgment on the pleadings granted to Capitol Specialty Insurance Corp . Capitol sued West View for a declaratory judgment that West View’s insurance policy with Capit o l exclude d injuries caused by West View ’s employees pouring acid down a ventilation shaf t and, therefore, Capitol has no duty to defend West View in a Florida state court action brought against West View by injured inhabitants of the apartment

. On appeal, West View argues that judgment on the pleadings was improper because (1) West View deni ed material facts alleged in the complaint, and (2) the “pollution exclusion” that Capitol alleges was part of West View’s insurance policy did not, by its plain terms, encompass the accidental pouring of acid. Because the district court applied the wrong standard for deciding a USCA11 Case: 21-11675 Date Filed: 12/22/2021 Page: 2 of 521

- 11675 Opinion of the Court 3 motion for judgment on the pleadings, we reverse without reaching the merits

. 1 “Judgment on the pleadings is appropriate where there areno material facts in dispute and the moving party is entitled to judgment as a matter of law. ” Perez v. Wells Fargo N.A. , 774 F.3d 1329, 1335 (11th Cir. 2014) (quoting Cannon v. City of W. Palm Beach
, 250 F.3d 1299, 1301 (11th Cir. 2001)) . “In determining whether a party is entitled to judgment on the pleadings, we accept as true all material fa cts alleged in the non

- moving party ’ s pleading , and we view those facts in the light most favorable to the non

- moving party

. ” Id. (emphasis added) (citing Hawthorne v. Mac Adjustment, Inc. , 140 F.3d 1367, 1370 (11th Cir.1998) )

. “ If a comparison of the averments in the competing pleadings reveals a material dispute of fact, judgment on the pleadings must be denied. ” Id. (citing Stanton v. Larsh , 239 F.2d 104, 106 (5th Cir. 1956)). Here, the district court stated the legal standard as follows: “When d etermining whether judgment on the pleadings is appropriate, ‘ [a]ll facts alleged in the complaint must be accepted as true and viewed in the light most favorable to the nonmoving party. ’ ” Doc. 43 at 2 (emphasis added) (quoting Douglas Asphalt Co. v. Qore , Inc. , 541 F.3d 1269, 1273 (11th Cir. 2008) ). In other words, the court took all the facts alleged in the complaint

— the moving

1 “ We review de novo an order granting judgment on the pleadings. ” Perez v. Wells Fargo N.A. , 774 F.3d 1329, 1335 (11th Cir. 2014). USCA11 Case: 21-11675 Date Filed: 12/22/2021 Page: 3 of 54 Opinion of the Court 21

- 11675
party’s pleading

— as true and decided the merits of the case given those facts. This was reversible error. 2 It’s true that a number of our cases state that when deciding a motion for judgment on the pleadings, courts “must accept the facts alleged in the complaint as true.” Cannon , 250 F.3d at 1301 ;

see also Douglas Asphalt , 541 F.3d at 1273 ; Interline Brands , Inc. v. Chartis Specialty Ins. Co. , 749 F.3d 962, 965 (11th Cir. 2014)

. But , crucially, we made these statements in the context of cases where

— as is typical

— the defendant moved for judgment on the pleadings. See Cannon , 250 F.3d at 1301 (noting that the dist rictcourt granted the defendants’ motion for judgment on the pleadings); Douglas Asphalt , 541 F.3d at 1272 (noting that the defendants moved for judgment on the pleadings) ; Interline Brands , 749 F.3d
at 96 5 (same)

. Whe n the defendant moves for judgment o n the pleading s , the complaint is the “non

- moving party’s pleading,” Perez , 774 F.3d at 1335, and so we “must accept the facts alleged in the complaint as true,” Cannon , 250 F.3d at 1301. By contrast, when the plaintiff moves for judgment on the pleadings

— as happened here

— “the old rule obtains that the fact allegations of the

answer are to be taken as true, but those of the complaint are taken

2 The district court properly cited the standard that a motion for judgment on the pleadings will be granted when “there are no material fact s in dispute and the moving party is entitled to judgment as a matter of law.” But the court’s recitation of this standard came only came after its erroneous statement that it was required to take all the facts alleged in the complaint as true. And the

c ourt’s order reveals no a nalysis of whether material facts were in dispute at this stage of the litigation. USCA11 Case: 21-11675 Date Filed: 12/22/2021 Page: 4 of 521

- 11675 Opinion of the Court 5

as true only where and to the extent that they do not conflict with those of the answer

. ” Bass v. Hoagland
, 172 F

. 2 d 205 , 207 (5th Cir. 1949) (emphas i s added)

. Therefore, by accepting all facts alleged in Capitol’s complaint as true rather than all the facts alleged in West View’s answer, the district court erred as a matter of law.
This error wasn’t harmless because West View denied material facts in its answer

— chiefly, that West View’s insurance policy with Capitol really included the “Total Pollution Exclusion Endorsement” that Capitol alleges was part of that policy. West Viewalso alleged, as part of its affirmative defense of estoppel, that Capitol “impart[ ed] the impression that the general liability coverage of the insurance was not limited by a material carve

- out” of the pollution coverage. It’s true that Capitol included as an exhibit to its complaint a copy of what it claims is West View’s insurance po licy that contains the pollution exclusion. But even if discovery would eventually reveal Capitol’s exhibit to be genuine and West View’s responsive allegations to be meritless, the district court was required, when deciding the plaintiff’s motion for jud gment on the pleadings, to accept West View’s allegations as true. See Bass , 172 F.2d at 207. Because “ comparison of the averments in the competing pleadings revea ls a material dispute of fact, judgment on the pleadings must be denied.” Perez , 774 F.3d at 1335.
REVERSED. USCA11 Case: 21-11675 Date Filed: 12/22/2021 Page: 5 of 5