[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 21-11675

Non-Argument Calendar

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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 

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2 Opinion of the Court 21-11675

Manuel Ramirez Crespo, et al.,

Defendant.

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Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cv-22476-MGC

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Before WILSON, NEWSOM, and ANDERSON, 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 Capitol excluded injuries caused by West 

View’s employees pouring acid down a ventilation shaft 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 denied 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 

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21-11675 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 are 

no 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 facts 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 determining 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). 

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4 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 district 

court 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 965 (same). When the defendant moves for judgment on the 

pleadings, 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 facts 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 

court’s order reveals no analysis of whether material facts were in dispute at 

this stage of the litigation. 

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21-11675 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.2d 205, 207 (5th Cir. 

1949) (emphasis 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 View 

also 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 policy 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 judgment 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 reveals a material dispute of fact, judgment on the 

pleadings must be denied.” Perez, 774 F.3d at 1335. 

REVERSED. 

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