SOUTHERN-OWNERS INSURANCE COMPANY

v.

MAC CONTRACTORS OF FLORIDA, LLC

This insurance-coverage dispute comes before the Court on remand from the Eleventh Circuit vacating the Judgment entered by this Court in favor of plaintiff Southern-Owners Insurance Company’s claim for declaratory judgment and against defendant MAC Contractors of Florida, LLC on their counterclaim. (Docs. ##54, 56.) See Southern-Owners Ins. Co. v. MAC Contractors of Florida LLC et al., 768 F. App’x 970 (11th Cir. 2019). The Eleventh Circuit noted that the district court did not resolve the issue of coverage, and that plaintiff’s arguments regarding two other exclusions barring coverage were never raised or addressed in the district court. Therefore, this Court vacated the judgment on May 14, 2019, and the case was reopened. (Doc. #74.) After the case was reopened, Southern-Owners moved for leave to amend (under opposition) and was granted leave to file a Second Amended Complaint. (Docs. ## 83, 84.) Although MAC Contractors had initially filed a counterclaim to the Amended Complaint (Doc. 31), it did not include a counterclaim in its Answer and Affirmative Defenses to the Second Amended Complaint (Doc. #87). Even so, MAC Contractors now moves for summary judgment (Doc. #89) on its initial counterclaim (Doc. #31). Plaintiff has also moved for summary judgment (Doc. #90). Both parties seek a declaratory judgment as to plaintiff’s duty to defend pursuant to two almost identical commercial general liability policies against a nowsettled state court lawsuit¹ brought by Paul and Deborah Doppelt as trustees of their respective trusts, styled Doppelt et al. v. MAC Contractors of Florida, LLC d/b/a KJIMS Construction, No. 2016- CA-1530 (the “Doppelt Action”). Because there is currently no operative counterclaim before the Court, MAC Contractors’ Motion for Summary Judgment (Doc. #90) is moot. See Malowney v. Federal Collection Deposit Group, 193 F. 3d 1342, 1345 n.1 (11th Cir. 1999) (noting that “[a]n amended

One final issue. The Court previously stayed the indemnity issue pending the Court’s determination of the duty to defend issue or the Doppelt Action’s conclusion, reasoning that if Southern- Owners had no duty to defend MAC, it follows that Southern-Owners has no duty to indemnify. (Doc. #39.) Because the Doppelt Action has resolved, the Court informed the parties that it was inclined to have the parties brief both the defense and indemnity issues in their summary judgment motions. (Doc. #94.) The parties responded that despite the resolution of the Doppelt Action, the indemnity issue should remain stayed pending the Court’s ruling on the duty to defend because if Southern-Owners has no duty to defend, there would be no duty to indemnify. While that may be the case, in order to avoid the filing of yet another round of summary judgment briefing in the event the Court finds there is a duty to defend, the Court lifts the stay on the indemnity issue and will require the parties to argue their positions on both defense and indemnity in their summary judgment motions. The Court will extend the page limitations to accommodate this. Accordingly, it is hereby ORDERED AND ADJUDGED: 1. Defendant’s Motion for Partial Summary Judgment (Doc. 89) is denied as moot. 2. Plaintiff’s Motion for Summary Judgment (Doc. #90) is denied without prejudice.

3. Defendant may file an amended answer, affirmative defenses, and counterclaim to the Second Amended Complaint within FOURTEEN (14) DAYS of this Order. Plaintiff may file a Reply FOURTEEN (14) DAYS thereafter. 4. The following deadlines shall apply for the remainder of the case: Dispositive motions (limited December 2, 2019 to 35 pages) Meeting in person to prepare April 2, 2020 the Final Pretrial Statement Joint Final Pretrial | April 9, 2020 Statement All other motions including] April 2, 2020 motions in limine and trial briefs Final Pretrial Conference April 24, 2020 at 9:30 a.m. Trial Term begins (Jury) May 4, 2020

DONE and ORDERED at Fort Myers, Florida, this _3rd_ day of October, 2019.

\ Pome Ap p VAY = Pe

E. STEELE

Sq IGOR UNITED STATES DISTRICT JUDGE Copies: Counsel of Record