Mid-Continent Casualty Company v. Royal Crane, LLC d/b/a Hunter Crane, etc., Clouthier rothers, Inc., W.F. Roemer Insurance Agency, Inc., etc., and Florida Home Builders Insurance, Inc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

MID-CONTINENT CASUALTY COMPANY,
an Oklahoma corporation,
Appellant,

v.

ROYAL CRANE, LLC d/b/a HUNTER CRANE, as assignee of action from
CLOUTIER BROTHERS, INC., W.F. ROEMER INSURANCE AGENCY,
INC., a Florida corporation, and FLORIDA HOME BUILDERS
INSURANCE, INC.,
Appellees.

No. 4D13-3496

[June 10, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey E. Streitfeld, Judge; L.T. Case No. 11-019302
(07).

James H. Wyman, Ronald L. Kammer, and Edward T. Sylvester of
Hinshaw & Culbertson LLP, Coral Gables, for appellant.

David P. Herman, Michael G. Shannon, and Rollin M. Smith of Murray,
Morin & Herman, P.A., Coral Gables, for appellee, Royal Crane, LLC d/b/a
Hunter Crane, as assignee of action from Cloutier Brothers, Inc.

GROSS, J.

In this case, a crane rental agreement contained an indemnification
clause requiring the lessee to indemnify the lessor for all damages arising
from the use of the crane. An accident occurred and the victim sued the
lessor, who sought indemnification from the lessee. The main issue in this
case is whether the lessee’s liability under the lease indemnification
provision gave rise to a duty to defend and provide coverage under the
lessee’s insurance policy. We hold that the insurer had neither the duty
to defend the lessee nor to provide coverage and reverse the final judgment.

The Underlying Lawsuit
 In April 2006, Robert Damiano sustained injuries while working on a
construction project when a truss fell from a crane. The project’s shell
contractor, Cloutier Brothers, Inc., leased both the crane and its operator
from appellee Royal Crane, LLC d/b/a Hunter Crane, a company that
rented construction cranes and operators to perform hoisting services.
Cloutier executed a rental agreement (“Rental Agreement”) with Hunter
Crane, which contained the following indemnity clause:

RESPONSIBILITY FOR USE: Lessee [(Cloutier)] agrees to
indemnify, defend and hold harmless Lessor [(Hunter Crane)],
its employees, operators and agents from any and all claims
for damage to property, damage to the work or bodily injury
(including death) resulting from the use, operation, or
possession of the crane and operator whether or not it be
claimed or found that such damage or injury resulted in whole
or in part from Lessor’s negligence, from a defective condition
of the crane or operator or from any act, omission or default
of Lessor.

In June 2009, Damiano sued Hunter Crane and the crane operator
asserting negligence, strict liability, and gross negligence. The complaint
briefly mentioned Cloutier, stating that Cloutier retained Hunter Crane’s
services “as a vendor to provide a crane, as needed, for use by
subcontractors working on construction of the residence.” Relying upon
the Rental Agreement’s indemnity clause, Hunter Crane tendered its
defense of the lawsuit to Cloutier. Cloutier declined the tender at the
behest of its insurer—appellant Mid-Continent Casualty Company (“the
Insurer”).

As a result, Hunter Crane brought a third party action against Cloutier,
seeking contractual indemnification and breach of the Rental Agreement.
In its third party complaint, Hunter Crane alleged:

4. Defendant/Third Party Plaintiff, HUNTER, has been sued
by Plaintiff, ROBERT DAMIANO, for damages arising from
injuries [he] allegedly suffered while working at a residential
construction site in Port St. Lucie, Florida. . . .

5. In the Underlying Lawsuit Plaintiff, ROBERT DAMIANO,
alleges that HUNTER’s employee negligently operated a crane
at the residential construction site and allegedly injured [him.]

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 6. At the time of the accident, and all times material, HUNTER
leased the crane and its operator to Third Party Defendant,
CLOUTIER, pursuant to a written contract. . . .

7. Pursuant to the express terms of that contract, CLOUTIER
agreed to indemnify and defend HUNTER from claims for
damage or bodily injury resulting from the use of its crane….

...

9. Third Party Defendant breached its indemnity agreement
by failing to provide HUNTER with an indemnity despite due
demand therefore.

Facing significant exposure, Cloutier notified the Insurer of Hunter
Crane’s claims and requested that a defense be provided pursuant to its
commercial general liability insurance policy (“the Policy”). The Policy
defined the extent of Cloutier’s coverage as follows:

We [(the Insurer)] will pay those sums that the insured
[(Cloutier)] becomes legally obligated to pay as damages
because of “bodily injury” or “property damage” to which this
insurance applies. We will have the right and duty to defend
the insured against any “suit” seeking those damages.
However, we will have no[ ] duty to defend the insured against
any “suit” seeking damages for “bodily injury” or “property
damage” to which the insurance does not apply.

The Policy exempted from coverage “bodily injury” or “property damage”
Cloutier was “obligated to pay . . . by reason of the assumption of liability
in a contract or agreement.” There were two exceptions to this
“contractual” exemption from coverage: (1) where Cloutier would have been
liable “in the absence of the contract or agreement” or (2) where Cloutier
“[a]ssumed” the liability “in a contract or agreement that is an ‘insured
contract’, provided the ‘bodily injury’ or ‘property damage’ occurs
subsequent to the execution of the contract or agreement.” Regarding the
second exception, the Policy defined an “insured contract” as:

That part of any other contract or agreement pertaining to
your business (including an indemnification of a municipality
in connection with work performed for a municipality) under
which you assume the tort liability of another party to pay for
“bodily injury” or “property damage” to a third person or
organization, provided the “bodily injury” or “property damage”

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 is caused, in whole or in part, by you or by those acting on your
behalf. Tort liability means a liability that would be imposed
by law in the absence of any contract or agreement.

(Emphasis added).

In requesting a defense, Cloutier asserted the Rental Agreement was an
“insured contract” falling under the exemption’s second exception. The
Insurer countered that it had no duty to defend or indemnify.

Left to its own devices, Cloutier proceeded with its defense. Ultimately,
Hunter Crane settled with Damiano for $100,000 and moved for summary
judgment against Cloutier based upon the Rental Agreement’s indemnity
clause. To protect its assets, Cloutier entered into a Coblentz1 settlement
agreement with Hunter Crane, wherein it stipulated to a $263,746.53
consent judgment—comprised of the $100,000 settlement with Damiano
plus $163,746.53 for Hunter Crane’s attorney’s fees and costs—and
assigned to Hunter Crane its claims against the Insurer. In exchange,
Hunter Crane agreed not to execute the judgment against Cloutier’s assets
or its principals.

Enforcement of the Coblentz Agreement

Hunter Crane, as Cloutier’s assignee, instituted the instant action by
filing a two-count complaint against the Insurer. The first count was for
breach of contract predicated on the Insurer’s wrongful failure to defend
or indemnify Cloutier. The second count sought a declaratory judgment,
which would establish, among other things, that the Insurer was required
to defend and indemnify Cloutier as a result of the third party action.

Duty to Defend and to Indemnify

Following discovery, Hunter Crane moved for partial summary
judgment on the issues of coverage and the Insurer’s duty to defend,
acknowledging that to “enforce” the Coblentz agreement it would need to
prove “(1) coverage, (2) a wrongful refusal to defend, and (3) that [Hunter
Crane’s] settlement with Cloutier was reasonable and made in good faith.”

Hunter Crane contended its third party complaint against Cloutier
alleged sufficient facts to trigger the Insurer’s duty to defend, in that it

1The term “Coblentz agreement” derives from the federal Fifth Circuit Court of
Appeals decision in Coblentz v. Am. Surety Co. of New York, 416 F.2d 1059 (5th
Cir. 1969) (applying Florida law).

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established (1) that “Cloutier assumed Hunter Crane’s liability for a bodily
injury claim arising from Cloutier’s use of Hunter Crane’s crane and
operator,” and (2) that the Rental Agreement “was in effect at the time of
Damiano’s accident.” Since an insurer’s duty to defend arises solely from
the allegations of the complaint, Hunter Crane asserted the Insurer
breached its contractual duty.

The Insurer responded with a cross-motion for summary judgment. It
argued, among other things, that Hunter Crane’s claims were barred by
the Policy’s contractual liability exclusion, since (1) Cloutier “would have
no liability in the absence of the” Rental Agreement and (2) the Rental
Agreement was not an “insured contract,” because it assumed tort liability
that would not have been “imposed by law in the absence of any contract
or agreement.”

The trial court granted Hunter Crane’s motion for partial summary
judgment, and denied that of the Insurer. The court ruled that the Insurer
“had a duty to defend and [wa]s now precluded from arguing coverage
issues other than as it may affect the reasonableness of the settlement of
Hunter Crane’s third party against Cloutier.”

Based on a ruling on a motion in limine, the trial court ordered the
parties to “prepare a Verdict Form allowing the jury to quantify a
reasonable settlement amount if it deems the amount of the underlying
consent judgment to be unreasonable.” At a subsequent pre-trial hearing,
the parties informed the trial court they had reached a stipulation “that a
reasonable amount of the judgment would have been $230,000,” so no
issues were left for a jury. Pursuant to the stipulation, the trial court
entered judgment for $230,000.2

The Coblentz Agreement

2Because we hold that the Insurer had no duty to defend or indemnify, we do not
address the issue of whether, in a Coblentz trial, the jury determines a reasonable
settlement amount if it finds that the underlying settlement amount was
unreasonable. Compare Shook v. Allstate Ins. Co., 498 So. 2d 498, 500 (Fla. 4th
DCA 1986); Steil v. Fla. Physicians’ Ins. Reciprocal, 448 So. 2d 589, 592 (Fla. 2d
DCA 1984); Griggs v. Bertram, 443 A.2d 163, 174 (N.J. 1982); Burlington Ins. Co.
v. Northland Ins. Co., 766 F. Supp. 2d 515, 528-30 (D.N J. 2011), with Parking
Concepts, Inc. v. Tenney, 83 P.3d 19, 26 (Ariz. 2004); Patrons Oxford Ins. Co. v.
Harris, 905 A.2d 819, 829 (Me. 2006); U.S. Auto. Ass’n. v. Hartford Ins. Co., 468
So. 2d 545 (Fla. 5th DCA 1985) (involving excess insurer that settled claims
against its insured after primary insurer failed to defend or indemnify).

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 A “Coblentz agreement” refers to a negotiated consent judgment
“entered into between an insured and a claimant in order to resolve a
lawsuit in which the insurer has denied coverage and declined to defend.”
Bradfield v. Mid-Continent Cas. Co., 15 F. Supp. 3d 1253, 1257 n.6 (M.D.
Fla. 2014) (citation omitted); Mid-Continent Cas. Co. v. Am. Pride Bldg. Co.,
LLC, 601 F.3d 1143, 1147 n.2 (11th Cir. 2010). Along with establishing
liability and fixing damages, the consent judgment allows the insured to
“assign[], to the injured party, any cause of action [it] had against the [its]
insurer” in exchange for a release from personal liability. Rodriguez v. Sec.
Nat’l Ins. Co., 138 So. 3d 520, 521 n.3 (Fla. 3d DCA 2014); Perera v. U.S.
Fid. & Guar. Co., 35 So. 3d 893, 903 (Fla. 2010). To thereafter enforce the
agreement, the assignee must bring an action against the insurer and
prove “(1) the damages are covered by the policy; (2) the insurer wrongfully
refuse[d] to defend; and (3) the settlement is reasonable and made in good
faith.” U.S. Fire Ins. Co. v. Hayden Bonded Storage Co., 930 So. 2d 686,
690-91 (Fla. 4th DCA 2006).

Duty to Defend and Coverage

While similar, the first two required showings—the existence of
coverage under the policy and the insurer’s duty to defend—are distinct in
that the duty to defend is broader than the issue of coverage. See Farrer
v. U.S. Fid. & Guar. Co., 809 So. 2d 85, 88 (Fla. 4th DCA 2002). The
insurer’s duty to defend arises solely from “‘the facts and legal theories
alleged in the pleadings and claims against the insured.’” Stephens v. Mid-
Continent Cas. Co., 749 F.3d 1318, 1323 (11th Cir. 2014) (quoting James
River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1275 (11th Cir.
2008)). The merits of the underlying suit are irrelevant. See Trailer Bridge,
Inc. v. Ill. Nat’l Ins. Co., 657 F.3d 1135, 1142 (11th Cir. 2011). “If the
allegations of the complaint leave any doubt as to the duty to defend, the
question must be resolved in favor of the insured.” Lime Tree Vill. Cmty.
Club Ass’n v. State Farm Gen. Ins. Co., 980 F.2d 1402, 1405 (11th Cir.
1993) (citations omitted).

Consequently, “an insurer is obligated to defend a claim even if it is
uncertain whether coverage exists under the policy.” Am. Pride Bldg. Co.,
LLC, 601 F.3d at 1149 (quoting First Am. Title Ins. Co. v. Nat’l Union Fire
Ins. Co., 695 So. 2d 475, 476 (Fla. 3d DCA 1997)). “Furthermore, once a
court finds that there is a duty to defend, the duty will continue ‘even
though it is ultimately determined that the alleged cause of action is
groundless and no liability is found within the policy provisions defining
coverage.’” Sinni v. Scottsdale Ins. Co., 676 F. Supp. 2d 1319, 1323 (M.D.
Fla. 2009) (quoting Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So.
2d 810, 814 (Fla. 1st DCA 1985)).

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 By contrast, coverage—and the accompanying duty to indemnify—“is
not determined by reference to the claimant’s complaint, but rather by
reference to the actual facts and circumstances of the injury.” Nat’l Trust
Ins. Co. v. Graham Bros. Constr. Co., 916 F. Supp. 2d 1244, 1253 (M.D.
Fla. 2013) (citing Underwriters at Lloyds London v. STD Enters., 395 F.
Supp. 2d 1142, 1147 (M.D. Fla. 2005)); see also State Farm Fire & Cas.
Co. v. CTC Dev. Corp., 720 So. 2d 1072, 1077 n.3 (Fla. 1998). “Therefore,
notwithstanding the allegations against the insured, if the facts show that
the insured’s liability stems from a claim for which no coverage is provided
under the policy, the insurer owes no duty of indemnification.” Travelers
Indem. Co. of Ill. v. Royal Oak Enters., Inc., 344 F. Supp. 2d 1358, 1366
(M.D. Fla. 2004). This premise

holds true even where . . . the insured’s liability was arrived
at through a settlement of the action against the insured,
because a settlement does not, by itself, obligate the insurer
to pay for a non-covered claim. Instead, the insurer’s duty to
indemnify a settlement obligation must be measured by the
facts “inherent in the settlement” or, in other words, the facts
extant at the time the settlement was reached.

Id. (footnote omitted); see also Northland Cas. Co. v. HBE Corp., 160 F.
Supp. 2d 1348, 1360 (M.D. Fla. 2001).

“Indeed, the mere entry of a consent judgment does not establish
coverage and an insurer’s unjustifiable failure to defend the underlying
action does not estop the insurer from raising coverage issues in a
subsequent suit to satisfy a consent judgment entered pursuant to a
Coblentz agreement.” Sinni, 676 F. Supp. 2d at 1324 (citation omitted).
What the consent judgment does do, however, is bar the insurer from
“rais[ing] any defense to the plaintiff’s claim . . . that should have been
raised in the underlying action.” Wrangen v. Pa. Lumbermans Mut. Ins.
Co., 593 F. Supp. 2d 1273, 1278 (S.D. Fla. 2008) (citing Gallagher v.
Dupont, 918 So. 2d 342, 347 (Fla. 5th DCA 2005); Independent Fire Ins.
Co. v. Paulekas, 633 So. 2d 1111, 1114 (Fla. 3d DCA 1994)). The notion
is that the settlement establishes the insured’s liability, but not the
insurer’s obligation of coverage. See Ahern v. Odyssey Re (London) Ltd.,
788 So. 2d 469, 472 (Fla. 4th DCA 2001); see also Columbia Cas. Co. v.
Hare, 156 So. 370, 374 (Fla. 1934).

There was no duty to defend because the Rental Agreement was not
an “insured contract” within the meaning of the Policy

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 Because an insurance policy is treated like any other contract, ordinary
contract principles govern its interpretation and construction. See
Fabricant v. Kemper Independence Ins. Co., 474 F. Supp. 2d 1328, 1330
(S.D. Fla. 2007). “Terms used in a policy should be read in light of the
skill and experience of ordinary people.” Gen. Star Indem. Co. v. W. Fla.
Vill. Inn, Inc., 874 So. 2d 26, 29 (Fla. 2d DCA 2004) (citation omitted).
“Where the policy language is plain and unambiguous, no special rule of
construction or interpretation applies, and the court should give the plain
language in the contract the meaning it clearly expresses.” N. Pointe Cas.
Ins. Co. v. M & S Tractor Servs., Inc., 62 So. 3d 1281, 1282 (Fla. 2d DCA
2011) (citation omitted). However, “exclusionary provisions which are
ambiguous or otherwise susceptible to more than one meaning must be
construed in favor of the insured, since it is the insurer who usually drafts
the policy.” State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245,
1248 (Fla. 1986).

An insurer’s duty to defend arises from the “eight corners” of the
complaint and the policy. See Acosta, Inc. v. Nat'l Union Fire Ins. Co., 39
So. 3d 565, 575 (Fla. 1st DCA 2010). The parties agree that the Rental
Agreement provided for Cloutier’s indemnification of Hunter Crane.
Hunter Crane argues—and the trial court agreed—that the Rental
Agreement’s indemnification clause constituted an “insured contract,”
thrusting it outside the policy’s contractual obligation exclusion. As
indicated above, the Policy’s definition of an “insured contract” is:

That part of any contract or agreement pertaining to your
business (including an indemnification of a municipality in
connection with work performed for a municipality) under
which you assume the tort liability of another party to pay for
“bodily injury” or “property damage” to a third person or
organization, provided the “bodily injury” or “property
damage” is caused, in whole or in part, by you or by those
acting on your behalf. Tort liability means a liability that
would be imposed by law in the absence of any contract or
agreement.

There has been debate regarding this provision’s reach. Three Florida
federal district courts have considered this identical provision, and each
has taken the narrow view that the policy extends coverage “by an ‘insured
contract’ or written agreement only for vicarious liability on behalf of” the
insured. United Rentals, Inc. v. Mid-Continent Cas. Co., 843 F. Supp. 2d
1309, 1314 (S.D. Fla. 2012); see also King Cole Condo. Ass’n v. Mid-
Continent Cas. Co., 21 F. Supp. 3d 1296, 1299 (S.D. Fla. 2014); Mid-

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Continent Cas. Co. v. Constr. Servs. & Consultants, Inc., No. 06-CV-80922,
2008 WL 896221, at *3 (S.D. Fla. Mar. 31, 2008).

For example, in United Rentals, a construction worker sustained fatal
injuries while operating a scissor lift at a construction site. 843 F.Supp.2d
at 1311. The scissor lift was leased by the work site contractor, General
Southern, from United Rentals through a rental agreement providing that
General Southern would indemnify United Rentals for any claims related
to the operation of the scissor lift. Id. Eventually, the deceased’s estate
filed suit against both United Rentals and General Southern, asserting
that each was liable for strict liability and negligence. Id. The complaint
did not attempt to hold United Rentals liable for General Southern’s acts
or omissions. Id.

In response to the action, United Rentals filed a cross-claim against
General Southern to collect under the indemnification provision. Id. at
1312. United Rentals also instituted a declaratory relief action seeking
coverage under General Southern’s primary and excess policies with Mid-
Continent Casualty Co. Id. Specifically, United Rentals alleged it was
entitled to coverage under the policy as an “additional insured” because
the Policy “extend[ed] coverage to a party to an ‘insured contract’ with
General Southern,” and the scissor lift rental agreement was such a
contract. Id.

The district court reasoned that for United Rentals to be covered under
the primary policy as an additional insured, the rental agreement between
United Rentals and General Southern needed to be an “insured contract”
as contemplated by the policy. Id. at 1313-14. Confronting the same
policy provision at issue in this case, the district court concluded that
under the “plain language” of the policy, “coverage is extended by an
‘insured contract’ or written agreement only for vicarious liability on behalf
of General Southern.” Id. at 1314. The court concluded that

the Estate’s State Court Complaint alleges claims against
United Rentals premised solely on theories of strict liability
and negligence arising from United Rental’s own acts or
omissions. Thus, even if the Rental Agreement were a valid
contract or agreement, the coverage sought by United Rentals
is not contemplated by the plain terms of the insurance
policies, which limit an “insured contract” or written
agreement—by which Mid–Continent would extend coverage
of the insurance policies—to agreements concerning vicarious
liability.

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Id. (internal citations omitted).

We do not believe the Policy definition of an “insured contract” should
be construed so narrowly. That provision limits the Insurer’s coverage to
situations involving “‘bodily injury . . . caused, in whole or in part, by
[Cloutier] or by those acting on [Cloutier’s] behalf.” (Emphasis added). By
not using the term “vicarious liability” and, instead, focusing on whether
the insured (Cloutier), or those working on its behalf, “caused” the injury,
the “language indicates that policy coverage is not limited solely to
vicarious liability, but that coverage extends to situations in which liability
is shared” by the insured/indemnitor and its indemnitee. Nor-Son, Inc. v.
W. Nat’l Mut. Ins. Co., No. A11-2016, 2012 WL 1658938, at *3 (Minn. Ct.
App. May 14, 2012); see also Steven G.M. Stein & Jean Gallo Wine, The
Illusions of Additional Insured Coverage, 34-Spring Constr. Law. 14, 23
(Spring 2014) (“The newer language clearly covers a broader range of
liability than that which is solely vicarious in nature.”).

Therefore, an indemnity agreement can be an “insured contract” under
the policy where the injury is caused by the indemnitee’s negligence, so
long as the named insured “caused” some part of the injuries or damages
or is otherwise vicariously liable. See generally Harleysville Ins. Co. v.
Physical Distribution Servs., Inc., 716 F.3d 451, 459-62 (8th Cir. 2013).

Even under this relaxed standard, the allegations in Hunter Crane’s
third party complaint failed to trigger the Insurer’s duty to defend Cloutier.
In arguing to the contrary, Hunter Crane places great emphasis on the fact
that the company and its crane operater worked on Cloutier’s “behalf.”
See, e.g., Webster’s Third New International Dictionary 198 (1993) (defining
“on behalf of” as “in the interest of,” “as the representative of,” and “for the
benefit of”). The problem with this view is that this loose characterization
of the Cloutier/Hunter Crane relationship does not implicate a legal theory
that Cloutier caused some part of the injury or damage.

Hunter Crane’s third party complaint did not assert a legal theory
under which Cloutier can be said to have “caused” the injury in whole or
in part. No allegation described how Cloutier contributed to causing the
accident. No allegation attempted to invoke the borrowed servant doctrine,
which dictates that “one who borrows and exercises control over the
servant or worker of another in effect assumes all liability for the activities
of the borrowed servant or worker.” Halifax Paving, Inc. v. Scott & Jobalia
Constr. Co., 565 So. 2d 1346, 1347 (Fla. 1990) (citation omitted and
emphasis added). “Under this common law doctrine, one employer can
‘lend’ its employee to another ‘special employer.’” Fossett v. Se. Toyota

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Distribs., LLC, 60 So. 3d 1155, 1157-58 (Fla. 1st DCA 2011).3 Nor did the
third party complaint cast Cloutier as the employer of an independent
contractor who actively participated in or interfered with the job to the
extent that it directly influenced the manner in which the work was
performed. See Sterling Fin. & Mgmt., Inc. v. Gitenis, 117 So. 3d 790, 794-
95 (Fla. 4th DCA 2013).

Hunter Crane’s third party complaint contained no allegation regarding
Cloutier’s power to “control” the crane operator’s actions. The pleading
identified no Cloutier employee who contributed to the accident. Rather,
the third party complaint stated merely that Cloutier had contracted with
Hunter Crane to lease the crane and its operator, that Hunter Crane
negligently injured Damiano and was sued as a result, and that Cloutier
did not honor the indemnity agreement. As a result, the allegations of
Hunter Crane’s third party complaint did not demonstrate that Damiano’s
injury was caused by either Cloutier or those working on Cloutier’s
“behalf,” so as to bring the Rental Agreement within the definition of an
“insured contract,” an exception to the exclusion from coverage. The eight
corners of the complaint and the policy do not provide a basis for the
Insurer’s duty to defend. Because the accident arose from a claim
excluded from coverage under the policy, the Insurer has no duty of
indemnification.

We therefore reverse and remand to the circuit court for the entry of a
final judgment in favor of the appellant.

WARNER and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

3 “A special employer qualifies as such where ‘(1) there was a contract for hire,
either express or implied, between the special employer and the employee; (2) the
work being done at the time of the injury was essentially that of the special
employer; and (3) the power to control the details of the work resided with the
special employer.’” Fossett, 60 So. 3d at 1158 (quoting St. Lucie Falls Prop.
Owners Ass’n v. Morelli, 956 So. 2d 1283, 1285 (Fla. 4th DCA 2007)).

Without meeting these prerequisites—and, in particular, showing the special
employer’s “control” over the leased employee—the doctrine creates a
presumption in favor of the continuance of the general employment. See Shelby
Mut. Ins. Co. v. Aetna Ins. Co., 246 So. 2d 98 (Fla. 1971); Gen. Crane, Inc. v.
McNeal, 744 So. 2d 1062, 1065 (Fla. 4th DCA 1999).

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