[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 18, 2006
No. 06-11504
THOMAS K. KAHN
Non-Argument Calendar
CLERK
D. C. Docket No. 03-62136-CV-PAS
FIREMAN’S FUND INSURANCE COMPANY,
Plaintiff-Cross
Claimant-Counter
Defendant-Cross
Defendant-Appellant,
versus
TWIN CITY FIRE INSURANCE,
Defendant-Counter
Claimant-Cross
Claimant-Appellee,
LIBERTY MUTUAL INSURANCE COMPANY,
J.C. PENNEY, INC.,
Defendant-Appellees.
__________________________________________________________________
_________________
D.C. Docket No. 03-62143-CV-PAS
________________
FIREMAN’S FUND INSURANCE COMPANY,
Plaintiff-Counter
Defendant-Appellant,
versus
J.C. PENNEY CORPORATION, INC.,
LIBERTY MUTUAL INSURANCE COMPANY,
TWIN CITY FIRE INSURANCE CO.,
Defendants-Counter
Claimants-Appellees.
Appeal from the United States District Court
for the Southern District of Florida
(October 18, 2006)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
This appeal involves a question of insurance coverage under Florida law. In
an order entered on September 12, 2005, the district court granted Twin City Fire
Insurance Company’s motion for summary judgment and denied Fireman’s Fund’s
cross-motion for summary judgment. Specifically, the district court determined
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that the Fireman’s Fund’s policies covered the J.C. Penney settlement in the
underlying action.
The underlying action is a wrongful death suit brought by the estate of
Jessica Enriquez, a young child who was killed when a shelving unit manufactured
by Trendlines Home Fashions, Inc., fell on her at a J.C. Penney outlet store. The
district court determined that Fireman’s Fund was contractually required to
contribute funds toward a settlement that Liberty Mutual and Twin City reached in
the underlying Enriquez lawsuit.
Our review of a district court’s grant of summary judgment is plenary.
Polkey v. Transtecs Corp., 404 F.3d 1264, 1267 (11th Cir. 2005).
In this appeal, Fireman’s Fund contends that the non-product liability claims
against J.C. Penney do not fall within the scope of coverage granted by its vendors
endorsement. Moreover, Fireman’s Fund insists, if the claims are found to be
within the scope of the grant of coverage, they fall within a specific policy
exclusion.
The vendors endorsement written by Fireman’s Fund granted coverage to
J.C. Penney for “bodily injury . . . arising out of [Trendline’s] products which are
distributed or sold in the regular course of [Penney’s] business. . . .” (R-70-12.)
The recent case of Taurus Holdings, Inc. v. United States Fidelity & Guaranty
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Co., 913 So.2d 528 (Fla. 2005), is dispositive of this issue. In that case, the
Florida Supreme Court held:
Based on the analysis above, we agree with the majority of states and
conclude that the phrase “arising out of your product” in the products-
completed operations hazard exclusions at issue is unambiguous.
“The term ‘arising out of’ is broader in meaning than the term ‘caused
by’ and means ‘originating from,’ ‘having its origin in,’ ‘growing out
of,’ ‘flowing from,’ ‘incident to’ or ‘having a connection with.’”
Hagan, 675 So.2d at 965. As we implied in Race, 542 So.2d at 351,
this requires more than a mere coincidence between the conduct (or,
in this case, the product) and the injury. It requires “some causal
connection, or relationship.” Heritage Mut. Ins. Co., 657 So.2d at
927. But it does not require proximate cause. Race, 542 So.2d at
348.
Id. at 539-40.
Since there is no dispute that the underlying injury was inflicted by a
Trendline product that was for sale by Penney, we conclude that the underlying
bodily injury falls within this broad grant of coverage written by Fireman’s Fund.
We also conclude that because Fireman’s Fund failed to carry its burden of
clearly excluding from coverage injuries arising out of products that are
negligently assembled by the vendor for display on the sales floor, the district
court correctly held that no exclusion bars coverage in this case.
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For the foregoing reasons, we affirm the district court’s grant of summary
judgment in favor of Twin City Fire Insurance Company and its denial of
Fireman’s Fund’s motion for summary judgment.
AFFIRMED.
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