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Chestnut Assocs. v. Assurance Co. of Am.

United States District Court for the Middle District of Florida, Tampa Division

April 29, 2014, Decided; April 29, 2014, Filed

CASE NO. 8:13-CV-1755-T-17TBM

Opinion

 [*1206]  ORDER

This cause is before the Court on:

 [*1207] 

Dkt. 21 Motion for Summary Judgment

Dkt. 28 Response

This case is an action for declaratory relief. Plaintiff Chestnut Associates, Inc. seeks a declaration of Plaintiff's rights and duties under the insurance policy issued to Plaintiff, the costs of suit, and other appropriate relief. Plaintiffs allege that Defendants refused to defend Plaintiff in a lawsuit filed against Plaintiff in Pasco County Circuit Court, Brian Jansen and Cheryl Jansen v. Chestnut Associates, Inc. d/b/a PINCH-A-PENNY, a Florida corporation, Case No. 51-2011-CA-1952-WS. The Complaint in that case includes two counts of intentional infliction of emotional distress, for which Brian  [**2] Jansen and Cheryl Jansen seek a judgment for damages. Plaintiff has attached Defendants' response to Plaintiff's claim, in which Defendants deny the duty to defend and the duty to indemnify. (Dkt. 2-1, pp. 55-56).

Defendants Assurance Company of America and Maryland Casualty Company ("Assurance") move for entry of summary judgment, seeking a declaration that Assurance has no obligation to defend or indemnify Plaintiff for the above lawsuit for intentional infliction of emotional distress.

In the Response to Order to Show Cause (Dkt. 26), Plaintiff states this case is moot, due to non-prosecution of the underlying complaint. The Court has examined the court records of Pasco County Circuit Court, and notes that the underlying case is listed as an open case. The case has not been dismissed. The Court will therefore rule on the pending motions in this case.

I. Standard of Review

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17 F. Supp. 3d 1203 *; 2014 U.S. Dist. LEXIS 59278 **; 2014 WL 1711579

CHESTNUT ASSOCIATES, INC., Plaintiff, v. ASSURANCE COMPANY OF AMERICA, ZURICH d/b/a ZURICH SMALL BUSINESS and MARYLAND CASUALTY COMPANY, Defendants.

CORE TERMS

insured, pool, allegations, coverage, service technician, argues, property damage, damages, insurance policy, bodily injury, occurrence, duty to defend, wrongful act, ambiguous, intentional infliction of emotional distress, allegation of the complaint, intentional act, pollutant, summary judgment, loss of use, no duty, pollution exclusion, emotional distress, matter of law, performing, standpoint, indemnify