State Farm Mutual Automobile Insurance Company v. Del Campo et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 25-cv-22303-BLOOM/Elfenbein
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Plaintiff,
v.
ENRIQUE DEL CAMPO, and
DAVID J. NEPO,
Defendants.
_________________________/
ORDER ON MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Plaintiff State Farm Mutual Automobile Insurance
Company’s (“State Farm”) Motion for Summary Judgment (“Motion”), ECF No. [44]. The
Defendant David J. Nepo (“Nepo”) filed a Response in Opposition (“Response”), ECF No. [45].
State Farm filed a Reply in Support, ECF No. [47]. 	The Court has reviewed the Motion, the
supporting and opposing submissions, the record, and is otherwise fully advised. For the reasons
that follow, the Motion is granted.
I. 	BACKGROUND
In its Amended Complaint for Declaratory Judgment, ECF No. [27], State Farm seeks a
declaration whether it is obligated to defend and/or indemnify David J. Nepo (“Nepo”) with respect
to an underlying action filed by Enrique Del Campo (“Del Campo”) against Nepo in the Eleventh
Judicial Circuit in and for Miami-Dade County, Florida. ECF No. [27] ¶ 13. The underlying action
is styled Enrique Del Campo v. David J. Nepo, Case No. 2023-017080-CA-01. Id.
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A. Material Facts
The following facts are not in dispute unless otherwise noted: On March 22, 2023, Nepo left
home in his car and followed behind his wife’s car. ECF Nos. [43] ¶ 2; [45-1] ¶ 2. At a crosswalk
in front of the Porto Vita Villa Grande Club in Aventura, Nepo encountered Del Campo. ECF Nos.
[43] ¶ 2; [45-1] ¶ 2. Nepo observed Del Campo walk from the sidewalk to the vehicle his wife was
driving and strike the window of his wife’s car, at which point Nepo got out of his vehicle and
confronted Del Campo. ECF Nos. [43] ¶ 3; [45-1] ¶ 21. Nepo was carrying a concealed firearm in
his waistband and, according to Del Campo, yelled, “I’m going to shoot you, motherfucker. I’m
going to kill you. No one touches my wife’s car.” Nepo denies that he said this. ECF Nos. [43] ¶
4; [45-1] ¶ 4.
The Parties further disagree as to how the confrontation unfurled, although both agree that
Nepo kicked Del Campo in the chest. ECF No. [43] ¶ 5. Nepo contends he approached the exit of
Porto Vita Villa Condominium and honked his horn at which point, Nepo claims Del Campo
charged Nepo’s vehicle and struck the hood of his vehicle. ECF No. [45-1] ¶ 21. According to
Nepo, he then placed his vehicle in park and then exited. The vehicle lunged forward striking Del
Campo in the leg causing injury. ECF No. [45-1] ¶ 22. State Farm disputes that Nepo placed the
vehicle into park before the vehicle lunged forward and instead claims the video of the incident
clearly shows that Nepo braked, the vehicle lunged forward, and then Nepo placed the vehicle into
park and exited. ECF No. [46] ¶ 22. Nepo was arrested and charged with battery on an elderly
person to which he pled nolo contendere. ECF No. [43] ¶ 6; ECF No. [45-1] ¶ 6.
At the time of the incident, State Farm had issued an automobile insurance policy (“Policy”)
to Nepo and his wife in Florida. ECF No. [43] ¶ 7; ECF No. [45-1] ¶ 7. State Farm filed the Policy
as an exhibit, and its authenticity is not in dispute. ECF No. [41-1] at 10. The Policy’s insuring
clause states:
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Insuring Agreement
1. We will pay damages an insured becomes legally
liable to pay because of:
a. bodily injury to others; and
b. damage to property
caused by an accident that involves a vehicle for which that
insured is provided Liability Coverage by this policy.
ECF No. [41-1] at 10.
The Policy also provides:
THERE IS NO COVERAGE FOR AN INSURED
1. 	WHO INTENTIONALLY CAUSES BODILY
INJURY OR DAMAGE TO PROPERTY;
Id at 8.
Del Campo sued Nepo in the Eleventh Judicial Circuit in and for Miami Dade County. ECF
No. [43] ¶ 10; ECF No. [45-1] ¶ 10. Del Campo’s amended complaint in the underlying action
alleges that after Nepo’s wife drove away, Nepo “aggressively increased the speed of his vehicle
and lunged his car toward” Del Campo. ECF No. [27-3] ¶ 10. The amended complaint alleges,
“[f]orcefully braking, Defendant Nepo then came to an abrupt stop just a few inches from hitting
[Del Campo] with the Mini Cooper”, at which point Del Campo “put his hands on the hood of the
Mini-Cooper to demonstrate and/or to attempt to shield or brace himself from any impact.” Id ¶
11. “Despite having already stopped, within seconds, the Mini-Cooper moved forward and struck
[Del Campo] in the knee area, which further caused [Del Campo] to twist his ankle.” Id. ¶ 12. The
amended complaint alleges that Nepo appeared to reach for a weapon, verbally threatened to shoot
and kill Del Campo, got out of the car, “assumed an attack position and did a high karate kick,
hitting [Del Campo] in chest with his shoe with significant force[.]” Id. ¶ 16. After the amended
complaint was filed in the underlying action, State Farm filed this action seeking a declaration that
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the Policy issued to Nepo does not require State Farm to defend or indemnify him against Del
Campo’s amended complaint in the underlying action. ECF No. [43] ¶ 20; ECF No. [45-1] ¶ 20.
State Farm now seeks summary judgment, arguing the Policy does not trigger a duty to defend
because the underlying amended complaint does not allege a covered accident. ECF No. [42] at 5.
State Farm argues that because it has no duty to defend Nepo, it also has no duty to indemnify him
with respect to any liability he might have for injuries he caused to Del Campo. Id. at 18. Nepo
responds that he has established State Farm has a duty to defend and the state court pleadings
trigger coverage under the Policy. ECF No. [45] at 4-6. Nepo further argues that the intentional
injury exclusion does not eliminate State Farm’s duty to defend or indemnify. Id. at 12.
II. 	LEGAL STANDARD
A. Summary Judgment
A court may grant a motion for summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The parties may support their positions by citations to materials in the record,
including, among other things, depositions, documents, affidavits, or declarations. See Fed. R. Civ.
P. 56(c). An issue is genuine if “a reasonable trier of fact could return judgment for the non-moving
party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it
“might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 477 U.S.
at 247-48).
A court views the facts in the light most favorable to the non-moving party, draws “all
reasonable inferences in favor of the nonmovant and may not weigh evidence or make credibility
determinations, which ‘are jury functions, not those of a judge.’” Lewis v. City of Union City, Ga.,
934 F.3d 1169, 1179 (11th Cir. 2019) (quoting Feliciano v. City of Mia. Beach, 707 F.3d 1244,
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1252 (11th Cir. 2013)); see also Crocker v. Beatty, 886 F.3d 1132, 1134 (11th Cir. 2018) (“[W]e
accept [the non-movant's] version of the facts as true and draw all reasonable inferences in the
light most favorable to him as the non-movant.”). “The mere existence of a scintilla of evidence
in support of the [non-moving party's] position will be insufficient; there must be evidence on
which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. “If
more than one inference could be construed from the facts by a reasonable fact finder, and that
inference introduces a genuine issue of material fact, then the district court should not grant
summary judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).
The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130,
1140 (11th Cir. 2007) (quoting Carlin Comm'n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1356
(11th Cir. 1986)).
Initially, the moving party bears the “responsibility of informing the ... court of the basis for
its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
see also Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant satisfies this burden,
“the nonmoving party ‘must do more than simply show that there is some metaphysical doubt as
to the material facts.’” Ray v. Equifax Info. Servs., LLC, 327 F. App'x 819, 825 (11th Cir. 2009)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead,
“the non-moving party ‘must make a sufficient showing on each essential element of the case for
which he has the burden of proof.’” Id. (quoting Celotex Corp., 477 U.S. at 322). The non-moving
party must produce evidence, going beyond the pleadings, and by its own affidavits, or by
depositions, answers to interrogatories, and admissions on file, designating specific facts to suggest
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that a reasonable jury could find in the non-moving party's favor. Shiver, 549 F.3d at 1343. Yet,
even where a non-movant neglects to submit any alleged material facts in dispute, a court must
still be satisfied that the evidence in the record supports the uncontroverted material facts proposed
by the movant before granting summary judgment. Reese v. Herbert, 527 F.3d 1253, 1268-69,
1272 (11th Cir. 2008); United States v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave.,
Mia., Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004) *1319 (“One Piece of Real Prop.”). Indeed,
even “where the parties agree on the basic facts, but disagree about the factual inferences that
should be drawn from those facts,” summary judgment may be inappropriate. Warrior Tombigbee
Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).
In resolving the issues presented under Rule 56, “the court may not weigh conflicting evidence
to resolve disputed factual issues; if a genuine dispute is found, summary judgment must be
denied.” Carlin Commc'n, Inc., 802 F.2d at 1356. Moreover, summary judgment is inappropriate
where the Court would be required to weigh conflicting renditions of material fact or determine
witness credibility. See Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993);
see also Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“It is not the court's
role to weigh conflicting evidence or to make credibility determinations; the non-movant's
evidence is to be accepted for purposes of summary judgment.”); Strickland v. Norfolk S. Ry. Co.,
692 F.3d 1151, 1154 (11th Cir. 2012) (“Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those of a judge,
whether he [or she] is ruling on a motion for summary judgment or for a directed verdict.” (quoting
Anderson, 477 U.S. at 255)); see also Ramirez v. Nicholas, No. 13-60820-CIV, 2013 WL 5596114,
at *4 (S.D. Fla. Oct. 11, 2013) (“The Court may not make the credibility determinations needed to
resolve this conflict; only the jury may do so.”).
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B. Duty to Defend
“Under Florida law, the general rule is that an insurance company's duty to defend an insured
is determined solely from the allegations in the complaint against the insured, not by the true facts
of the cause of action against the insured, the insured's version of the facts or the insured's
defenses.” State Farm Fire & Cas. Co. v. Steinberg, 393 F.3d 1226, 1230 (11th Cir. 2004) (citing
Amerisure Ins. Co. v. Gold Coast Marine Distrib., Inc., 771 So. 2d 579, 580-81 (Fla. 4th DCA
2000)). This holds true regardless of whether the allegations are later revealed to be false or even
if they seem fraudulent on their face. Kopelowitz v. Home Ins. Co., 977 F. Supp. 1179, 1185 (S.D.
Fla. 1997) (citing Smith v. Gen. Accident Ins. Co. of Am., 641 So. 2d 123, 123 (Fla. 4th DCA 1994)
and St. Paul Fire & Marine Ins. v. Icard, 196 So. 2d 219 (Fla. 2d DCA 1967) ); see also Diamond
State, 172 F. Supp. 3d at 1335 (“The actual facts of the situation are not relevant, such that ‘the
insurer must defend even if facts alleged are actually untrue or legal theories unsound.’”) (quoting
Lawyers Title Ins. Corp. v. JDC (America) Corp., 52 F.3d 1575, 1580 (11th Cir. 1995)).
Courts in Florida will typically analyze the duty to defend by comparing the coverage afforded
under the policy to the allegations in the underlying complaint. See Feldman v. Imperium Ins. Co.,
No. 8:14-cv-1637-T-30EAJ, 2015 WL 5854153, at *7 (M.D. Fla. Oct. 5, 2015). Upon a review of
the underlying complaint, if the allegations state facts that bring the claim within the policy's
coverage, the insurer is required to defend the insured regardless of the claim's merits. State Farm,
393 F.3d at 1230. All doubts relating to the duty to defend must be resolved in the insured's favor.
Id. When the underlying complaint “contains allegations partially within and partially outside the
scope of coverage, the insurance carrier is required to defend the entire suit.” Tropical Park, Inc.
v. U.S. Fid. & Guaranty Co., 357 So. 2d 253, 256 (Fla. 3d DCA 1978); see also McCreary v. Fla.
Residential Prop. & Cas. Joint Underwriting Assoc., 758 So. 2d 692, 695 (Fla. 4th DCA 2000)
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(“[A]n insurer must defend a lawsuit against its insured if the underlying complaint, when fairly
read, alleges facts which create potential coverage under the policy.”).
III. 	DISCUSSION
A. Duty to Defend
State Farm points out the Policy specifies it only covers injuries “caused by an accident”. ECF
No. [44] at 10. Moreover, State Farm avers that Nepo’s actions are excluded by the Policy’s
intentional-acts exclusion which states:
THERE IS NO COVERAGE FOR AN INSURED
1. 	WHO INTENTIONALLY CAUSES BODILY
INJURY OR DAMAGE TO PROPERTY;
ECF No. [41-1] at 10.
State Farm argues the injuries sustained by Del Campo were not caused by an “accident” and
the allegations in the amended complaint describe an intentional act. ECF No. [44] at 10.
Specifically, State Farm contends that there is “nothing even arguably accidental about Nepo
getting out of his car and karate-kicking Del Campo…” Id. Moreover, State Farm avers that the
amended complaint in the underlying action was “careful not to go so far as to allege that the
second lunge was unintentional.” Id. at 11. State Farm reasons that the amended complaint alleges
only that Nepo “testified that the movement of the vehicle that caused the Mini Cooper to strike
[Del Campo] was not purposeful and was the result of the car being placed into ‘[p]ark’”. Id. at 11
(citing ECF No. [27-3] ¶ 38). State Farm argues that such language “…is nothing more than an
allegation that Nepo gave testimony mischaracterizing the intentional actions otherwise alleged in
Del Campo’s amended complaint.” Id. As such, State Farm argues that even if Nepo’s testimony
is taken at face value, an issue of fact on summary cannot be created by self-serving testimony that
blatantly contradicts what is shown in a video recording whose authenticity has not been
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challenged. Id. State Farm contends the video shows that the “second lunge” shows Nepo’s vehicle
to clearly accelerate as opposed to rocking in place like a vehicle does when placed into “park”.
Id.
State Farm contends that even if the Court accepts Nepo parked the vehicle prior to it striking
Del Campo, that negligence during an assault-in-progress does not convert an intentional criminal
act into an “accident”. Id. at 12 State Farm cites to Hartford Fire Ins. Co. v. Spreen, 343 So. 2d
649, 651 (Fla. 3d DCA 1977) for support. In Spreen, the insured committed an assault and battery
upon an individual who made a crude and insulting remark about the insured’s wife. The insured
argued that the incident should be covered under his homeowner’s insurance policy because while
he intended to hit the man who insulted his wife, he did not foresee the extent of the injuries he
caused, and therefore, did not intend them. Spreen, 343 So. 2d at 651. The court determined that
the sole issue in determining coverage was whether the insured intended to inflict any harm. To
do otherwise, the Court reasoned, would be “a subtle method of introducing the tort rule of
foreseeability into insurance contract cases through the back door”, which has been repeatedly
rejected by Florida courts. Id. (citing Gulf Life Insurance Co. v. Nash, 97 So.2d 4 (Fla. 1957);
Grange Mutual Casualty Co. v. Thomas, 301 So.2d 158 (Fla. 2d DCA 1974); Phoenix Ins. Co. v.
Helton, 298 So.2d 177 (Fla.1st DCA 1974); Cloud v. Shelby Mutual Insurance Co., 248 So.2d 217
(Fla.3d D.C.A.1971); Harvey v. St. Paul Western Insurance Cos., 166 So.2d 822 (Fla. 3d DCA
1964)).
Nepo responds that he has established a duty to defend. ECF No. [45] at 4. He argues that, in
light of the amended complaint’s allegations of negligence due to the insured vehicle striking his
leg and injuring his ankle, he has asserted a claim covered under the terms of the Policy. Id. at 6.
Nepo further argues that the “accident” clearly involved the insured vehicle and that, by the terms
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of the Policy, Nepo’s action need not “arise” out of the use of the vehicle but merely “involve” the
vehicle. Id. at 9. Moreover, Nepo points out that the Policy does not define the term “accident”
and requires a more liberal definition of the term. Id. at 7. Nepo relies on State Farm Fire & Cas.
Co. v. CTC Dev. Corp., 720 So. 2d 1072 (Fla. 1998), in which the Supreme Court of Florida
determined that where the term “accident” in a liability policy is not defined, the term encompasses
not only accidental events, but also injuries or damage neither expected nor intended from the
standpoint of the insured. 720 So. 2d at 1076. Nepo contends that to exclude coverage under
intentional acts, State Farm must establish that Nepo specifically intended to cause Del Campo’s
alleged injuries. Id. at 14. Nepo avers that the amended complaint alleges Nepo was negligent and
therefore, the intentional-acts exclusion is inapplicable. Id.
i. 	Whether the incident was an “accident” or is excluded by the Policy’s
intentional-acts exclusion
As State Farm points out, the Policy only covers injuries “caused by an accident.” ECF No.
[41-1] at 10. However, “accident” is not defined in the Policy. Under Florida law, “…where the
term ‘accident’ in a liability policy is not defined, the term, being susceptible to varying
interpretations, encompasses not only ‘accidental events,’ but also injuries or damage neither
expected nor intended from the standpoint of the insured.” CTC Dev. Corp., 720 So. 2d at 1076.
To determine whether an act was an accident or intentional, the Court must look to the specific
facts pled in the amended complaint. Though two of the counts are labeled as negligence-based
causes of action, “[t]he theories advanced and labels used in a complaint are subordinate to the
facts alleged for the purpose of determining the duty to defend.” Trailer Bridge, Inc. v. Illinois
Nat. Ins. Co., 657 F.3d 1135, 1145 (11th Cir. 2011). In count III of the amended complaint
asserting negligence, Del Campo alleges:
37. As Plaintiff was crossing the exit lane of the Porto Vita condominium and
Defendant Nepo having come to an abrupt stop just a few inches before hitting
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Plaintiff with the Mini Cooper, Defendant began yelling at Plaintiff from the inside
of the vehicle. Plaintiff put his hands on the hood of the Mini-Cooper to
demonstrate his presence and to attempted to shield or brace himself from any
impact. Within seconds, the Mini-Cooper moved forward and struck Plaintiff in the
knee area, which further caused Plaintiff to twist his ankle.
38. Defendant Nepo has testified that the movement of the vehicle that caused the
Mini Cooper to strike Plaintiff in his lower extremities was not purposeful and was
the result of the car being placed into “Park.”
39. By stopping the vehicle so close to Plaintiff, Defendant Nepo breached his duty
of reasonable care to the Plaintiff. Moreover, it was reasonably foreseeable that the
car would either strike Plaintiff at the time of Defendant’s braking or in the
immediate aftermath of stopping the vehicle so close to Plaintiff’s body – as it did
when, according to Defendant, he placed the vehicle into “Park” and the car moved
forward the remaining minimal distance between the Mini Cooper and Plaintiff and
struck Plaintiff.
ECF No. [27-3] ¶¶ 37-39.
Here, the allegations within count III support a claim for negligence rather than an intentional
act. Specifically, Del Campo alleges Nepo was negligent in stopping the vehicle so close to him
and supports this by referring to Nepo’s testimony that the movement of the vehicle that caused
the Mini Cooper to strike Del Campo was “not purposeful”. Thus, under CTC Dev. Corp., Nepo’s
assertion that the strike was “not purposeful” can be construed to mean that, from the standpoint
of the insured, he neither expected or intended the impact or resulting injuries suffered by Del
Campo when the vehicle struck him. Moreover, “[i]f the allegations of the complaint leave any
doubt regarding the duty to defend, the question must be resolved in favor of the insured requiring
the insurer to defend.” Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So. 2d 810, 814 (Fla.
1st DCA 1985). Though State Farm argues the amended complaint does not adopt the “not
purposeful” testimony of Nepo, the allegation forms the basis for the claim that Nepo breached his
duty of reasonable care to Del Campo by stopping the vehicle so closely to him.
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State Farm contends that even if Nepo’s testimony was taken at face value, such testimony is
contradicted by the uncontested video evidence. ECF No. [44] at 11. State Farm argues the video
recordings provided in support of its Motion show that Nepo’s testimony is inconsistent with what
happened. Id. State Farm contends the videos show Nepo’s vehicle clearly accelerates, as opposed
to “rocking in place like a vehicle does when placed into “[p]ark”. Id. at 12.
However, pursuant to Florida law, “the determination of an insurer's duty to defend falls under
the so-called ‘eight corners rule,’ the name of which refers to the four corners of the insurance
policy and the four corners of the underlying complaint.” Addison Ins. Co. v. 4000 Island
Boulevard Condo. Assoc. Inc., 721 F. App'x 847, 854 (11th Cir. 2017) (citing Mid-Continent Cas.
Co. v. Royal Crane, LLC, 169 So. 3d 174, 182 (Fla. 4th DCA 2015)). When adjudicating whether
the insurer has a duty to defend, the Court only considers the facts “from the allegations in the
complaint against the insured, not by the true facts of the cause of action against the insured, the
insured's version of the facts or the insured's defenses.” State Farm Fire and Cas. Co. v. Steinberg,
393 F.3d 1226, 1230 (11th Cir. 2004) (citing Amerisure Ins. Co. v. Gold Coast Marine
Distributors, Inc., 771 So. 2d 579, 580–81 (Fla. 4th DCA 2000)).
Only in “exceptional cases” may the court consider extrinsic evidence beyond the eight corners
rule to determine if a duty to defend exists. Mt. Hawley Ins. Co. v. H&M Builders, LLC, 711 F.
Supp. 3d 1373, 1379 (S.D. Fla. 2024) (citing Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318,
1323 (11th Cir. 2014)). First, a court may consider extrinsic facts “if those facts are undisputed,
and, had they been pled in the complaint, they clearly would have placed the claims outside the
scope of coverage.” Stephens, 749 F.3d at 1323 (citing Nateman v. Hartford Cas. Ins. Co., 544
So.2d 1026 (Fla. 3d DCA 1989)). Second, a court may consider extrinsic evidence “where an
insurer’s claim that there is no duty to defend is based on factual issues that would not normally
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be alleged in the complaint.” Higgins v. State Farm Fire and Cas. Co., 894 So. 2d 5, 10 n.2 (Fla.
2004).
State Farm does not argue that either the first or second circumstances for considering extrinsic
facts exists in this case, and instead relies upon Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th
Cir. 2013) and Shaw v. City of Selma, 241 F. Supp. 3d 1253, 1267 n.10 (S.D. Ala. 2017) for its
assertion that the video can be considered. However, neither of these cases concern an insurer’s
duty to defend and thus are not applicable. Moreover, even if the Court could consider the video,
it cannot determine from the video alone whether Nepo’s vehicle was placed into “park” prior to
moving forward and striking del Campo.
State Farm contends that even if Nepo placed his vehicle into “park”, Nepo’s negligence during
an assault in progress does not convert an intentional criminal act into an accident, relying on
Spreen. However, Spreen is distinguishable as the intentional act that took place and resulting
harm were one and the same. There, the insured intended to punch the victim but claimed he did
not intend to cause the severity of the harm resulting from the punch. 343 So. 2d at 650. Here, in
contrast, there is no allegation in the amended complaint that Nepo intended to strike Del Campo
with his vehicle. To the contrary, the allegations in the amended complaint assert that Nepo came
to a stop before the vehicle moved forward.
State Farm also attempts to analogize this case to Landis v. Allstate Ins. Co., 546 So. 2d 1051
(Fla. 1989). In Landis, the Supreme Court of Florida held that, in a child molestation action, it is
“inherent in the logic of our system that ‘some form of harm inheres in and inevitably flows from
the proscribed behavior.’” 546 So. 2d at 1053. State Farm argues that aggressively lunging a
vehicle toward a pedestrian is an act from which some harm inevitably flows. ECF No. [47] at 9.
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However, State Farm fails to cite to any case to support its claim that Landis has been extended
outside of the context of child molestation cases.
For the foregoing reasons, the Court finds that State Farm has a duty to defend in the amended
complaint since Del Campo has asserted a viable negligence claim. Moreover, the Eleventh
Circuit, applying Florida law, determined that "if the complaint alleges covered and non-covered
claims, the insurer's duty to defend is triggered and obligates the insurer to defend the entire suit.”
Travelers Indem. Co. of Ill. v. Royal Oak Enterprises, Inc., 429 F. Supp. 2d 1265, 1272 (M.D. Fla.
2004), aff'd, 171 	Fed. 	Appx. 	831 	(11th 	Cir. 	2006) 	(citing
Trizec Prop., Inc. v. Biltmore Constr. Co., 767 F.2d 810, 811 (11th Cir. 1985)). As such, the Court
need not address the other counts in the amended complaint. Moreover, the Eleventh Circuit has
established that "the duty to indemnify is dependent upon the entry of a final judgment, settlement,
or a final resolution of the underlying claims." J.B.D. Const., Inc. v. Mid-Continent Cas. Co., 571
Fed. Appx. 918, 927 (11th Cir. 2014). As such, it would be premature for this Court to rule on
State Farm’s duty to indemnify. Therefore, the case will be administratively closed until there is a
final judgment, settlement, or a final resolution in the underlying action.
IV. 	CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. 	State Farm’s Motion for Summary Judgment, ECF No. [44], is DENIED.
2. 	The Court DECLARES that:
a. 	State Farm is obligated to defend David J. Nepo with respect to the underlying
action that Enrique del Campo filed against him in the Eleventh Judicial Circuit in
and for Miami-Dade County, Florida, Case No. 2023-017080-CA-01.
3. 	The Court will issue its final judgment in a separate order.
4. 	The Clerk is directed to ADMINISTRATIVELY CLOSE this case.
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Case No. 25-cv-22303-BLOOM/Elfenbein
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5. 	To the extent not otherwise disposed of, any scheduled hearings, court appearances,
and trial are CANCELED, all pending motions are denied as MOOT and all deadlines
are TERMINATED.
DONE AND ORDERED in Chambers at Miami, Florida, on April 13, 2026.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc: 	counsel of record
Case 1:25-cv-22303-BB Document 53 Entered on FLSD Docket 04/14/2026 Page 15 of 15