Alicea Enters., Inc. v. Nationwide Ins. Co. of Am., Inc.
Alicea Enters., Inc. v. Nationwide Ins. Co. of Am., Inc.
Opinion of the Court
*801Nationwide Insurance Company of America
Nationwide filed a complaint for declaratory relief, requesting a decree from the trial court that it neither had a duty to defend nor a duty to indemnify the Pharmacy in the underlying lawsuit. Less than four months after it filed for this declaratory relief, Nationwide filed a motion for summary judgment, asserting that the policy it issued to the Pharmacy expressly excluded coverage for "professional services." Nationwide contended that "100%" of Ms. Lee's allegations in the underlying lawsuit are excluded from coverage because they arose out of the professional "[s]ervice, treatment, advice or instruction in the practice of pharmacy."
The trial court denied Nationwide's motion for summary judgment as to its duty to defend the Pharmacy in Ms. Lee's underlying lawsuit. It reasoned that Ms. Lee's underlying complaint "contains allegations that potentially could be deemed as unrelated to professional services and potentially could bring the Tort action at this time within the coverage provided by the Insurance Policy." The trial court, however, went on to grant Nationwide's motion for summary judgment on its duty to indemnify the Pharmacy from any damages awarded to Ms. Lee in her underlying lawsuit. The trial court reasoned that "there could never be a set of circumstances where there would be a duty to indemnify as a matter of law." The Pharmacy appeals the grant of summary judgment to Nationwide on the duty to indemnify, and Nationwide cross-appeals the denial of its motion for summary judgment on the duty to defend.
After de novo review and the benefit of oral argument, we affirm the trial court's denial of Nationwide's motion for summary judgment on the duty to defend the Pharmacy in the underlying lawsuit. We are in lockstep with the trial court's reasoning that Ms. Lee's allegations could potentially "be deemed as unrelated to professional services and potentially could bring the Tort action at this time within the coverage provided by the Insurance *802Policy." Accordingly, because Ms. Lee's underlying complaint alleged facts that fairly and potentially bring the suit within the policy's coverage, we affirm the trial court's denial of Nationwide's motion for summary judgment on the duty to defend. See Jones v. Fla. Ins. Guar. Ass'n,
We disagree with the trial court's decision to grant summary judgment to Nationwide on its duty to indemnify the Pharmacy from any damages attributable to it in Ms. Lee's underlying lawsuit. An insurer's duty to indemnify is "determined by analyzing the policy coverage in light of the actual facts in the underlying case." Diamond State Ins. Co. v. Boys' Home Ass'n,
Whether a professional service has, or has not, been rendered is a fact-intensive analysis. See, e.g., Aerothrust Corp. v. Granada Ins. Co.,
Thus, at the summary judgment stage, in circumstances where there has not been thorough discovery to flesh out the relevant facts, the trial court is in a poor position to determine whether the facts *803alleged in the complaint are true or the legal theories unsound so as to make a decision on whether an insurer has a duty to indemnify under the policy. See Khatib,
Here, there appears to have been little discovery conducted. Only one deposition was before the trial court for its review-the deposition of a pharmacy technician, Joseph Stahel. Notably absent was the deposition testimony of Andrew, the individual who Ms. Lee alleged to have been the mastermind in a scheme leading to her alleged injuries. Also absent was any testimony from the pharmacists themselves. Furthermore, there was no bench trial on Nationwide's complaint for declaratory relief to present evidence as to whether the purported acts of the Pharmacy and its employees here fell within the professional negligence exclusion of the policy. Nor has there been a trial on Ms. Lee's underlying lawsuit.
We are therefore left with Mr. Stahel's deposition testimony. We know from his deposition that he provided Andrew an incomplete prescription label. This incomplete label did not contain the name of any drug. Mr. Stahel also testified that Ms. Lee was not a customer of the pharmacy. We also know that Mr. Stahel had never given out an incomplete prescription label before and did not recall whether he had asked the on-duty pharmacist for permission to give this incomplete prescription label to Andrew. Lastly, he testified that, to his knowledge, the Pharmacy did not dispense a drug with that incomplete label.
Here, we conclude that Nationwide did not meet its heavy summary judgment burden. See Fla. R. Civ. P. 1.510(c) ; LoBello,
Because the record reflects the existence of genuine issues of material fact as to whether the Pharmacy or its employees were ordinarily or professionally negligent, we reverse and remand for further proceedings on Nationwide's duty to indemnify. See Khatib,
Affirmed in part; reversed in part; remanded.
LaROSE, C.J., and NORTHCUTT, J., concur.
Joseph Stahel, a pharmacy technician employed by Sunlake Pharmacy and a defendant in the underlying action, and Remee Jo Lee, the plaintiff in the underlying action, are also parties to this appeal. We will refer to these appellees collectively as "Nationwide."
Appellants Alicea Enterprises, Inc. and Physician Compounding, LLC operate Sunlake Pharmacy through a joint venture. Huy Ba Le and Ingrid Mary are pharmacists employed by Sunlake Pharmacy. Collectively, we will refer to the appellants as "the Pharmacy."
Ms. Lee alleged that after she learned she was pregnant, she shared the news with the child's father, Andrew. While pregnant, she was prescribed an antibiotic to treat a bacterial infection. Andrew acquired an incomplete prescription label from the Pharmacy and completed the label to display that antibiotic's name. Unbeknownst to Ms. Lee, she instead took Cytotec, which she alleged Andrew placed in the pill bottle she thought contained the antibiotic. Lee's ingestion of the Cytotec medication caused her to miscarry. It is unclear whether the Pharmacy provided the incomplete prescription label by itself or affixed to an empty prescription bottle.
Reference
- Full Case Name
- ALICEA ENTERPRISES, INC., a Florida corporation, now converted to Alicia Enterprises, LLC, d/b/a Sunlake Pharmacy and also d/b/a Physician Specialty Compounding, LLC Physician Specialty Compounding, LLC, a Florida Limited Liability Company, d/b/a Sunlake Pharmacy Huy Ba Le and Ingrid Mary Bendeck, Appellants/Cross-Appellees v. NATIONWIDE INSURANCE COMPANY OF AMERICA, INC., Joseph Stahel, and Remee Jo Lee, Appellees/Cross-Appellants.
- Cited By
- 3 cases
- Status
- Published