USCA11 Case: 21-11675 Date Filed: 12/22/2021 Page: 1 of 5

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-11675 Non-Argument Calendar ____________________

CAPITOL SPECIALTY INSURANCE CORP., a foreign corporation, Plaintiff-Appellee, versus WEST VIEW APARTMENTS, INC., a Florida corporation,

Defendant-Appellant,

JISELL RAMIREZ ESPINOSA, as Personal Representative of the Estate of USCA11 Case: 21-11675 Date Filed: 12/22/2021 Page: 2 of 5

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Manuel Ramirez Crespo, et al.,

Defendant.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:20-cv-22476-MGC ____________________

Before WILSON, NEWSOM, and ANDERSON, Circuit Judges. PER CURIAM: West View Apartments, Inc. appeals a judgment on the pleadings granted to Capitol Specialty Insurance Corp. Capitol sued West View for a declaratory judgment that West View’s in- surance policy with Capitol excluded injuries caused by West View’s employees pouring acid down a ventilation shaft and, there- fore, Capitol has no duty to defend West View in a Florida state court action brought against West View by injured inhabitants of the apartment. On appeal, West View argues that judgment on the pleadings was improper because (1) West View denied material facts alleged in the complaint, and (2) the “pollution exclusion” that Capitol alleges was part of West View’s insurance policy did not, by its plain terms, encompass the accidental pouring of acid. Be- cause the district court applied the wrong standard for deciding a USCA11 Case: 21-11675 Date Filed: 12/22/2021 Page: 3 of 5

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motion for judgment on the pleadings, we reverse without reach- ing the merits. 1 “Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled to judg- ment as a matter of law.” Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014) (quoting Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001)). “In determining whether a party is entitled to judgment on the pleadings, we accept as true all material facts alleged in the non-moving party’s pleading, and we view those facts in the light most favorable to the non-moving party.” Id. (emphasis added) (citing Hawthorne v. Mac Adjust- ment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998)). “If a comparison of the averments in the competing pleadings reveals a material dis- pute of fact, judgment on the pleadings must be denied.” Id. (citing Stanton v. Larsh, 239 F.2d 104, 106 (5th Cir. 1956)). Here, the district court stated the legal standard as follows: “When determining whether judgment on the pleadings is appro- priate, ‘[a]ll facts alleged in the complaint must be accepted as true and viewed in the light most favorable to the nonmoving party.’” Doc. 43 at 2 (emphasis added) (quoting Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008)). In other words, the court took all the facts alleged in the complaint—the moving

1“We review de novo an order granting judgment on the pleadings.” Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014). USCA11 Case: 21-11675 Date Filed: 12/22/2021 Page: 4 of 5

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party’s pleading—as true and decided the merits of the case given those facts. This was reversible error. 2 It’s true that a number of our cases state that when deciding a motion for judgment on the pleadings, courts “must accept the facts alleged in the complaint as true.” Cannon, 250 F.3d at 1301; see also Douglas Asphalt, 541 F.3d at 1273; Interline Brands, Inc. v. Chartis Specialty Ins. Co., 749 F.3d 962, 965 (11th Cir. 2014). But, crucially, we made these statements in the context of cases where—as is typical—the defendant moved for judgment on the pleadings. See Cannon, 250 F.3d at 1301 (noting that the district court granted the defendants’ motion for judgment on the plead- ings); Douglas Asphalt, 541 F.3d at 1272 (noting that the defendants moved for judgment on the pleadings); Interline Brands, 749 F.3d at 965 (same). When the defendant moves for judgment on the pleadings, the complaint is the “non-moving party’s pleading,” Pe- rez, 774 F.3d at 1335, and so we “must accept the facts alleged in the complaint as true,” Cannon, 250 F.3d at 1301. By contrast, when the plaintiff moves for judgment on the pleadings—as hap- pened here—“the old rule obtains that the fact allegations of the answer are to be taken as true, but those of the complaint are taken

2 The district court properly cited the standard that a motion for judgment on the pleadings will be granted when “there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.” But the court’s recitation of this standard came only came after its erroneous statement that it was required to take all the facts alleged in the complaint as true. And the court’s order reveals no analysis of whether material facts were in dispute at this stage of the litigation. USCA11 Case: 21-11675 Date Filed: 12/22/2021 Page: 5 of 5

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as true only where and to the extent that they do not conflict with those of the answer.” Bass v. Hoagland, 172 F.2d 205, 207 (5th Cir. 1949) (emphasis added). Therefore, by accepting all facts alleged in Capitol’s complaint as true rather than all the facts alleged in West View’s answer, the district court erred as a matter of law. This error wasn’t harmless because West View denied ma- terial facts in its answer—chiefly, that West View’s insurance pol- icy with Capitol really included the “Total Pollution Exclusion En- dorsement” that Capitol alleges was part of that policy. West View also alleged, as part of its affirmative defense of estoppel, that Cap- itol “impart[ed] the impression that the general liability coverage of the insurance was not limited by a material carve-out” of the pollution coverage. It’s true that Capitol included as an exhibit to its complaint a copy of what it claims is West View’s insurance pol- icy that contains the pollution exclusion. But even if discovery would eventually reveal Capitol’s exhibit to be genuine and West View’s responsive allegations to be meritless, the district court was required, when deciding the plaintiff’s motion for judgment on the pleadings, to accept West View’s allegations as true. See Bass, 172 F.2d at 207. Because “comparison of the averments in the compet- ing pleadings reveals a material dispute of fact, judgment on the pleadings must be denied.” Perez, 774 F.3d at 1335. REVERSED.