1 Fla. L. Weekly Supp. 139a
Insurance — Homeowners — Excess liability — Duty to defend — Declaratory judgment — Insurance company not required to defend estates of fatally injured boaters whose sailboat came into contact with power lines in counterclaim suit for contribution and indemnification by power company where decedents fell within family member exclusion of homeowners insurance policy
AETNA CASUALTY AND SURETY COMPANY, a Connecticut corporation authorized to do business in the State of Florida, Plaintiff, v. ALAN S. POLACKWICH, SR., as Personal Representative of the Estate of ROBERT J. POLACKWICH, deceased, and STEPHANIE J. POLACKWICH, as Personal Representative of the Estate of JONATHAN RICHARDS, deceased, and FLORIDA POWER AND LIGHT COMPANY, a corporation authorized to do business in the State of Florida, Defendants. 13th Judicial Circuit in and for Hillsborough County, FL. General Civil Division, Division “C”, transferred from “H”. Case No. 92-5381. November 4, 1992. Richard A. Lazzara, Judge. John Hoft, Tampa, FL, for Plaintiff; Larry I. Gramovot, Tampa, FL, for the Estates; Christopher S. Knopik, Tampa, FL, for Florida Power and Light Company.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AETNA CASUALTY AND SURETY COMPANY (“Aetna”) seeks a declaratory judgment against the estates of ROBERT J. POLACKWICH and JONATHAN RICHARDS (“Estates”) and FLORIDA POWER AND LIGHT COMPANY (“Florida Power”). The essence of its action is a declaration that it has no duty to defend or to extend coverage to the Estates under a primary homeowners liability policy (“primary policy”) and an excess personal liability policy (“excess policy”) based on a counterclaim for contribution and/or indemnification brought by Florida Power against the Estates in another case pending before this court.
In furtherance of its objective Aetna filed a Motion for Summary Judgment. On November 2, 1992 the court heard argument on the motion following which it reserved ruling. The court has now had an opportunity to review and consider Aetna’s Motion for Summary Judgment, the written and oral arguments of the parties, the pleadings and deposition on file and to engage in its own independent research of the law. Based on a careful analysis of all these factors, the court grants the motion for the following reasons.
FACTUAL BACKGROUND
As framed by Aetna’s complaint, the Estates’ answer and defenses and the deposition of Stephanie Polackwich, the following are the undisputed material facts.
The Estates have sued Florida Power and others based on a boating accident which occurred on April 23, 1988 when the mast of a sailboat occupied by the decedents came in contact with overhead power lines under the control of Florida Power. The decedents were fatally injured. At the time of this unfortunate incident the decedent Polackwich was married to the decedent Richards’ natural mother, Stephanie Polackwich, and they all resided in the same household.
During the course of the underlying litigation Florida Power brought counterclaims for contribution and/or indemnification against each estate. The counterclaims allege that both decedents were negligent and responsible for the conduct which caused their deaths and seek contribution and/or indemnification against their estates.
At the time of the accident the decedent Polackwich and his wife were the named insureds on the primary policy issued by Aetna. The decedent Polackwich was also the only named insured under the excess policy issued by Aetna.
Under each policy Aetna has a duty to defend and to pay damages as to any suit which is brought against a named insured for damages because of bodily injury to which coverage under each policy applies. Bodily injury encompasses death. Each policy also contains a family member exclusion provision.
Given these undisputed material facts the court concludes as follows:
1. The court has jurisdiction to resolve the issues of duty to defend and coverage and any questions of fact necessary to resolve these issues relate only to a construction of the legal rights of the parties under the primary and excess insurance policies. Travelers Insurance Company v. Emery, 579 So.2d 798,801 (Fla. 1st DCA 1991); Prudential Property and Casualty Insurance Company v. Castellano, 571 So.2d 598,599 (Fla.2d DCA 1990); Tindall v. Allstate Insurance Company, 472 So.2d 1291,1292 (Fla.2d DCA 1985).
2. After resorting to ordinary rules of construction, St. Paul Guardian Insurance Company v. Canterbury School of Florida, Inc., 548 So.2d 1159 (Fla.2d DCA 1989), there is no genuine issue of the material fact that the suit for contribution and/or indemnification filed by Florida Power against the Estates comes within the clear and unambiguous language of the definition of “suit” found in the policies. See Weston v. The City Council of Charleston, 7 L.Ed. 481,487 (1829) (“The term [suit] is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice which the law affords him. The modes of proceeding may be various but if a right is litigated between the parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit.”)
3. There is no genuine issue of the material fact that both decedents fall squarely within the family member exclusion provision of the primary policy. As to the decedent Polackwich, it is undisputed that he was a named insured. As to the decedent Richards, it is undisputed that he was related by both blood and marriage to the named insureds and resided in their household. General Guaranty Insurance Company v. Broxsie, 239 So.2d 595 (Fla. 1st DCA 1970). Given these undisputed facts as to the primary policy, there is no genuine issue of a material fact that the decedents also fall clearly within the family member exclusion provision of the excess policy.
4. Finally, given these conclusions, the court has no other alternative but to declare in accordance with American Glass Industries, Inc. v. Allstate Insurance Company, 441 So.2d 672,674 (Fla.2d DCA 1983) that “under the family exclusion provision[s] [Aetna has] no obligation to the [Estates] with respect to [Florida Power’s] counterclaim.”
Therefore, for the reasons expressed, Aetna’s Motion for Summary Judgment is granted.
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