12 Fla. L. Weekly Supp. 1155a
Insurance — Automobile — Excess insurance — Coverage — Insurer seeking declaration that insured was responsible for gap between bodily injury coverage limits in underlying policy and the limits required by terms of umbrella policy in order to trigger excess coverage — Counterclaim by insured’s son who was initially a defendant to suit but subsequently dismissed from suit — Son’s motion for summary judgment on counterclaim is denied because court cannot find that there is no genuine issue of material fact — It is not clear what relief son is seeking — Further, record is incomplete and insurer’s defenses have not been addressed
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, vs. KAREN WOLFE, TYLER VOGT and ROBERT MCKEE, Defendants. Circuit Court, 20th Judicial Circuit in and for Lee County, Civil Action. Case No. 04 CA 00950 L. September 29, 2005. R. Thomas Corbin, Judge. Counsel: Cutright C. Truitt. Scott Wm. Weinstein. Mark A. Boyle.
ORDER DENYING DEFENDANT VOGT’S SECOND MOTION FOR SUMMARY JUDGMENT
This matter having come before the court on August 22, 2005, on the “Counterclaim Plaintiff, Tyler Vogt’s, Second Motion for Summary Judgment”, filed May 25, 2005, it is ordered:
1. Findings
The defendant Vogt is moving for summary judgment on his counterclaim. The plaintiff, State Farm, sued for declaratory judgment. The complaint alleges the plaintiff issued a $2,000,000 umbrella policy to the defendant Wolfe, and Wolfe also insured all of her vehicles with the plaintiff for limits of 250/500 for bodily injury, except for one vehicle, a 2001 Toyota, which had bodily injury coverage of 100/300. Wolfe owned that Toyota jointly with her son, the defendant Vogt.
The complaint says Vogt was involved in a collision with the defendant McKee while driving the Toyota and McKee was injured. In another suit, McKee sued Wolfe and Vogt and the parties later settled that suit. The plaintiff in this suit, State Farm, paid sums due under the settlement agreement. Presumably, the settlement exceeded $500,000, although the complaint does not allege the terms of the settlement and the terms do not otherwise appear in the record. In his answer to the complaint in this case, Vogt says he did not agree to the terms of the settlement of the McKee lawsuit.
The complaint also alleges the umbrella policy had a condition that required “all underlying coverage . . . to be at least 250/500 before it applied,” and that Wolfe “never disclosed VOGT (sic)1 as a household driver under the subject policies.” The complaint asks the court to declare that Wolfe and Vogt are responsible for “the gap of $150,000” before the umbrella would “be triggered”, and also asks the court to declare there is no coverage at all under the umbrella.
Vogt filed an answer saying he was “without knowledge” of the policies insuring his mother and him. His answer admitted that the court has jurisdiction, that he and his mother live in Lee County, that he was in a collision with McKee, that McKee sued him and his mother, and that the case was settled. He also raised six affirmative defenses and filed a counterclaim. However, the plaintiff later voluntarily dismissed the complaint against Vogt and McKee. The plaintiff did not dismiss the complaint against Wolfe.
In his counterclaim Vogt said he was suing for declaratory relief and he repeated the allegations found in his affirmative defenses. He does not allege the facts found in the complaint. He does not ask for a declaration of the rights of the parties under the policies. He calls the pleading a “counterclaim, ” but it does not ask for any affirmative relief. It is entirely defensive. It states: (1) the plaintiff is “estopped” from suing him, for various reasons; (2) an insurer cannot subrogate against its insured, which states a truism and begs the question, which is whether Wolfe and Vogt are insureds; (3) the plaintiff failed to comply with the “Florida Claims Administration Statute” or “Florida’s common law regarding insurer (sic) properly reserving rights under a policy of insurance”, although the facts of that noncompliance are not alleged; (4) the plaintiff is “barred from seeking” its claim because its agent was negligent and allowed the “gap” in Vogt’s coverage; (5) the plaintiff cannot recover its attorney’s fees if it did not correctly reserve its rights. Then Vogt (6) asks for his attorney’s fees in defending against the plaintiff’s complaint under §627.428 and “§57.104” (sic) and “filing of a Cross Claim (sic) in response to the claims of Insurer (sic).” However, while Vogt defended against the plaintiff’s complaint, he never filed a cross claim against Wolfe, who, interestingly, was also the State Farm agent who wrote the umbrella and auto policies at issue. Vogt’s counterclaim closes with a request that he not be required to reimburse the plaintiff and that he be awarded his attorney’s fees. Vogt’s request for fees is the only affirmative relief he asks for in his counterclaim, which could have been done in a motion.
State Farm filed an answer to Vogt’s counterclaim. The answer denied the substantial allegations of the counterclaim and raised additional factual matters in three paragraphs labeled “Second Defense”, “Third Defense”, and “Fourth Affirmative Defense”, that is, (1) State Farm “in disclosing available policy limits” . . . “relied on misrepresentations made by” Wolfe, but the misrepresentations are unknown because the paragraph does not state what they were; (2) Wolfe did not disclose Vogt as a household driver; and (3) Vogt is “estopped from bringing this Declaratory Relief (sic) action” because “he failed to disclose his driving history to STATE FARM” (sic). Vogt’s motion and argument do not address these factual matters raised in State Farm’s answer to his counterclaim.
2. Ruling
2.1 The motion is denied, because, first, the record is incomplete and it does not demonstrate there are no genuine issues of material fact; second, it is not clear what relief Vogt seeks in his motion and his counterclaim, that is, whether he is asking for a declaration of the rights of the parties under the policies or whether he is asking only for his attorney’s fees in defending against the plaintiff’s complaint; and, third, Vogt’s motion and argument did not address the factual matters raised by State Farm’s answer.
2.2 The “record,” for purposes of a decision at summary judgment or at trial, consists of the pleadings and the proven facts. The pleadings determine which facts are relevant. Then the relevant facts must be proven. Vogt’s counterclaim does not allege the facts found in the dismissed complaint and it does not seek a declaration of the rights of the parties under the policies, but it seems that may be what Vogt wants. If that is what he wants, the record is incomplete. For instance, the policies are not proven, by affidavit, testimony, admission or stipulation. In his answer, Vogt said he was “without knowledge” of what policies were insuring him. Nothing in the record proves the policies. At the hearing, counsel discussed the policies as if they are established in the record. It seems the policies are material to a declaration of the parties’ rights, if this is what Vogt wants. The terms of the McKee settlement are also unknown. Again, it seems those terms are material to a declaration of the parties’ rights.
Unsworn allegations and statements of counsel do not prove facts. See, e.g., Blimpie Capital Venture, Inc., v. Palms Plaza Partners, Ltd., 636 So.2d 838, 840 (Fla. 2d DCA 1994): “We have held that, in the absence of a stipulation, a trial court cannot make a factual determination based on an attorney’s unsworn statements. State v. Brugman, 588 So. 2d 279 (Fla. 2d DCA 1991). A trial court, as well as this court, is also precluded from considering as fact unproven statements documented only by an attorney. Schneider v. Currey, 584 So.2d 86 (Fla. 2d DCA 1991). See also Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982) (‘If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.’)”. See, also, Florida Standard Jury Instructions in Criminal Cases 2.7. “Please remember that what the attorneys say is not evidence.”
In his motion for summary judgment and at the hearing on the motion, Vogt’s counsel discussed the facts alleged in the complaint, the affirmative defenses and the counterclaim, which suggest that Vogt is seeking a declaration of the rights of the parties under the policies, but the facts necessary to that declaration are not in the record.
2.3 Regarding the relief Vogt seeks, his counterclaim is entirely defensive. It does not state a cause of action for a declaration of the rights of the parties under the policies. It does not ask for affirmative relief. The counterclaim only says the plaintiff’s claim is barred on various theories, which are the same theories raised in his affirmative defenses. It closes with two requests: First, that the court declare “[t]hat VOGT (sic) is not required to reimburse Insurer (sic) for any monies;” and, second, “[t]hat Insurer (sic) is responsible for the attorneys’ fees and legal assistant fees and costs incurred by VOGT (sic) in defending this declaratory judgment claim;. . .” The complaint having been dismissed against Vogt, his first request appears to be moot because his counterclaim does not allege the facts necessary to a declaration of the rights of the parties under the policies and he does not ask for that relief, and therefore only the second request remains, that is, his claim for attorney’s fees under §627.428 and, presumably, §57.105, for defending against the plaintiff’s complaint.
If Vogt is asking the court to declare the rights of the parties under the insurance policies, the court cannot grant that relief with the pleadings in their present state. A party must first plead for any relief sought.
If Vogt is only asking for his fees in defending against the plaintiff’s complaint, the undisputed facts on that claim are (1) the plaintiff sued for a judgment declaring there was no coverage under some policies and then (2) the plaintiff dismissed its complaint. There should be case law on those facts saying whether or not an insured is entitled to fees. It seems, from Vogt’s point of view, a declaration of the rights of the parties is unnecessary to his claim for fees, and therefore the facts alleged in the complaint, and in Vogt’s answer and affirmative defenses and in his counterclaim and also State Farm’s defenses may be irrelevant to his claim for fees.
On the other hand, State Farm may take the position that even if Vogt’s only claim is his claim for his fees following its dismissal of the complaint, the court must nevertheless address the merits of the dismissed complaint in deciding if Vogt is entitled to his fees. In other words, State Farm may believe the court must decide whether Vogt was an insured, and if so, to what extent, and otherwise declare the rights of the parties under the policies, because if Vogt is not an insured, that might defeat his claim for fees.
But it is not clear that the only thing Vogt seeks is his fees, and State Farm’s position is also confused. State Farm’s answer to Vogt’s counterclaim raises some facts in defense but not all of the facts set forth in its dismissed complaint. It is not clear, therefore, whether State Farm is asking for a declaration of the rights of the parties under the policies.
2.4 Finally, State Farm raised factual matters in defense, which have not been addressed by Vogt’s motion. If these have merit, they might defeat Vogt’s claims, whether for fees or a declaration of the rights of the parties under the policies.
2.5 Therefore, the court cannot find there is no genuine issue of material fact on Vogt’s counterclaim because the record is incomplete, because it is not clear what relief Vogt seeks, and because State Farm’s defenses have not been addressed.
For the foregoing reasons, the motion is denied.
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1Counsel in this lawsuit, like counsel in most lawsuits and like many judges, have a penchant for capitalizing some nouns. Not all nouns, as is the rule in German, and not only proper nouns, as is the rule in English, just some nouns and then apparently randomly, which makes the writing more difficult to read. Sometimes, as here, nouns are written entirely in capitals.
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