13 Fla. L. Weekly Supp. 1056a
Insurance — Automobile — Coverage — Exclusions — Where insured agreed in application, named driver exclusion agreement, and named driver exclusion acknowledgment that husband would be excluded from coverage under policy, trial court erred in finding coverage for loss of insured’s vehicle while operated by husband — Appeals — Lack of transcript of summary judgment hearing does not preclude appellate review where other evidence in record indicates that issues on appeal were raised at hearing
ILLINOIS NATIONAL INSURANCE COMPANY, a foreign corporation, Appellant, v. CANTINA ELLIOTT, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-05-55. L.C. Case No. 2003-CC-10590-O. July 12, 2006. Appeal from the County Court for Orange County, J. Brewer, Judge. Counsel: Walter A. Ketcham, Jr., and Ramon Vazquez, for Appellant. V. Rand Saltsgaver, for Appellee.
(Before J. ADAMS, KIRKWOOD, and ROCHE, JJ.)
FINAL ORDER AND OPINION REVERSING TRIAL COURT’S FINAL JUDGMENT
(PER CURIAM.) Illinois National Insurance Company (Illinois) appeals the lower court’s final partial summary judgment finding insurance coverage and the lower court’s final judgment granting damages. Appellant timely appealed the final order. See Fla. R. App. P. 9.110(b). This Court has jurisdiction. See Fla. R. App. P. 9.030(c)(1)(A). This Court dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.
This case began on July 30, 2003, when the Plaintiff/Appellee Cantina Elliott (Elliott) filed a complaint for declaratory relief seeking the extent of insurance coverage she was afforded under an insurance policy with Illinois. In her complaint, Elliott alleged that she was the owner of a 1991 Acura Legend and maintained an automobile insurance policy on that vehicle with Illinois. She also alleged that in September of 2002, her husband, Adrian Elliott, was operating the vehicle when an electrical short in the engine compartment ignited and caused the vehicle to catch fire resulting in a total loss of the vehicle. Elliott further asserted that the insurance policy provided comprehensive liability coverage with a $500.00 deductible.
After discovery, Illinois filed a motion for summary judgment and Elliott filed a partial motion for summary judgment. In support of its motion for summary judgment, Illinois argued that Elliott specifically requested that her husband be excluded from the insurance policy in her application for insurance. Elliott also executed a document entitled “Named Driver Exclusion Acknowledgement” excluding her husband from coverage under the policy. In addition, Illinois argued that the policy also excluded from coverage any damage or loss resulting from mechanical or electrical failure. Because Elliott stated in her complaint that the fire was caused by an electrical short, Illinois asserted that it was not a covered loss under the policy.
In her motion for partial summary judgment, Elliott asserted that she had an insurance policy with Illinois from July 13, 2002 to January 13, 2003. She argued that the policy did not provide an exclusion from comprehensive liability coverage in the event that a loss or damage occurred to the vehicle while it was operated by her husband.
On January 19, 2005, the trial court granted Elliott’s partial motion for summary judgment and denied Illinois’ motion for summary judgment. On February 10, 2005, the trial court entered a “Final Partial Summary Judgment” incorporating the January 19th order and finding that Elliott was covered under comprehensive liability coverage. Illinois attempted to appeal this order; however, this Court dismissed the appeal for lack of jurisdiction because other claims remained pending with the trial court.
On March 11, 2005, Elliott filed a motion for summary judgment seeking damages for the loss of her vehicle. Illinois filed a motion to stay the proceedings. The trial court denied the motion for stay and granted Elliott’s motion for summary judgment. On May 18, 2005, the trial court entered a final judgment for Elliott in the amount of $5,275.59. Illinois then filed this appeal seeking review of the trial court’s February 10th and May 18th orders.
The standard of review of a summary judgment is de novo. Krol v. City of Orlando, 778 So. 2d 490 (Fla. 5th DCA 2001) (citations omitted). Accordingly, this Court must determine if there is any genuine issue of material fact and whether the moving party was entitled to judgment as a matter of law. Id. citing Fla. R. Civ. P. 1.510(c). It is the moving party’s burden to show that no genuine issue of material fact exists. Id. (citation omitted). Therefore, this Court must consider the evidence in the light most favorable to the nonmoving party, and if the slightest doubt exists, summary judgment must be reversed. Id.
Illinois argues that the loss of the vehicle is excluded pursuant to the named driver exclusion in the insurance contract. In addition, Illinois asserts that the insurance contract excludes losses caused by electrical or mechanical failure which caused the fire that destroyed Elliott’s vehicle.
On the other hand, Elliott asserts that the trial court should be affirmed because there is no transcript of the summary judgment hearing and therefore, there is no evidence the arguments presented on appeal were presented to the trial court. Elliott also contends that the loss of her vehicle was covered under the comprehensive portion of the policy because the loss was caused by fire and that the electrical exclusion relied upon by Illinois is not applicable. Lastly, Elliott maintains that the loss is covered under the policy because the named driver exclusion was ambiguous.
It is true that there is no transcript of the summary judgment hearing. However, other documents in the record, like the motion for summary judgment and memorandum filed by Illinois, demonstrate that the issues Illinois argues on appeal were raised at the trial court level. See Chaiken v. Suchman, 694 So. 2d 115 (Fla. 3d DCA 1997) (finding that lack of transcript of attorney’s fees hearing did not preclude appellate review because other evidence in the record indicated that issues on appeal were raised at the hearing). Accordingly, it appears that the issues raised in this appeal are reviewable by this Court.
An insurance policy is a contract and as such, contract principles apply to its interpretation. Am. Strategic Ins. Co. v. Lucas-Solomon, 927 So. 2d 184 (Fla. 2d DCA 2006) (citation omitted). A contract must be construed in accordance with the plain language of the policy. Continental Ins. Co. v. Collinsworth, 898 So. 2d 1085 (Fla. 5th DCA 2005). It should be construed to give effect to the intent of the parties. Am. Strategic Ins. Co., 927 So. 2d at 186. “A court may resort to construction of a contract only when the language of the policy is in its ordinary meaning is indefinite, ambiguous or equivocal.” State Farm Fire & Cas. Co. v. Deni Assocs. of Fla., Inc., 678 So. 2d 397, 401 (Fla. 4th DCA 1996) quoting U.S. Fire Ins. Co. v. Morejon, 338 So. 2d 223 (Fla. 3d DCA 1976).
Generally, courts liberally construe coverage provisions in insurance contracts. FCCI Ins. Co. v. Horne, 890 So. 2d 1141 (Fla. 5th DCA 2004). However, courts adhere to a strict interpretation regarding exclusion clauses. Id. (citation omitted). Exclusion clauses are read in conjunction with the rest of the insurance policy and from the perspective and understanding of a reasonable person. Am. Strategic Ins. Co., 927 So. 2d at 186 (citation omitted). “When an exclusion is ambiguous or susceptible of more than one meaning, it must be construed in favor of the insured.” Id. (citation omitted). “[T]here must be a ‘genuine inconsistency, uncertainty, or ambiguity in the meaning that remains after the application of the ‘ordinary rules of construction’ before this rule is applied.” Id. quoting Excelsior Ins. Co. v. Ponoma Park Bar & Package Store, 369 So. 2d 938, 942 (Fla. 1979). “If the insurer makes clear that it has excluded a particular coverage, however, the court is obliged to enforce the contract as written.” Deni Assocs. of Fla. Inc., 678 So. 2d at 401.
There are at least three instances where Elliott agreed that her husband would be excluded from coverage under the insurance policy. First, question number ten on the insurance application asked “[i]s there anyone in your household you wish to exclude?” Elliott checked the box marked “yes” and wrote the name of her husband, Adrian Elliott.
Second, the insurance contract contained a section titled “Named Driver Exclusion Acknowledgment” (Acknowledgment). This section provides that Illinois would not provide coverage or defend or pay for any claim arising out of an accident or loss that occurred while the vehicle was being driven by the excluded driver. The Acknowledgment contained an exception for Personal Injury Protection (PIP) and Property Damage Liability Coverage. While the Acknowledgement does not provide the excluded driver’s name, it does refer to the original insurance application and to the “Named Driver Exclusion Agreement” for information on the excluded driver.
Last, the Named Driver Exclusion Agreement (Agreement) provides that except for PIP and Property Damage Liability, Illinois would not provide coverage for any claims arising out of an accident or loss that occurs while the vehicle is being operated by the excluded driver. The Agreement provides the husband’s name, Adrian Elliott, as the excluded driver. The Agreement is signed by Cantina Elliott and dated July 13, 2002.
The Named Driver Exclusion Acknowledgment and the Named Driver Exclusion Agreement are consistent and not ambiguous. Both state that Illinois would not provide coverage or pay or defend any claim, with the exception of PIP and Property Damage Liability, arising out of an accident or loss that occurs while the insured vehicle is being operated by the excluded driver, Adrian Elliott. Illinois clearly indicated it was excluding a particular type of coverage. “So long as no public policy is violated . . . an insurer has the right to decide which risks it will and which it will not insure against.” McIntyre v. Progressive Am. Ins. Co., 563 So. 2d 819, 820 (Fla. 5th DCA 1990) (citation omitted). Accordingly, the trial court erred in granting summary judgment and finding coverage for the loss of Elliott’s vehicle under the insurance policy.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the final partial summary judgment and the final judgment entered by the trial court are REVERSED and this cause is REMANDED for further proceedings consistent with this opinion.
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