13 Fla. L. Weekly Supp. 259a
Insurance — Automobile liability — Coverage — Non-owned vehicle — Where policy covering liability for injury caused to others by insured’s use of non-owned car defines non-owned car as car not owned, registered or leased by any relative unless at time of accident car had been insured for liability coverage within last 30 days and is driven by an insured who does not own or lease the car, insured was covered under policy for accident that occurred while driving relative’s car for which liability coverage in force at time of accident was voided or rescinded following accident — Under policy exclusions, it is insured state of car at time of accident, not after accident, that determines status as covered non-owned car — Further, if court were to evaluate recission of policy, it would find recission based on alleged misrepresentation on application invalid where application is confusing, vague and ambiguous — Summary judgment granted in favor of insured’s assignee
MARK MACQUARRIE, Assignee of Lamare Chavane, Plaintiff, vs. STATE FARM FIRE AND CASUALTY COMPANY, an insurance corporation, Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 05-CA-4869. December 15, 2005. Jay Kohen, Judge. Counsel: Andrew J. Leeper, Orlando. Peter A. Shapiro, Law Offices of Peter A. Shapiro, Orlando.
FINAL DECLARATORY JUDGMENT AND ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Following the hearing of November 3, 2005, the Court makes the following findings and rulings:
1. The facts in this case are not in dispute; therefore, the only thing remaining for disposition is a question of law, that being, whether the Defendant’s policy of insurance should provide liability coverage to Mr. Lamar Chavane for the motor vehicle accident of August 13, 2002.
2. Plaintiff, Mark MacQuarrie, is the assignee for Lamare Chavane of all law suits/causes of action/right to contest coverage that Lamare Chavane had or may have against Defendant; therefore Plaintiff has legal standing to pursue this law suit against Defendant. Refer to the Assignment of Cause of Action/Right to Contest Coverage by Lamare Chavane to Mark MacQuarrie.
4. On or about August 13, 2002, Lamare Chavane drove a motor vehicle, a 1999 Nissan, (“VEHICLE ONE”), which was owned by Mezilien Joseph, Mr. Chavane’s father in law. Lamare Chavane resided with Mezilien Joseph at the time.
5. Mr. Chavane negligently rear ended Plaintiff Mark MacQuarrie’s vehicle containing Mark MacQuarrie. As a result of the accident Plaintiff alleges that he was injured and incurred damages for which Lamare Chavane was legally liable to pay.
6. Sometime before August 13, 2002, the Defendant State Farm issued and delivered to Lamare Chavane in Orange County a policy of insurance numbered 97 6117-B17-59 (“the Policy”) which was effective on August 13, 2002. In the Policy, page 7, under Section I — Liability Coverages — the Defendant insured the Lamare Chavane for bodily injury in the event of an automobile accident where Lamar Chavane became legally liable to pay damages because of bodily injury to others caused by accident resulting from Lamare Chavane’s use of a non-owned car. The Policy provided Liability Coverages for Lamare Chavane in the amount of fifty thousand/one-hundred thousand dollars ($50,000/$100,000.00).
7. In the Policy, page 3, a non-owned car is defined as “a car not owned, registered or leased by . . . 2. any relative unless the car meets the requirements described below.” The requirements below in the Policy, page 3-4, are, “A car owned, registered, . . . by a relative is considered a non-owned car if, at the time of the accident or loss, the car has been insured for liability coverage within the last 30 days and is driven by an insured who does not own or lease the car.” (emphasis added).
8. Plaintiff contends that the Policy provided liability coverage to Lamare Chavane for the August 13, 2002 accident since the car Mr. Chavane was driving, VEHICLE ONE, was owned by Mezilien Joseph, a relative of Lamare Chavane (relative was defined in the Policy and Mr. Chavane and Mr. Joseph met the definition), not owned or leased by Lamare Chavane, and at the time of the accident of August 13, 2002, VEHICLE ONE had been insured for liability coverage within the last 30 days with Integon.
9. Defendant has denied liability coverage to Lamare Chavane contending that the Integon policy was voided/rescinded following the August 13, 2002 accident; therefore, there was no liability coverage on VEHICLE ONE. Plaintiff contends that this denial was wrongful and in violation of the Policy and Florida Law.
10. An insurance contract should be construed in favor of the insured and insurance coverage. Bankers Life and Cas. Co. v. Vadra, 563 So. 2d 200, 201 (Fla. 3d DCA 1990). Furthermore, in Florida, it is well settled that ambiguity in the language of the insurance policy should be construed liberally in favor of the insured and strictly against the insurer. Ellsworth v. Ins. Co. of North America, 508 So. 2d 395, 399 (Fla. 1st DCA 1987). Exclusionary clauses should be construed even more strictly than coverage clauses. Triano v. State Farm, 565 So. 2d 748, 749 (Fla. 3d DCA 1990).
11. With the above principles in mind, this Court rules as follows.
12. The policy calls for an analysis at the time of the accident, in this case August 13, 2002, to see whether Mr. Chavane was driving a non-owned car as defined in the Defendant’s policy. The Court finds that on August 13, 2002, at the time of the accident, the vehicle Mr. Chavane was driving, VEHICLE ONE, had been insured by Integon for liability coverage within the last 30 days prior to the accident date. Mr. Joseph, the owner of VEHICLE ONE, had timely been paying premiums on the Integon policy for months leading up to the August 13, 2002 accident.
13. Just because Integon, rightfully or wrongfully, elected to take a position that it was not going to provide coverage and was rescinding the policy weeks after the subject accident does not affect the analysis. If it did, that would mean an insurance company like Defendant could simply wait it out for as long as it wanted, years for argument sake, to see if Integon, in this case, would one day, following the accident, take the position that it was not providing coverage and rescinding the policy. Since this Court should construe the Defendant’s policy in favor of finding coverage for Mr. Chavane, this proposition can not hold true.
14. Further, the Defendant’s policy does not specify anything about allowing the Defendant to just wait and see past the date of the accident whether or not liability coverage might get denied or the policy rescinded on the “non-owned” vehicle (the Policy says to look at the time of the accident in no uncertain terms).
15. Even if Defendant’s claim that the Court should look to the rescission by Integon that took place weeks after the accident date had any merit to it, all that argument does is create ambiguity in the definition of non-owned vehicle. Why would it be any less valid to look at the status of the liability coverage for the 30 days before the accident (as the Policy states) as opposed to looking to a date after the subject accident to see if the insurance on the vehicle gets rescinded or denied.
16. Even if the Court were to evaluate the rescission by Integon, the Court would find that the rescission was invalid. The rescission was made based on an alleged misrepresentation in the application for insurance completed by Integon’s insured Mezilien Joseph.
17. Upon review of the application of insurance, it is at best confusing, vague and ambiguous giving no understandable means of obtaining the information from Mr. Joseph that Integon desired, that being a list of the names of all persons residing with Mr. Joseph over the age of 15 years old.
18. Thus the rescission can not reasonably be relied on by Defendant State Farm to justify its position that there was no liability coverage on VEHICLE ONE at the time of the accident of August 13, 2002.
19. Based on the above, the Court finds that the Defendant must provide liability coverage to Lamare Chavane for the August 13, 2002 accident. Thus, Plaintiff’s Motion for Summary Judgment is GRANTED.
20. This Court hereby declares that Defendant must provide liability coverage under the Policy to Lamare Chavane for the August 13, 2002 car accident. This Court retains jurisdiction to assess attorneys’ fees and costs against Defendant and in favor of Plaintiff.
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