13 Fla. L. Weekly Supp. 83a
Insurance — Automobile — Coverage — Declaratory judgment — Where application and policy clearly and unambiguously provide that insured had no coverage for any driver not reported to insurer and approved by insurer in writing, there is no coverage for collision of insured’s truck while unreported employee was driving — Fact that notification procedure outline referenced in policy does not exist and was not given to insured does not negate or change requirement to report and secure approval for all drivers
TRANSPORTATION CASUALTY INSURANCE COMPANY, Plaintiff, vs. SEBASTIAN AGUILAR, d/b/a AGUILAR TRANSPORT, INC., KELLYN G. MOTA-CRUZ and HERLINDO RODRIGUEZ and ARACELI DELAROSA-RODRIGUEZ, Defendants. Circuit Court, 20th Judicial Circuit in and for Lee County, Civil Action. Case No. 05 CA 000127 L. October 6, 2005. R. Thomas Corbin, Judge. Counsel: Robert D. Moses. Steven T. Vasilaros. Arthur Graham. Jennifer Moorehead. Kellyn G. Mota-Cruz, pro se.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
This matter having come before the court on September 19, 2005, on the “Plaintiff’s Motion for Summary Judgment” filed June 2, 2005, it is ordered:
1. Findings
The plaintiff is moving for summary judgment on its complaint and amended complaint, which is a declaratory action asking the court to decide whether an insurance policy covers a collision. The defendant Mota-Cruz was served with the original complaint and he was defaulted by the clerk. He has not been served with the amended complaint and he has not filed an appearance. However, the complaint was amended to add Delarosa-Rodriguez as a party, and the amended complaint makes no new allegations against Mota-Cruz. The other defendants, Aguilar, Rodriguez, and Delarosa-Rodriguez, were served with the original complaint and they have, filed answers to the amended complaint.
Curiously, the insurance policy was issued to “Sebastian Aguilar, d/b/a Aguilar Transport, Inc.”, which indicates that Mr. Aguilar is a sole proprietor who uses a fictitious name containing a term commonly associated with a corporation, that is, “Inc.” He has been sued in this case in that incongruous capacity. This unusual fictitious name is not explained in the record. However, because the policy was issued to Mr. Aguilar in that capacity and because the parties make no issue of his capacity, the court finds it is not an issue. In other words, if he does business as a sole proprietorship, the policy was issued to him, and if the business is a corporation, the policy was issued to the corporation. The question is not how Mr. Aguilar does business; the question is whether the policy provides coverage under the facts in the record.
There are 13 salient facts in the record. The complaint and the amended complaint allege (1) Mota-Cruz was in a collision while driving a vehicle owned by Aguilar, (2) he was employed by Aguilar at the time, and (3) Rodriguez and Delarosa-Rodriguez have sued Aguilar in another lawsuit in which they claim they suffered damages as a result. The defendants admit these facts. They also admit (4) the copy of the policy attached to the complaint is the policy at issue.In support of the motion, the plaintiff has filed the affidavit of Joseph Matteis, a Vice President of a firm that is the “managing general agency and underwriter” for the plaintiff. The affidavit says that an “Exhibit A” is attached but it is not attached to the original affidavit in the court file. The affidavit in the court file has nothing attached to it. Nevertheless, at the hearing counsel for the plaintiff gave the court a copy of the exhibit, which is a copy of Aguilar’s application for the policy. These two documents, the policy and the application, are the documents upon which the plaintiff bases its argument. The defendants do not dispute the authenticity of these documents. Therefore, the court will use the copy of the application delivered at the hearing and will file it with a copy of the Matteis affidavit given to the court at the hearing.
Therefore, the Matteis affidavit establishes (5) the application for the policy and (6) Mota-Cruz was not reported to the plaintiff as a driver working for Aguilar before the collision. There is also no evidence (7) the plaintiff ever gave written approval of Mota-Cruz as a driver of Aguilar’s vehicles.
In the application for the policy, the plaintiff points out (8) language which provides:
“Further, the insured represents that it has submitted to the Company all drivers of its vehicles as of the policy date, further it represents insured will presubmit to the Company, all drivers for approval prior to permitting said drivers to drive an insured vehicle, and will not permit any person not submitted and approved to drive the insured vehicles during the policy term.”
And the plaintiff directs the court to (9) other language in the application which provides:
“All additional drivers must be reported to the Company and approved prior to the operation of said insured unit. A Motor Vehicle Report (MVR) will be ordered and reviewed and insured will be notified of the acceptability of additional drivers.”
The plaintiff also cites (10) language in the policy, which provides:
“Any driver authorized as a commercial truck driver while Operating (sic) covered ‘auto’ with your knowledge and consent under your operating authority. *No coverage will apply to any driver newly placed in service after the policy begins until you report that driver to us and we advise you in writing that he/she is acceptable to us and that he/she is covered under the policy. Coverage on any such driver newly placed in service will become effective as of the date and time we advise you he/she is acceptable and that they are covered by the policy and not before. Subject to the reporting methods outlined and agreed to in the notification procedure outline signed by the insured and the agent prior to coverage being effected under the policy.
*Only such drivers listed as of the date this policy begins, on the schedule in the original application signed by you, and not otherwise excluded are covered as of the date this policy begins.” (Italics supplied by the court.)
The defendants focus on (11) the language in italics. The plaintiff agrees there is no document known as a “notification procedure outline,” which the defendants say the plaintiff had to give to Aguilar before Aguilar was required to notify the plaintiff about a new driver of his trucks.
In further opposition to the motion, the defendants have filed the affidavit of the defendant, Sebastian Aguilar. His affidavit states that (12) “I never received any documentation from the insurance company or its agent . . . that detailed the methods I was to use in reporting newly hired drivers. I did not sign any documentation showing how such drivers were to be reported, whether by mail, facsimile transmission, email, telephone conversation, or otherwise. I was also not supplied with any form to use to send to the insurance company which would show what information was sought concerning any newly hired driver.” The defendants have also filed a copy of the deposition of Joseph Matteis dated September 2, 2005. Attached to that deposition are (13) “Trucking Underwriting Guidelines,” as Exhibit A. Those guidelines were delivered to Aguilar by the plaintiff and they provide, among other things:
“The first incident / accident by an unsubmitted and unacceptable driver: PIU will cancel the policy due to increase in hazard / added hazard not contemplated at the time of binding.”
2. Ruling
2.1 The motion is granted. There is no genuine issue of any material fact that there is no coverage under the policy for the collision of Aguilar’s truck while Mota-Cruz was driving it. Aguilar did not report Mota-Cruz as a driver and Aguilar did not obtain written approval of Mota-Cruz as a driver from the plaintiff.
2.2 The language of the application and the policy are clear and unambiguous. Aguilar had no coverage for any driver that was not reported to the plaintiff and was not approved by the plaintiff in writing. See, e.g., General Security Insurance Company v. Barrentine, 829 So.2d 980 (Fla. 1st DCA 2002).
2.3 The language of the guidelines or the policy do not create an ambiguity or change the requirement that Aguilar had to notify the plaintiff of the name of any new driver and obtain the plaintiff’s written approval of that driver before that driver would be insured.
2.3.1 The “Trucking Underwriting Guidelines” provide the plaintiff will cancel the policy if Aguilar allows an unapproved driver to drive his vehicles and he or she is in a collision. That term of the guidelines does not change the notification and written approval requirements of the policy.
2.3.2 The policy says there is a “notification procedure outline,” and the plaintiff agrees no such document exists or was given to Aguilar. That language in the policy says the “outline” would set forth a procedure for giving notice. The absence of a procedure does not omit or change the requirement that all drivers had to be submitted to the plaintiff and approved by the plaintiff in writing before they would be insured. In the absence of a procedure, any method of notification would have sufficed but no notice at all was given and there is no issue that Mota-Cruz was not approved in writing by the plaintiff. Therefore, there is no coverage.
2.4 For the foregoing reasons, the motion is granted. Counsel for the plaintiff shall submit a final judgment to the court against all of the defendants. The court retains jurisdiction of this matter until that final judgment is entered.
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