15 Fla. L. Weekly Supp. 1054b
Insurance — General liability — Coverage — Automobile accident on roadway in front of insured bank — Error to interpret contractual promise to pay medical expenses for bodily injury caused by accident because of insured’s operations as requiring that accident must occur at location where bank is actively engaged on behalf of its business — Under plain meaning of contract, insurer is responsible for bodily injury caused by accident because of insured’s operations so long as accident occurs in coverage territory — Bodily injury caused by accident on “ways next to premises” includes injury occurring on public roadway adjacent to bank property — Entry of summary judgment in favor of insurer was error where there remain disputed issues of material fact as to exactly where accident occurred and whether design and landscaping of bank caused claimant not to see vehicle she struck as it exited fast food restaurant next to bank
CATHLEEN AINSWORTH, as parent and natural guardian of JOSHUA AINSWORTH, Appellant, v. ZURICH AMERICAN INSURANCE COMPANY, d/b/a ZURICH U.S., a/k/a ZURICH NORTH AMERICA, and COLONIAL AMERICAN CASUALTY AND SURETY COMPANY a/k/a COLONIAL AMERICAN CASUALTY AND LIABILITY, Appellees. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-177 AP. L.C. Case No. 04-4632 CC 05. September 17, 2008. On appeal from Final Judgment by the County Court of the Eleventh Judicial Circuit of Miami-Dade County. Counsel: Annabel C. Majewski, Wasson & Associates, for Appellant. Hinda Klein, Conroy, Simberg Gannon, Krevens & Abel, P.A., for Appellee Zurich American Insurance Company. Rosemary Wilder, Marlow, Connell, Abrams, Adler, Newman & Lewis, for Audubon Insurance Company, Amicus Curiae.
QUASHED at 34 Fla. L. Weekly 1585a
(Before SOTO, MARIN and THORNTON, JJ.)
(Per Curiam). Appellant Cathleen Ainsworth was driving eastbound on Quail Roost Drive with her son Joshua. As she approached SW 114 Avenue, she came to a Total Bank immediately west of a Burger King. Ainsworth’s car was struck by a car exiting Burger King. The impact caused Ainsworth’s car to cross into oncoming traffic where a second, more severe impact occurred. Ainsworth and her son were injured.
Ainsworth sued for medical payment benefits under a general liability policy issued by Zurich American Insurance Company to Total Bank. The Court below granted summary final judgment for Zurich. She appeals.
The standard of review for a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). Judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c), Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). The burden of conclusively showing the absence of genuine issues of material fact rests with the moving party. Florida East Coast Ry. v. Metro. Dade County, 438 So. 2d 978 (Fla. 3d DCA 1983). If the slightest doubt exists, summary judgment must be reversed. Sierra, 767 So. 2d at 525, citing Hancock v. Department of Corrections, 585 So. 2d 1068 (Fla. 1st DCA 1991).
The plain language of the contract controls. Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). “Where an insurance contract is ambiguous, policy provisions are interpreted liberally in favor of the insured and strictly against the [insurer].” Id.
The parties agree on the relevant language, if not its meaning. In pertinent part the policy provides:
a. We will pay medical expenses as described below for “bodily injury” caused by an accident:
(1) On premises you own or rent:
(2) On ways next to premises you own or rent; or
(3) Because of your operations;
provided that:
(1) The accident takes place in the “coverage territory” . . .
The term “operations” has been interpreted to mean the actions by which an insured conducts its business. Merrell v. Republic Western Ins. Co., 931 P.2d 577, 579 (Colo. App. 1997); 11 Couch on Ins. §158:45. In the present instance, the Trial Court concluded that the contractual promise to pay medical expenses for ‘bodily injury’ caused by an accident because of the insured’s operations, “must occur at a location where the bank is actively engaged on behalf of its business.” This limitation is unsupported in the trial court’s order, unmentioned in Zurich’s answer brief, nor raised in the amicus curiae brief of Audubon Insurance Company filed in support of Zurich.
Following the plain meaning of the contract, Zurich is responsible for bodily injuries resulting from an accident caused by Total Bank’s operations so long as that accident occurs within the “coverage territory” defined by the contract. That area includes “The United States of America (including its territories and possessions), Puerto Rico and Canada.”
The term “ways next to premises” is undefined by the insurance contract. Accordingly, it should also be given its plain meaning. Toward that end, a “way” is simply a “passage or path.” Black’s Law Dictionary (8th ed. 2004). Likewise, something may be said to be “next” to something else if it is adjacent, nearest in space or position, immediately adjoining or without intervening space.1
We reject the argument that a public roadway does not abut or adjoin a property because it happens to be sided with a public, pedestrian walkway. It has long been held that “insurance policies purporting to cover certain named premises and “ways immediately adjoining” generally cover injuries on sidewalks bounding the particularly described property and on the street bounding the premises, i.e. injuries sustained within the roadway in front of the property.” City of Detroit v. Empire Fire & Marine Ins. Co., 559 F.Supp. 512, 514 (D.C.Mich. 1983) (emphasis added). Absent evidence to the contrary, the road and walkway are part and parcel of a single way.
Amicus contends that Ainsworth’s interpretation would establish an entire new cause of action for traveling motorists. The argument is belied by decades of case law. Mercado v. Rios, 263 N.Y.S.2d 67, 71 (N.Y.City.Civ.Ct. 1965) (Ways “adjoining” premises covered sidewalk and roadway); Aetna Cas. & Sur. Co. v. Fireman’s Fund Ins. Co., 244 N.Y.S.2d 159, 161 (N.Y.Sup. 1963) (Ways immediately adjoining includes the part of a public highway immediately in front of and abutting the insured’s property); Connolly v. Standard Cas. Co., 73 N.W.2d 119, 121 (S.D. 1955) (“Coverage under the policy extended to those portions of the public highways abutting or touching the farm premises”); Public Service Mut. Ins. Co. v. Jacobs, 161 N.Y.S.2d 791, 793-794 (N.Y. Sup. 1952).
The proposition is well stated in Cristal v. American Cas. Co., 107 N.J.L. 394, 397, 153 A. 490, 491 (N.J.Sup. 1931). The court wrote:
The contract indemnifies against accidents happening on a public way immediately adjoining the property. Belmont Avenue is a single public way from one exterior line thereof to the other, and, where the accident happens upon any part of the street immediately in front of the property described in the policy, it is an accident which happens upon a public way immediately adjoining that property.
Id. at 491.
Zurich and Amicus cite to multiple cases in an attempt to defeat such an interpretation. None are applicable to an accident occurring in the public way in front of the property described. In each instance cited the accident did not occur in front of the premises, but “down the road.” The cases collected in Farm Bureau Mutual Ins. Co. v. Sandbulte, 302 N.W. 2d 104 (Iowa 1981) provide multiple examples of this limitation:
See, e. g., Illinois Conference of United Church of Christ v. Fidelity & Casualty Company, 10 Ill.App.3d 178, 294 N.E.2d 776 (1973) (highway accident on trip between separate parts of insured premises, one-half mile from nearest part of premises;coverage held excluded); M.F.A. Insurance Co. v. Berry, 511 S.W.2d 807 (Mo.1974) (accident on nearby street, but not at point contiguous to premises; coverage excluded); Travelers Indemnity Co. v. Bohn, 460 S.W.2d at 646 (accident on street 847 feet from premises; not covered; way immediately adjoins only if “nothing intervenes”); Pickens v. Maryland Casualty Co., 141 Neb. at 108, 2 N.W.2d at 594-95 (accident on highway eight miles from premises not covered); Lendway v. Muse, 83 N.J.Super. 256, 199 A.2d 391 (1964) (accident in intersection; not covered in “homeowners” policy on adjacent corner lot); General Accident Fire & Life Assurance Corp. v. Woeffel, 7Misc.2d 952, 161 N.Y.S.2d 794 (1957) (accident on street in front of adjacent lot; coverage excluded); Connolly v. Standard Casualty Co., 76 S.D. 95, 73 N.W.2d 119 (1955) (accident on highway in proximity to insured farm premises but separated by railroad right-of-way held not “on ways immediately adjoining” premises).
Id. at 109 (emphasis added). As set forth in Sanbulte, the dispositive issue was whether the accident occurred in front of the property, not whether it happened in the roadway.
Last, the parties dispute where the accident occurred.2 As stated by the Trial Court:
I think it’s really sad, that you all have a difference of opinion. I mean, unless there is something very unique about the facts of this case, it’s sad that we can not agree on where a collision occurred. . . . But I don’t mind the argument, the difficulty of a disagreement on the law, as to how I should interpret the spot but you’re telling me that you all can not agree where impact occurred, and where the cars landed at the end. That’s a factual dispute?
Whether this dispute is material and supported by the record is a matter we consider de novo. For purposes of summary judgment we find it is. Ainsworth, in her deposition, states she never saw the vehicle which struck her. In addition, both parties have introduced multiple photographs of the accident location. “Taking all inferences in a light most favorable to [Ainsworth],” there remains a genuine issue of material fact as to whether the design and landscaping of Total Bank caused her failure to see the car she initially struck. Tire Kingdom, Inc. v. Waterbed City, Inc., 654 So. 2d 1005, 1006 (Fla. 3d DCA 1995).
On the foregoing, we REVERSE the Trial Court. Ainsworth shall be awarded reasonable attorney’s fees in the event she ultimately prevails. § 627.428, Fla. Stat. (SOTO, MARIN and THORNTON, JJ., CONCUR).
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1Princeton University, WordNet 3.0 (2006)
2None of the briefs cite language defining where an accident “occurs.” In the present instance, for example, Ainsworth experienced two impacts with two separate cars. Hence, the accident occurred over a span of time and distance. This begs the question — when and where did the accident begin and end?
