15 Fla. L. Weekly Supp. 55a
Insurance — Homeowners — Coverage — Where terms “resident” and “in care of” are ambiguous in homeowners policy that defines “insured” to include named insured, residents of household, relatives and persons under 21 in care of those persons, contract is interpreted in favor of coverage of two-year-old child temporarily staying in home while mother looks for apartment
CITIZENS PROPERTY INSURANCE CORP., Petitioner, v. JOHN BRITTON AND OPHIA JARRETT AND DEON PALMER, PARENTS AND NATURAL GUARDIANS OF MINOR, DEVON PALMER, Respondents. JOHN BRITTON, Respondent/Counter Petitioner, v. CITIZENS PROPERTY INSURANCE CORP. Petitioner/Counter Respondent. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 06-25407 CA11. November 1, 2007. Robert N. Scola, Jr., Judge. Counsel: James Fishman, for Petitioner/Counter Respondent. Debi Chalik, for Respondents Ophia Jarrett and Deon Palmer. David Bierman, Law Office of Russel Lazega, P.A., North Miami, for Respondent/Counter Petitioner, John Britton.
ORDER ON PETITIONER/COUNTER RESPONDENT CITIZENS PROPERTY INSURANCE CORP ANDRES PONDENT/COUNTER PETITIONER JOHN BRITTON’S MOTION FOR SUMMARY JUDGMENT
THESE CAUSES having come to be heard on Respondent/Counter Petitioner Citizens Property Insurance Corp’s Motion for Summary Judgment and Respondent/Counter Petitioner John Britton’s Motion for Summary Judgment on October 29, 2007 and the Court having heard argument of counsel, and being otherwise advised in the Premises, it is hereupon,
1. The facts of the case are:
a. During the policy period, Devon Palmer, a two-year-old child, was run over by a lawn mower resulting in the amputation of his foot.
b. John Britton owned the lawn mower that ran over the foot of Devon Palmer.
c. The incident occurred at 18131 NW 14th Court in Miami, Miami-Dade County, Florida which is the property owned by John Britton and insured by Citizens Property Insurance Corp.
d. John Britton submitted a claim to his insurer, Citizens Property Insurance Corp. The contract of insurance was in effect on the date of loss.
e. Citizens Property Insurance Corporation drafted the contract of insurance.
f. The contract of insurance defines “insured” on page 1 number 3 as: “insured” means you and residents of your household who are:
1. Your relatives; or
2. Other persons under the age of 21 and in the care of any person named above.
g. The resident of the Britton household were:
1. John Britton
2. Perline Faison (the grandmother of Devon Palmer)
3. Alicia (the aunt of Devon Palmer)
h. John Britton, Perline Faison and Ophia Jarrott (Devon Palmer’s mother) considered that Ophia Jarrott and her three minor children including Devon Palmer were not residents of the Britton household but merely temporarily staying there until they could find an apartment.
i. Citizens Property Insurance Corp received notice of the loss 90 days after the loss occurred.
j. Citizens Property Insurance Corp did not produce any evidence showing that it was prejudiced by the notice of loss being 90 days after the loss occurred.
k. Citizens Property Insurance Corp filed a Declaratory Action to disclaim coverage for the medical bills and disclaiming a duty to defend John Britton in the underlying lawsuit filed by Ophia Jarrott on behalf of Devon Palmer saying that Devon Palmer is a resident of John Britton’s household and therefore an insured as defined by the policy of insurance.
l. John Britton filed a response denying that Devon Palmer is a resident of his household and therefore Devon Palmer is not an insured as defined by the policy of insurance.
ORDERED AND ADJUDGED that Petitioner/Counter Respondent Citizens Property Insurance Corp.’s Motion be denied and Respondent/Counter Petitioner John Britton’s Motion be granted, and the same is hereby,
2. The term resident is ambiguous and therefore coverage is interpreted against the insurer and in favor of the insured.
3. The term “in the care of” is ambiguous and therefore coverage is interpreted against the insurer and in favor of the insured.
4. Petitioner/Counter Respondent did not show any Prejudice by being notified of the loss 90 days after the date of loss therefore there is coverage.
5. Petitioner/Counter Respondent agrees that they are subject to Florida Statute 627.428. WHEREFORE, Petitioner/Counter Respondent Citizens Property Insurance Corp’s Motion for Summary Judgment is denied and Respondent/Counter Petitioner John Britton’s Motion for Summary Judgment is granted as to a matter of law that the terms resident and “in the care of” are ambiguous in the policy of insurance and therefore coverage is interpreted in favor of coverage. Also, Petitioner/Counter Respondent is subject to Florida Statute 627.428.
