15 Fla. L. Weekly Supp. 362a

Insurance — Homeowners — Exclusions — Policy excluded liability for all claims arising from death of minor passenger in go-cart owned, possessed and controlled by homeowner that collided with car while off of insured property

STATE FARM FLORIDA INSURANCE COMPANY, Plaintiff, vs. JEFFREY and KIMBERLY CATHEY; AMBER HILL; WILLIAM ORTIZ-GRAHAM; ESTATE OF ROGER LEMEY by and through its Personal Representative, PHILIP F. SCHLICHTING; ESTATE OF FRANK ALBERT DIAS by and through its Personal Representative, FRANK P. DIAS, Defendants. Circuit Court, 20th Judicial Circuit in and for Lee County, Civil Action. Case No. 05-CA-001359. January 17, 2008. William C. McIver, Judge. Counsel: Michael K. Kiernan, Abbey, Adams, Byelick, Kiernan, Mueller, Marone & Samis, L.L.P., St. Petersburg. Michael Beckman. Scott Weinstein.

FINAL JUDGMENT IN FAVOR OF PLAINTIFF,STATE FARM FLORIDA INSURANCE COMPANY

THIS MATTER having come on to be heard on May 14, 2007 on the parties’ Cross-Motions for Summary Judgment, specifically, the Cross-Motion for Summary Judgment filed on behalf of the Plaintiff, State Farm Florida Insurance Company (hereinafter “State Farm”), and the Defendant, Estate of Frank Albert Dias by and through its personal representative, Frank P. Dias (hereinafter “Dias”), the court having heard the arguments of counsel and having reviewed the court file, evidentiary filings and having reviewed the applicable case law, it is therefore ORDERED and ADJUDGED as follows:

1. That the undisputed facts in this matter revealed that State Farm issued a Homeowner’s Insurance Policy Number 59-LR-2234-9 (hereinafter “the Policy”) to its insureds, Jeffrey and Kimberly Cathey (hereinafter collectively “Catheys”), covering property located at 2705 First Street West, Lehigh Acres, Florida. The Policy had an effective date of February 22, 2003 through February 22, 2004 and carried liability limits of $300,000 for the Catheys.

2. That on or about August 29, 2003, Frank Albert Dias, a minor, was riding as a passenger in a motor vehicle, specifically a “Fun-Kart” which is a brand of go-cart, owned, possessed and controlled by the Catheys. That on that date, Frank Albert Dias, a minor, was killed as a result of a collision between an automobile and the aforementioned “Fun-Kart.” The accident occurred at the intersection of Hanna Avenue South and 6th Street Southwest in Lehigh Acres, Lee County, Florida.

3. That “Dias”, in his capacity as the personal representative of the Estate of Frank Albert Dias, a minor, filed suit against various Defendants for damages arising out of the death of Frank Albert Dias, a minor.

4. That the Catheys, as insureds of State Farm, sought coverage under State Farm’s Homeowners Policy of insurance for liability coverage for Dias’ claim. Specifically, the Catheys have asserted that State Farm has an obligation under the aforementioned insurance policy to defend them and indemnify them for any Judgment entered in the wrongful death case filed by Dias.

5. That the State Farm policy of insurance provides in pertinent part:

SECTION II — EXCLUSIONS

1. Coverage L and Coverage M do not apply to:

* * *

e. bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of:

***

(2) a motor vehicle owned or operated by or rented to or loaned to any insured;

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f. bodily injury or property damage arising out of:

(1) the entrustment by any insured to any person;

(2) the supervision by any insured of any person;

(3) any liability statutorily imposed on any insured; or

(4) any liability assumed through an unwritten or written agreement by any insured;

with regard to the ownership, maintenance or use of any aircraft, watercraft, or motor vehicle (or any other motorized land conveyance) which is not covered under Section II of this policy;

6. The Policy contains the following definition of the term “motor vehicle”:

6. “motor vehicle”, when used in Section II of this policy, means:

a. a motorized land vehicle designed for travel on public roads or subject to motor vehicle registration. A motorized land vehicle in dead storage on an insured location is not a motor vehicle;

b. a trailer or semi-trailer designed for travel on public roads and subject to motor vehicle registration. A boat, camp, home or utility trailer not being towed by or carried on a vehicle included in 6.a. is not a motor vehicle;

c. a motorized golf cart, snowmobile, or other motorized land vehicle owned by an insured and designed for recreational use off public roads, while off an insured location. A motorized golf cart while used for golfing purposes is not a motor vehicle;

d. a motorized bicycle, tricycle or similar type of equipment owned by an insured while off an insured location; and

e. any vehicle while being towed by or carried on a vehicle included in 6.a., 6.b., 6.c., or 6.d.

7. The Policy provides the following definition of the term “insured location”:

5. “insured location” means:

a. the residence premises;

b. the part of any other premises, other structures and grounds used by you as a residence. This includes premises, structures and grounds you acquire while this policy is in effect for your use as a residence;

c. any premises used by you in connection with the premises included in 5.a. or 5.b.;

d. any part of a premises not owned by an insured but where an insured is temporarily residing;

e. vacant land owned by or rented to an insured. This does not include farm land;

f. land owned by or rented to an insured on which a one or two family dwelling is being constructed as a residence for an insured;

g. individual or family cemetery plots or burial vaults of an insured;

h. any part of a premises occasionally rented to an insured for other than business purposes; and

i. 500 acres or less of farm land (without buildings) rented to others.

8. That the Court specifically finds that State Farm’s policy language, specifically exclusions1(e) and 1(f), in their entirety, are clear and unambiguous on their face and specifically exclude liability coverage for the Catheys for any and all claims arising out of the unfortunate death of the minor, Frank Albert Dias.

Therefore, it is hereby

ORDERED AND ADJUDGED:

1. That the Plaintiff’s, State Farm, Cross-Motion for Summary Judgment is GRANTED in its entirety; and

2. That Final Judgment is hereby entered in favor of the Plaintiff, State Farm, and the Defendant, Dias, shall take nothing by this matter and the Plaintiff, State Farm, shall go henceforth without day.