2 Fla. L. Weekly Supp. 265b
Insurance — Personal injury protection — Leased vehicles — Responsibility for primary coverage not shifted from lessor’s insurer where lessee was not covered by any other insurance — Lessee was not covered by policy of boyfriend’s mother for injuries sustained while driving vehicle not owned by mother — Doctrine of promissory estoppel does not shift responsibility for coverage to mother’s insurer — Record did not clearly establish that mother intended policy to provide same coverage to girlfriend as it did to relatives — Agents of insurer not required to anticipate situations wherein coverage actually issued would not suffice — In view of fact that mother is not being asked to assume any responsibility for injuries to girlfriend and fact that girlfriend was not without recourse, record established that neither girlfriend nor mother relied to their detriment on any representations made by insurer’s agents
Additional ruling in this case at 3 Fla. L. Weekly Supp. 133a
MARY WINT, Plaintiff, v. NORTH AMERICAN SPECIALTY INSURANCE COMPANY, INCORPORATED, a New Hampshire corporation, and STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation, Defendants. County Court of Polk County, Civil Division. Case No. 93-SP12-1078. April 20, 1994. Michael E. Raiden, Judge.
PARTIAL FINAL JUDGMENT
This cause came on for hearing on the Motion for Partial Summary Judgment filed by Plaintiff MARY WINT, the Motion for Summary Judgment filed by Defendant STATE FARM FIRE AND CASUALTY COMPANY (hereafter “STATE FARM”), and the Motion for Summary Judgment and Motion to Strike Affidavits filed by Defendant NORTH AMERICAN SPECIALTY INSURANCE COMPANY, INC. (hereafter “NORTH AMERICAN”). Upon consideration of the arguments and memoranda of law submitted by counsel for the respective parties, and of the files and records in this case, the Court finds as follows:
1. The Court agrees with the parties that there are no material facts in dispute, and therefore that summary judgment is appropriate on the issue of responsibility to provide insurance coverage.
2. The primary dispute in this case is over which of the two defendant insurance companies must be held responsible for providing PIP coverage to the Plaintiff for injury sustained in a motor vehicle accident. At the time of the accident Plaintiff was driving a vehicle rented from Yerton Leasing and Auto Sales, whose vehicles ordinarily are insured by Defendant NORTH AMERICAN. However, it is NORTH AMERICAN’s position that, by virtue of the terms of the rental agreement and other principles as outlined in NORTH AMERICAN’s memorandum, responsibility for coverage has shifted to STATE FARM.
3. When Plaintiff rented the vehicle from Yerton, she signed an agreement which included the following language: “You are hereby notified that by signing this contract below, you agree that your own liability and personal injury protection insurance, if any, will provide primary insurance coverage up to its full policy limits.” The parties have not addressed whether this portion of the rental agreement sufficiently complies with Section 627.7263, Florida Statutes. In light of the decision reached by this Court, as outlined in greater detail below, this question is not material. Particularly in view of the qualifying language “if any,” the effect of this clause is to continue to obligate NORTH AMERICAN to provide coverage for the rental car unless and until other coverage is found actually to exist. See McCue v. Diversified Services, Inc., 622 So. 2d 1372 (Fla. 4th DCA 1993).
4. NORTH AMERICAN argues that Plaintiff already was covered by a policy issued to Nelda Cauley. Nelda Cauley is the mother of Plaintiff’s boyfriend Justin. The Cauley family owns several vehicles, all insured by STATE FARM. The policy as written does not provide coverage for Plaintiff under the circumstances of this case. The dispositive language is as follows: “Insured means … you [i.e., Ms Cauley] or any relative … while operating a motor vehicle [or] struck as a pedestrian by a motor vehicle [and] anyone else while occupying or when struck as a pedestrian by your car, a newly acquired car, a non-owned car, a temporary substitute car, or a trailer.” Plaintiff is not deemed a “relative” for purposes of this passage. See Pearson v. State Farm Mutual Automobile Insurance Co., 560 So.2d 416 (Fla. 2d DCA 1990). In other words, while Ms. Cauley or a relative would be covered under virtually any conceivable circumstance, Plaintiff is covered only as a permittee driver, occupant, or person injured by a Cauley-owned vehicle. More to the point of this litigation, Ms. Cauley or a relative would have been covered while driving a car rented from Yerton; Plaintiff is not.
5. Plaintiff’s name does appear on one or more applications for STATE FARM coverage. It is clear that this was done, at least in part, because it was expected that Plaintiff would drive one of the family’s vehicles. Plaintiff, at the time Ms. Cauley initially sought to extend coverage to her, also owned and maintained insurance on her own automobile, a Volkswagen. Plaintiff’s name resurfaces when Ms. Cauley purchased an Oldsmobile for her son Justin. Again anticipating that Plaintiff would also be driving this vehicle. Ms. Cauley made this known to STATE FARM when arranging for insurance. By this time Plaintiff appears no longer to have owned the Volkswagen, or any independent insurance coverage.
6. In view of the fact the STATE FARM policy, on its face, does not extend coverage to Plaintiff while driving vehicles other than those owned by the Cauley family, NORTH AMERICAN relies on the principle of “promissory estoppel” to shift the responsibility for coverage from itself to STATE FARM. Essentially, it contends that Cauley, in her discussions with agents for STATE FARM, intended for Plaintiff to be insured as if she were a member of the household — that is, to the same extent as if she were a “relative.” Despite the fact the written policy reads to the contrary, NORTH AMERICAN maintains that since Cauley was assured that her wishes would be met, STATE FARM should be estopped from denying coverage. See, e.g., Blumberg v. American Fire & Casualty Co., 51 So. 2d 182 (Fla. 1951), holding that insurance policies are prepared by insurance companies, and an insured is not duty-bound to read them, and State Automobile Mutual Insurance Co. vs. Hughes Pharmacy, Inc., 491 So. 2d 1260 (Fla. 4th DCA 1986), holding that the failure of an insured to read the policy does not preclude him from claiming a conflict between the policy language and his understanding of what coverage would be provided.
7. STATE FARM responds that this is not an appropriate case for applying the principle of promissory estoppel. After reflection upon the evidence, legal arguments, and applicable case law, the Court agrees. There are several reasons why this is so:
(a) First, it is not abundantly clear that Ms. Cauley actually failed to receive coverage that she requested. The strongest evidence for NORTH AMERICAN is found in Ms. Cauley’s deposition at page 26, lines 6 and ff., wherein she stated, “The way I understood it was this, that myself, my husband, my son, my daughter, and Mary [Plaintiff] would all be covered, it was all the same.” Ms. Cauley explained that her daughter had been injured in a 1991 accident and was discovered to be underinsured, resulting in medical bills that insurance would not reimburse. However, other portions of the Cauley deposition strongly suggest that Ms. Cauley was primarily concerned about the insurance ramifications of Plaintiff driving Cauley-owned vehicles. Examples: “I wanted Mary on here in case that she ever had to drive one of the vehicles …” (Page 8, Lines 11-13) “I told them I wanted Mary covered and because it [the Oldsmobile] was going to be Justin’s car, but in case Mary wanted to drive it or needed to drive it, I wanted her covered.” (Page 10, Line 23 – Page 11, Line 2) “[L]et’s specifically say I didn’t want Mary driving my vehicle and not be covered.” (Page 27, Lines 17-18) In any event, it is clear that Ms. Cauley never specifically requested, nor was she promised, that Plaintiff would be covered by STATE FARM even when driving a vehicle Plaintiff rented for herself. The right to creation of coverage by promissory estoppel must be shown by clear and convincing evidence. Crown Life Insurance Co. v. McBride, 517 So. 2d 660 (Fla. 1987). Such evidence is lacking in the case at bar.
(b) It has also been suggested that the STATE FARM agents should have anticipated situations such as the present set of facts, wherein the coverage as actually issued would not suffice. Even if this were true, however, it would not automatically require application of the principle of promissory estoppel, which appears instead to require some “specific assurance of the carrier.” Crown Life, 517 So. 2d at 663 (Grimes, J., concurring specially). See also Professional Underwriters Insurance Co. v. Freytes & Sons Corp., 565 So. 2d 900 (Fla. 5th DCA 1990), in which the court found no specific misrepresentation that would call for promissory estoppel. While promissory estoppel might be an appropriate means of deterring the perpetuation of a fraud, as STATE FARM notes in its memorandum of law, “If the Court were to entertain promissory estoppel as a remedy for every person who was `shocked and disappointed’ that an exclusion applies to coverage, there would be no limit to litigation as unambiguous contract terms would be rendered meaningless.”
(c) A final, and essential, element of promissory estoppel, missing from this case, is “detrimental reliance.” Neither Ms. Cauley nor Plaintiff relied upon the representations of STATE FARM’s agents to her detriment. Ms. Cauley is not being asked to assume any responsibility for the injuries to Plaintiff, and Plaintiff — by virtue of the coverage ordinarily accompanying the rental agency’s vehicles — is not without recourse even though STATE FARM will not provide coverage for her injuries.
8. The motion to strike relates to certain affidavits obtained from STATE FARM’s agents which, according to NORTH AMERICAN, contradict earlier deposition testimony by those agents and therefore are improperly submitted. See, e.g., Ellison v. Anderson, 74 So. 2d 680 (Fla. 1954). STATE FARM’s position is that the affidavits merely “explain” the prior testimony and therefore are permissible. Willage v. The Law Offices of Wallace and Breslow, P.A., 415 So. 2d 767 (Fla. 3d DCA 1982). The Court views the agents’ affidavits as being of, at best, minimal importance in resolving the issues before it, and believes STATE FARM would be entitled to summary judgment even without the affidavits. In view of the fact the affidavits have not been considered in arriving at the conclusions outlined above, the motion to strike is moot.
ACCORDINGLY, it is ORDERED and ADJUDGED as follows:
(1) The Motion to Strike Affidavits by Defendant NORTH AMERICAN SPECIALTY INSURANCE COMPANY, INC. is denied as moot;
(2) Plaintiff’s Motion for Partial Summary Judgment is granted and judgment on the issue of coverage is hereby entered as outlined in the subsequent paragraphs of this Order;
(3) The Motion for Summary Judgment in favor of Defendant NORTH AMERICAN SPECIALTY INSURANCE COMPANY, INC. is denied;
(4) The Motion for Summary Judgment in favor of Defendant STATE FARM FIRE AND CASUALTY COMPANY is granted. Plaintiff MARY WINT shall take nothing as to Defendant STATE FARM FIRE AND CASUALTY COMPANY, and the two parties shall go hence without day;
(5) Judgment on the issue of coverage is hereby entered in favor of Plaintiff MARY WINT and against Defendant NORTH AMERICAN SPECIALTY INSURANCE COMPANY, INC. This cause is continued for trial on the issue of damages or for such other proceedings as the parties may deem appropriate.
* * *
