24 Fla. L. Weekly Supp. 332a

Online Reference: FLWSUPP 2405JGUZInsurance — Uninsured motorist — Coverage — Where liability portion of policy defined “covered auto” as including not only those vehicles owned by the named insured, but also autos owned by employees used in the insured’s business, the president/owner of the named insured was entitled to UM coverage for accident that occurred when he was driving his personal vehicle within course and scope of his job duties with the named insured, although UM policy limited definition of “covered auto” for UM purposes to only those vehicles owned by named insured — Where definition of “covered auto” was much broader for purposes of liability coverage, and employee’s personal automobile fell within that broader definition, Florida law requires that it be deemed covered for UM coverages as well — Because insurer defined “insured” for UM purposes as anyone occupying any covered auto, UM coverage was available so long as employee was operating vehicle within the course and scope of insured’s business

JUAN GUZMAN, et. al., Plaintiff, vs. TRAVELERS CASUALTY INSURANCE CO., et. al., Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. Civil Division, Case No. 15-1271 CA (22). June 22, 2016. Michael A. Hanzman, Judge.

ORDER ON CROSS MOTIONSFOR SUMMARY JUDGMENT

I. Introduction

On March 21, 2013, Juan Guzman (“Guzman”) — the then President/Owner of Decora USA Painting & Waterproofing, Inc. (“Decora”) — suffered fatal injuries when a vehicle he was operating was rear ended by an underinsured motorist. At the time of this accident Guzman was driving his personal automobile (a 1999 Toyota Tacoma), allegedly within the course and scope of his job duties with Decora, a company in the business of painting and applying wallpaper in residential buildings.

Defendant, Travelers Casualty Insurance Company of America (“Travelers”), issued a Commercial Automobile Policy (“Policy”) to Decora which provided underinsured/uninsured motorist (UM) coverage. Decora is the only “Named Insured” on the Policy, and the only vehicle listed on the Policy is a 2009 Toyota Tacoma owned by the company. Plaintiff, Juan U. Guzman, as Personal Representative of Guzman’s Estate, and as his surviving son, nevertheless claims an entitlement to UM benefits — asserting that Guzman’s personal automobile is a “covered auto” and Guzman is an “insured.”

Travelers disagrees and maintains that the Policy only provides UM coverage if an insured is injured while occupying a “covered auto” which — for UM coverage purposes — is defined as an auto Decora owns. Because the Policy identifies the only auto owned by Decora as a 2009 Toyota Tacoma — a vehicle that was not involved in this accident — Travelers insists Guzman was not injured in a “covered auto.” Travelers also claims that UM coverage is unavailable because Guzman is not an “insured” under the liability portion of the Policy. This — according to Travelers — precludes Guzman from being an “insured” for purposes of UM coverage.

Both parties have moved for Summary Judgment on the issue of coverage and the dispositive legal question presented is straightforward. Assuming Guzman was operating his personal vehicle within the course and scope of his employment, does the company’s Policy provide UM coverage for damages he (or here his Estate and survivor) suffered as a result of an accident caused by an underinsured driver.¹ The answer depends upon whether the car Guzman was driving is a “covered auto,” and whether he is an “insured” as defined by the Policy.

II. The Relevant Policy Provisions

The Policy uses “Covered Auto Designation Symbols” to describe those vehicles defined as “covered autos.” The relevant numeric “symbols” — and the corresponding definition of the vehicles encompassed by each — are:A. Description of Covered Auto Designation Symbols

Symbol	Description of Covered Auto Designation Symbols
1 Any “Auto”
2 Owned “Autos” Only	Only those “autos” you own . . . This includes those “autos” you acquire ownership of after the policy begins.
7 Specifically Described “Autos”	Only those “autos” described in Item Three of the Declarations for which a premium charge is shown . . .
8 Hired “Auto” Only	Only those “autos” you lease, hire, rent, or borrow. This does not include any “auto” you lease, hire, rent or borrow from any of your “employees,” partners, . . . members, . . . or members of their household.
9 Nonowned “Autos” Only	Only those “autos” you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes “autos” owned by your “employees,” partners, . . . members, . . . or members of their household but only while used in your business or your personal affairs.

Business Auto Coverage Form CA 00 01 03 06.

The Policy then provides that for purposes of “liability” coverage, vehicles encompassed by symbols 7, 8, and 9 are deemed “covered autos.” But for purposes of UM coverage the only vehicles deemed “covered autos” are those identified by Symbol 2. See Business Auto Coverage Declaration, Form CA to 01 02 07. Thus, the Policy — as plainly written — affords liability coverage to certain vehicles not specifically designated by the Policy or owned by the insured, whereas UM coverage is available only in instances involving a vehicle owned by the named policy holder. Put simply, the definition of a “covered auto” for liability purposes is much broader than the definition of a “covered auto” for UM purposes.

The exact opposite is true with respect to the definition of an “insured.” For purposes of liability coverage an “insured” is defined as:

SECTION II — LIABILITY COVERAGE

A. Coverage

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto”.

1. Who Is An Insured

The following are “insureds”:

a. You for any covered “auto”.

b. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:

(1) The owner or anyone else from whom you hire or borrow a covered “auto”. This exception does not apply if the covered “auto” is a “trailer” connected to a covered “auto” you own.

(2) Your “employee” if the covered “auto” is owned by that “employee” or a member of his or her household.

(3) Someone using a covered “auto” while he or she is working in a business of selling, servicing, repairing, parking or storing “autos” unless that business is yours.

(4) Anyone other than your “employees”, partners (if you are a partnership), members (if you are a limited liability company), or a lessee or borrower or any of their “employees”, while moving property to or from a covered “auto”.

(5) A partner (if you are a partnership), or a member (if you are a limited liability company) for a covered “auto” owned by him or her or a member of his or her household.

c. Anyone liable for the conduct of an “insured” described above but only to the extent of that liability.

See Exhibit D, Form CA 00 01 03 06, Page 2. So for example — and pertinent here — an “employee” driving a covered auto he or she owns personally is excluded from the definition of an “insured” for purposes of “liability” coverage. See, Sec. II. A. 1. b. (2). But when the Named Insured is a corporate entity, an “insured” for purposes of UM coverage includes:

A. Anyone “occupying” a covered “auto” or a temporary substitution for a covered “auto”.

Form CA 21 72 10 09. As a result, one who does not fit within the definition of an “insured” for purposes of liability coverage may very well fit the definition of “insured” for UM coverage, as the latter is undoubtedly broader than the former.

III. Governing Law and Analysis

The general legal principles to be applied here are well settled. Like any contract, an insurance agreement is “construed in accordance with the plain language of the policy as bargained for by the parties.” Fayad v. Clarendon Nat. Ins. Co., 899 So. 2d 1082 (Fla. 2005) [30 Fla. L. Weekly S203a]; Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 33 (Fla. 2000) [25 Fla. L. Weekly S211a]. Furthermore, to the extent any ambiguity exists, the carrier — as the writer of the contract — “is bound by the language of the policy, which is to be construed liberally in favor of the insured and strictly against the insurer.” Washington Nat. Ins. Corp. v. Ruderman, 117 So. 3d 943 (Fla. 2013) [38 Fla. L. Weekly S511a]; St. Paul Fire & Marine Ins. Co. v. Llorente, 156 So. 3d 511 (Fla. 3d DCA 2014) [40 Fla. L. Weekly D67a]. It also is well settled that the interpretation of an insurance contract presents a question of law because: (a) the interpretation of an unambiguous contract provision raises no factual dispute; and (b) even if the relevant provision is found to be ambiguous (i.e., susceptible to more than one reasonable interpretation) the ambiguity is to be construed against the insurer and in favor of coverage. See Penzer v. Transp. Ins. Co., 29 So. 3d 1000 (Fla. 2010) [35 Fla. L. Weekly S73a]; Stuyvesant Ins. Co. v. Butler, 314 So. 2d 567 (Fla. 1975); Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985).

In construing the policy the Court should read it “as a whole, endeavoring to give every provision its full meaning and operative effect,” and the contract should receive a construction that is “reasonable, practical, sensible, and just.” See Gen. Star Indem. Co. v. W. Florida Vill. Inn, Inc., 874 So. 2d 26 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b]. But “[i]f the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the [other] limiting coverage, the insurance policy is considered ambiguous,” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) [30 Fla. L. Weekly S633a], and “any ambiguity which remains after reading the policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer.” Ruderman, supra at 949-950.

Finally, the Court must be mindful that the insurer, as the drafter of its policy, is in the best position to construct the contract as it sees fit, and the Court’s task is to apply the parties’ contract as written, not “rewrite” it under the guise of judicial construction. Gulliver Sch., Inc. v. Snay, 137 So. 3d 1045 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D457a] (“[w]here contracts are clear and unambiguous, they should be construed as written, and the court can give them no other meaning”); Pol v. Pol, 705 So. 2d 51, 53(Fla. 3d DCA 1997) [23 Fla. L. Weekly D75a] (“a court cannot rewrite the clear and unambiguous terms of a voluntary contract”). The Court’s duty is to simply apply the terms of the insurance agreement as they would be understood by the “man-on-the-street.” State Farm Fire & Cas. Co. v. Castillo, 829 So. 2d 242 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1845a].

If these general principles — and these general principles only — govern here the disposition of this case is simple. The Policy — as plainly written — provides UM coverage only for autos actually owned by the Named Insured (i.e., Symbol 2). Guzman’s personal vehicle is therefore not a “covered auto” for purposes of this coverage. A fortiori, Guzman was not “occupying” a “covered auto” for UM purposes and, as a result, is not an “insured.” The issue, however, is not so simple; the reason being that “although parties to a contract — insurance contracts included — are generally free to structure a bargain as they see fit, section 627.727 substantially limits the freedom to contract for uninsured motorist coverage.” State Farm Mutual Automobile Insurance Company v. Smith, 41 Fla. L. Weekly D1338a (Fla. 2d DCA, June 3, 2016); Salas v. Liberty Mut. Fire Ins. Co., 272 So. 2d 1 (Fla. 1972) (“[a]s a creature of statute rather than a matter for contemplation of the parties in creating insurance policies, the uninsured motorist protection is not susceptible to the attempts of the insurer to limit or negate that protection);Young v. Progressive Se. Ins. Co., 753 So. 2d 80 (Fla. 2000) [25 Fla. L. Weekly S120a] (UM statute “was enacted to provide relief to innocent persons who are injured through the negligence of an uninsured motorist; it is not to be ‘whittled away’ by exclusions and exceptions”). So the question becomes whether the Policy — as plainly written — violates Florida’s UM statute by providing liability coverage for a broader class of “covered autos” than those that are afforded UM coverage.

Absent rejection from the insured — which did not occur here — Florida Statute § 627.727(1) requires that UM coverage accompany every automobile liability policy, and that the “limits of uninsured motorist coverage shall not be less that the limits of bodily injury liability insurance purchased by the named insured. . . .” § 627.271(1)(2), Fla. Stat. (2015). The statute is designed “to provide for the broad protection of the citizens of this State against uninsured motorists, Salas v. Liberty Mut. Fire Ins. Co., 272 So. 2d 1 (Fla. 1972), and our Supreme Court has made clear that this legislation “is statutorily intended to provide the reciprocal or mutual equivalent of automobile liability coverage” to insureds as “if the uninsured motorist had carried the minimum limits’ of an automobile liability policy.” Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229 (Fla. 1971).

Applying § 627.727 the Fourth District has held that UM coverage must extend to all lawful occupants of any automobile covered by the terms of an insured’s liability policy, and that such “coverage may not be limited by providing a narrower definition of ‘covered autos’ in the UM policy than in the liability policy.” Mosca v. Globe Indem., 693 So. 2d 674 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1150a]. Embracing the holding in Ropar v. Travelers Ins. Co., 422 S.E.2d 34 (Ga. Ct. App. 1992), the Mosca court concluded, in no uncertain terms, that the “the definition of ‘covered autos’ provided in the liability policy also determines the autos ‘covered’ for purposes of mandatory UM coverage.” Id.

Mosca is a “red cow”² that is binding on this Court, see Pardo v. State, 596 So. 2d 665 (Fla. 1992), and applying its holding here is not difficult. As discussed earlier, the Policy definition of a “covered auto” — for purposes of liability coverage — includes not only those vehicles owned by Decora — the Named Insured — but also autos “owned” by “employees” used in “your” [the insureds] business. And under Mosca any vehicle which fits the definition of a “covered auto” for liability purposes is deemed a “covered auto” for purposes of UM coverage. Thus, Guzman’s vehicle — which fits the definition of a “covered auto” for purposes of liability coverage — also is a “covered auto” for UM purposes.

Even though Mosca compels the conclusion that Guzman’s vehicle is a “covered auto” for UM purposes, Travelers insists that he still does not qualify for UM coverage because he is “not an insured under the policy’s liability portion.” Travelers’ Memo, p. 10. According to Travelers UM coverage is only available to persons who qualify as “insured” for liability coverage and Guzman — while driving his automobile — was not a defined “insured.” See Policy, Sec. II A. 1 b (2) (excluding from the definition of insured an “employee” operating a covered vehicle they themselves own).

It is true, as Travelers points out, that the purpose of the uninsured motorist statute is to require that insurers “offer uninsured motorist coverage coextensive with liability coverage provided in a policy.” St. Paul Fire & Marine Ins. Co. v. McDonald, 525 So. 2d 455 (Fla. 4th DCA 1988). For this reason a carrier is not required to provide UM coverage to persons who are not afforded liability coverage — a point made clear by each of the decisions Travelers relies upon. See, e.g., France v. Liberty Mut. Ins. Co., 380 So. 2d 1155 (Fla. 3d DCA 1980) (uninsured motorist coverage is not mandated if the individual does not qualify for liability coverage); Dairyland Ins. Co. v. Kriz, 495 So. 2d 892 (Fla. 1st DCA 1986) (“[b]ecause appellee was not provided liability coverage under the Dairyland policy, Dairyland was not required to, and did not, provide uninsured motorist coverage to her under its policy with her son”); Bolin v. Massachusetts Bay Ins. Co., 518 So. 2d 393 (Fla. 2d DCA 1987) (because Mr. Bolin was not included under liability coverage “he could be excluded from uninsured motorists coverage”).

Each of these cases, and the others relied on by Travelers, stand for the unremarkable proposition that because UM coverage must be provided “to all persons who are insured under a policy for basic liability coverage,” Gilmore v. St. Paul Fire & Marine Ins., 708 So. 2d 679, 681 (Fla. 1st DCA 1998) [23 Fla. L. Weekly D947a], it follows that if a person is not insured for liability coverage the carrier is not required to provide them UM coverage. Put simply, the only restriction imposed by Florida law is that the UM portion of the policy may not provide “less coverage” than offered by the liability portion of the policy. Young, supra at 83. A carrier need not provide more coverage.

That does not, however, mean that a carrier is legally precluded from offering UM coverage to persons who might not be “insured” under the liability provisions of a policy — precisely what Travelers did here. For whatever reason Travelers chose to define an “insured” for UM purposes as anyone occupying a “covered auto,” even though it knew (or clearly should have known) that under Florida law any vehicle “covered” for purposes of liability would — as a matter of law — be deemed “covered” for UM benefits. See Mosca, supra. And because Guzman was a person who “occupied” a “covered auto” he is a defined “insured” for purposes of UM coverage.

The bottom line is that Travelers was not obligated to provide UM coverage to Guzman under the circumstances here, as he is not a defined “insured” under the liability portion of the policy. So had Travelers defined an “insured” for UM purposes to be only those who meet the definition of an “insured” for liability purposes — thus making the definitions of an “insured” for both types of coverage simpatico — it would be entitled to a judgment in its favor. But no law or public policy prevented Travelers from providing UM coverage to a broader class of “insureds” than those afforded liability coverage, and it is not this Court’s job to rewrite its unambiguous policy in order to relieve it from what it now claims may have been oversight or an improvident bargain. Int’l Expositions, Inc. v. City of Miami Beach, 274 So. 2d 29-31 (Fla. 3d DCA 1973); (“courts may not rewrite, alter, or add to the terms of a written agreement between the parties and may not substitute their judgment for that of the parties in order to relieve one from an alleged hardship of an improvident bargain”). Rather the Court’s duty is to apply the contract as written — nothing more or less. Gulliver Sch., Inc., supra (“[w]here contracts are clear and unambiguous, they should be construed as written, and the court can give them no other meaning”).³

IV. Conclusion

Travelers may not have intended to provide UM coverage under the circumstances of this case, as it undoubtedly limited the definition of a “covered auto” for UM purposes to only those vehicles owned by the Named Insured. But because the definition of a “covered auto” is much broader for purposes of “liability” coverage, and Guzman’s personal automobile falls comfortably within that broader definition, Florida law requires that it be deemed “covered” for UM purposes as well. Mosca, supra. And Travelers elected to define an “insured” — for UM purposes — as anyone occupying any “covered auto”; not merely anyone defined as an “insured” under the Policy’s liability provisions — a definition Travelers could have lawfully employed. As a result, Guzman — as a person who occupied a “covered auto” — was afforded UM coverage so long as he was operating the vehicle within the course and scope of Decora’s business.

For the foregoing reasons it is hereby ORDERED:

1. Plaintiff’s Motion for Summary Judgment on coverage is GRANTED provided the Court concludes as a matter of law, or a jury concludes based on disputed facts, that Guzman was operating his vehicle within the course and scope of his employment with Decora at the time of the subject accident; and

2. Defendant’s Motion for Summary Judgment is DENIED.

__________________

¹In deciding this legal issue the Court will assume that Guzman was driving his vehicle within the course and scope of his employment — a question Travelers contends presents an issue of fact. The Court is not now deciding whether that issue may be adjudicated on Summary Judgment. See, e.g., St. Paul Fire & Marine Ins. Co. v. McDonald, 525 So. 2d 455 (Fla. 4th DCA 1988) (affirming trial court’s finding that employees were acting within course and scope of employment as a matter of law).

²A “red cow” is a term proverbially used to describe a case directly on point, a commanding precedent. See Corn v. City of Lauderdale Lakes, 997 F.2d 1369 (11th Cir. 1993).

³The Court notes that Travelers spends considerable time suggesting that Plaintiff represented to the insurance broker who placed this coverage (Nelson Vallin of B&G) that his then 86 year father — Guzman — “was too old to be involved with the business” and, as a result, he was not identified as a driver on the application for insurance and his personal automobile was not specified on the Policy. See Travelers’ Motion, pp. 3-5. Travelers, however, has not asserted any right to unilaterally rescind the Policy on the basis of a misrepresentation in the application or on any other ground. See, e.g., Certain Underwriters at Lloyd’s of London v. Jimenez, No. 3D15-54 (Fla. 3d DCA, June 15, 2016) [41 Fla. L. Weekly D1431a].