24 Fla. L. Weekly Supp. 27c

Online Reference: FLWSUPP 2401LIRAInsurance — Automobile — Uninsured motorist — Exclusions — Insured who was the “first person shown” as a named insured on the policy and who was injured while riding motorcycle owned by h er when motorcycle was rear-ended by vehicle not owned by the insured or her spouse was entitled to coverage under policy — Although policy excluded coverage for bodily injury to insured while occupying a vehicle owned by the insured or any resident relative if the vehicle was not the insured’s car or a newly acquired car, policy contained an exception to the exclusion for circumstance in which the named insured and that named insured’s spouse were injured while occupying or being struck by a motor vehicle not owned by one or both of them — No merit to argument that exception was intended to apply only when first named insured or spouse was injured in or by vehicle owned by resident relative where exception does not even mention resident relatives — Argument that it is unreasonable to interpret exception in manner that swallows exclusion is legally irrelevant and factually incorrect

KATIUSKA LIRANZA-SUAREZ, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 14-14506. April 14, 2016. Michael A. Hanzman, Judge. Counsel: Joel E. Berstein, Hollywood. Jonathan H. Groff, South Miami.

ORDER ON CROSS-MOTIONS FORSUMMARY JUDGMENT

I. Introduction

Before the Court are the parties’ cross-motions for summary judgment which raise one — and only one question: Does the automobile insurance policy issued by Defendant State Farm Mutual Automobile Insurance Company (“Defendant” or “State Farm”), provide uninsured motorist coverage to the insured — Plaintiff Katiuska Liranza-Suarez (“Plaintiff”) — for injuries sustained when a motorcycle she owned — and was riding — was rear-ended? Because the Court finds that the policy unambiguously provides coverage, Plaintiff’s “Motion for Summary Judgment” is granted, and Defendant’s cross-motion for “Final Summary Judgment” is denied.

II. Undisputed Facts

Plaintiff, the “first person shown” as a named insured on the policy,¹ was injured on September 8, 2013 while riding on a motorcycle she owned and operated — a vehicle that did not meet the policy’s definition of “your car” or a “a newly acquired car.” When she filed a claim seeking to recover uninsured motorist benefits, State Farm denied coverage based upon an “exclusion” which provides:

THERE IS NO COVERAGE:

. . . .

2. FOR AN INSURED WHO SUSTAINS BODILY INJURY:

a. WHILE OCCUPYING A VEHICLE OWNED BY YOU OR ANY RESIDENT RELATIVE IF IT IS NOT YOUR CAR OR A NEWLY ACQUIRED CAR; OR

b. THROUGH BEING STRUCK BY A VEHICLE OWNED BY ANY RESIDENT RELATIVE.

See Policy, p. 28.² The policy, however, contains an “exception” to this “exclusion” which plainly states:

This exclusion does not apply to the first person shown as a named insured on the Declarations Page and that named insured’s spouse who resides primarily with that named insured, while occupying or through being struck by a motor vehicle not owned by one or both of them.

Id. Thus, as plainly written, the policy carves out an “exception” to the “exclusion” in cases where the “first person shown” as a named insured (i.e., Plaintiff) or their spouse, are injured “through being struck” by a motor vehicle so long as that vehicle was “not owned by” either of them. This is the precise scenario here, as Plaintiff (the first named insured) was undeniably “struck by a motor vehicle” not owned either by her or her spouse. As result, Plaintiff insists that the “exception” to the “exclusion” is triggered and coverage therefore exists. The Court agrees.

III. Analysis

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 S616b]; 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). Consideration of extrinsic evidence is a rare matter of last resort to be employed only when an ambiguity cannot be resolved without “outside aid.” Friedman v. Virginia Metal Products Corp., 56 So. 2d 515, 517 (Fla. 1952).

To determine that the policy affords coverage for the accident at issue here the Court need not do anything other than apply the policy as plainly written, as it says — in no uncertain terms — that the “exclusion” relied upon by State Farm “does not apply” to the “first person shown as a named insured” (i.e., Plaintiff) if “struck by a motor vehicle” not owned by her or her spouse. This is precisely what occurred. And the Court’s task is to apply the parties’ contract as written, not to “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”). There is simply nothing ambiguous about the “exception” to the “exclusion” at issue here, and even if there were an ambiguity it would be resolved in favor of coverage. See Penzer, supra.

State Farm acknowledges — as it must — that the “exception” says what it says, and does not suggest that the facts of this case fall outside the ambit of the “exception” — as plainly written. Rather, State Farm claims that the “exception” was “intended” to the “give back” coverage to the “first couple” only “when they were injured in a car owned by a resident relative,” or “struck by a vehicle owned by a relative resident.” See State Farm Memorandum, p. 8. According to State Farm this is what the “exception” was “designed” to do. Id. The “exception” of course says nothing of the sort, and does not even mention — let alone restrict its application to — instances where the injury occurred in — or is caused by — a vehicle owned by a “resident relative.” It provides — again clearly and unambiguously — that the “exclusion” is inapplicable if either the “first named insured” or their “spouse” (i.e., the “first couple”) is injured “through being struck by a motor vehicle not owned by one or both of them” — not only by a vehicle owned by a “resident relative.”

State Farm’s next insists that it is unreasonable to apply the plain language of this “exception” because doing so “swallow[s] the exclusion.” See State Farm Memo, p. 9. This point is legally irrelevant and factually incorrect. As a legal matter, if State Farm chooses to draft an “exception” to an “exclusion” that eviscerates the “exclusion,” the Court is not permitted to rewrite its contract in order to relieve it of what it may claim to have been an unwise decision. And as a factual matter, State Farm’s premise is clearly incorrect, as the “exception,” as written, does not “swallow the exclusion” at all. It only “gives back” otherwise excluded coverage to the “first couple,” not to anyone who qualifies as an “insured” under the policy. The “exclusion” and “exception” work hand in glove.

IV. Conclusion

If — as it now contends — State Farm really “intended” that the “exception” to the “exclusion” apply only when the “first couple” (or one of them) were injured in — or by — a vehicle “owned by any resident relative,” it was of course free to draft the “exception” in a manner that would reflect that “intent.” For whatever reason it chose not to do so, and this Court will not judicially engraft onto its contract the limitation allegedly “intended”; a limitation that a reasonable insured would not be on notice of. Or, to put it another way, no “man on the street” would read this “exception” as applying only when the insured was injured by — or in — a vehicle owned by a “resident relative.” State Farm Fire & Cas. Co. v. Castillo, 829 So. 2d 242 (Fla. 3d DCA 2002)[27 Fla. L. Weekly D1845a] (“[i]n accordance with well-established rules of interpretation, terms utilized in an insurance policy should be given their plain and unambiguous meaning as understood by the ‘man-on-the-street’ ”).

Based upon the foregoing, it is hereby,

ORDERED AND AJUDGED:

1. Plaintiff’s “Motion for Summary Judgment” is GRANTED.

2. Defendant’s Motion for “Final Summary Judgment” is DENIED.

__________________

¹Number 973726359, which State Farm has admitted was issued to Plaintiff and in force on the date of the accident.

²This “exclusion” is authorized by Florida Statute 627.727(9)(d). See also, Grant v. State Farm Fire & Cas. Co., 638 So. 2d 936 (Fla. 1994).