5 Fla. L. Weekly Supp. 313a

Insurance — Automobile liability — Coverage — Rental car company contending that automobile accident involving car rented by insured and driven by authorized party at time of accident triggered liability coverage of insured’s policy, and that therefore insurer owes duty to indemnify rental car company — Because liability coverage provisions of insurance policy, which extend coverage to use by insured of newly acquired vehicle, temporary substitute vehicle or non-owned car, were not triggered, duty to indemnify rental car company was not triggered — Facts in record preclude characterization of rental car as newly acquired vehicle, temporary substituted vehicle, or non-owned car — Where policy defines non-owned car as car not leased in name of insured or member of household, argument that there is difference between leased vehicle and rented vehicle is rejected — Court will not accord varying definitions to leased vehicle and rented vehicle in absence of legal authority to contrary — Because rental vehicle was leased by named insured, rental car is not covered by policy — Rented vehicle does not fall within policy definitions of what constitutes non-owned car

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, v. BEVERLY TOLBERT, MARK ANTHONY GRANT, BUDGET RENT-A-CAR SYSTEMS, INC., a foreign corporation, AIG INSURANCE COMPANY, ALTHEA MONTGOMERY, and JOSEPHINE BLACK, Defendants. 13th Judicial Circuit in and for Hillsborough County, General Civil Division. Case No. 97-3656, Division O. November 19, 1997. William Fuente, Judge. Counsel: H. Irene Higginbotham, St. Petersburg, for Plaintiff. Raymond A. Haas, Tampa, for Defendant Budget Rent-A-Car, Inc.

ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT ON COUNT III ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT ON COUNT III

THIS CAUSE came before the Court for hearing on October 30, 1997 on Plaintiff’s Motion for Final Summary Judgment Against Defendant Budget Rent-A-Car (hereinafter Budget) on Count III of Plaintiff’s Complaint for Declaratory Judgment, and on Defendant Budget’s Motion for Summary Judgment Against Plaintiff. Having considered the motions, the record, including the Tolbert/State Farm insurance policy, and arguments of counsel; having conducted independent legal research, and being otherwise informed in the premises, the Court grants Plaintiff’s motion and denies Defendant’s motion for the reasons that follow.

RELEVANT FACTUAL BACKGROUND

Plaintiff issued an automobile insurance policy to Defendant Beverly Tolbert which provided coverage for a 1995 Nissan 240 SX. This vehicle was not involved in the automobile accident which is the subject of this action. On or about April 13, 1996, Tolbert rented a 1996 Nissan Pathfinder (hereinafter referred to as “rental car”) from Budget. (See Budget’s Answer at paras. 9, 10; Deposition of Tolbert at page 7, lines 2-18; page 8, lines 1-7; Deposition of Grant at page 7, line 6). Budget is the owner of the rental car and is self-insured. (See Budget’s Answer at 15, 16). Defendant Mark Anthony Grant was involved in an automobile accident while he was operating the rental car. (See Deposition of Grant at page 5, lines 4-10). Tolbert’s Nissan 240SX, insured by the policy, was fully operable. (See Deposition of Tolbert at page 10, lines 10-18). Plaintiff contends that Budget does not qualify as an “insured” under the policy, because the facts of the accident do not trigger the liability coverage of the policy, and that therefore Plaintiff owes no duty to defend or indemnify Defendant. (See generally Plaintiff’s Motion for Summary Judgment; State Farm Car Policy Form 9810.6). Defendant maintains that the liability coverage provisions of the policy are triggered and that Plaintiff must indemnify Defendant. (See generally Defendant’s Motion for Summary Judgment).

DISCUSSION

Applicable Standard for Summary Judgment

It is appropriate for a court to grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). It is not the function of this Court to ascertain whether the Plaintiff can prove its case; this Court’s function “solely is to determine whether the pleadings, depositions, and affidavits conclusively show that Plaintiff cannot prove [its] case.” See Crandall v. Southwest Florida Blood Bank, 581 So. 2d 593, 595 (Fla. 2d DCA 1991) (emphasis added) (citing Williams v. Florida Realty & Management Co., 272 So. 2d 176 (Fla. 3d DCA 1973)); See also Edenfield v. B & I Contractors, Inc., 624 So. 2d 389, 391 (Fla. 2d DCA 1993) (holding that the burden is on the moving party to demonstrate conclusively that the non-moving party cannot prevail); Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991) (same). This Court “must draw every possible inference in favor of the party against whom summary judgment is sought.” See Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) (citing Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977); Holl v. Talcott, 191 So. 2d 40 (Fla. 1966) (the burden of proving the nonexistence of a genuine triable issue is on the party moving for summary judgment; moving party’s papers should be strictly construed, whereas opposing party’s papers should be liberally construed)), cert. denied, 232 So. 2d 181 (Fla. 1969). A court should not grant summary judgment “unless the facts are so crystallized that nothing remains but questions of law.” Moore, 475 So. 2d at 668 (citing Shaffran v. Holness, 93 So. 2d 94 (Fla. 1957) (emphasis added)). “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues,” it becomes a factual issue to be determined at trial. Moore, 475 So. 2d at 668 (citing Williams v. Lake City, 62 So. 2d 732 (Fla. 1953); Crovella v. Cochrane, 102 So. 2d 307 (Fla. 1st DCA 1958)).

This Court has examined the motions and the record and determines that Plaintiff has sustained its burden and that there are no genuine issues of material fact which would preclude the entry of summary judgment. The only issue implicated pertains to the interpretation of the insurance policy (contract) which is a question of law that can be resolved by the Court.

INSURANCE POLICY

“When the language of an insurance policy is clear and unambiguous it must be accorded its natural meaning.” Dixie Insurance Co. v. Beaudette, 474 So. 2d 1264, 1265 (Fla. 5th DCA 1985) (citing Sanz v. Reserve Insurance Co. of Chicago, Illinois, 172 So. 2d 912 (Fla. 3d DCA 1965)). An ambiguity in an insurance policy “arises when more than one interpretation `may fairly be given’ to a policy provision.” Ellsworth v. Insurance Co. of North America, 508 So. 2d 395 (Fla. 1st DCA 1987) (quoting Traveler’s Insurance Co. v. C.J. Gayfer’s & Co., Inc., 366 So. 2d 1199, 1201-02 (Fla. 1st DCA 1979)). The mere failure of a policy to define a term does not necessarily render that term ambiguous. Jefferson Insurance Co. of New York v. Sea World of Florida, Inc., 586 So. 2d 95, 97 (Fla. 5th DCA 1991) (citation omitted).¹

The policy provisions in the case at bar are not ambiguous, and they must be accorded their natural meaning. The liability coverage of the policy extends to the use by an insured of a newly acquired vehicle, a temporary substitute vehicle, or a non-owned car. (See Policy Form 9810.6). Section I, p. 6 of the policy contains the following definitions:

Insured – means the person, persons or organization defined as insureds in the specific coverage . . .

Newly Acquired Car – means a car newly owned by you or your spouse.

Non-Owned Car – means a car not owned by or registered or leased in the name of:

1. you . . . .

3. any other person residing in the same household as you . . .

Temporary Substitute Car – means a car not owned by you or your spouse, if it replaces your car for a short time. Its use has to be with the consent of the owner. Your car has to be out of use due to its breakdown, repair, servicing, damage or loss. A temporary substitute car is not considered a non-owned car.

You or Your – means the named insured or named insureds shown on the declarations page.²

Your Car – means the car or the vehicle described on the declarations page.

(See Policy Form 9810.6, Section I, p. 6) (emphasis supplied).

The policy defines who is an insured as follows:

Who is an Insured

When we refer to your car, a newly acquired car or a temporary substitute car, insured means:

1. you;

4. any other person while using such a car if its use is within the scope of consent of you . . . and . . . .

5. any other person or organization liable for the use of such a car by one of the above insureds.

When we refer to a non-owned car, insured means:

1. the first person named in the declarations . . . .

3. their relatives; and

4. any person or organization which does not own or hire the car but is liable for its use by one of the above persons.

(See Policy Form 9810.6 at p. 3, 4 Section I) (emphasis supplied).

In order to ascertain whether Grant or Budget qualifies as an “insured,” the Court must first determine whether the rental car constitutes a “newly acquired car,” “temporary substitute car,” or “non-owned car.”

The facts and circumstances of this case do not trigger the coverage provisions of the insurance policy. Under facts presented in the record, Tolbert is an “insured” as defined by the policy. However, the rental car does not qualify as a newly acquired car, a temporary substitute or a non-owned car. At the hearing on this matter and in their memoranda of law, the parties appeared to agree that the rental car did not constitute a newly acquired car or a temporary substituted car. Moreover, the facts before the Court preclude the characterization of the rental car as either a newly acquired vehicle or a temporary substituted vehicle. This is evident from an application of the plain meaning of the unambiguous terms of the policy. Defendant however, contends that it was a non-owned car. (See Defendant’s Motion for Summary Judgment at paras. 18-25; Transcript of Hearing at 24-32). Pursuant to the policy, a “non-owned car” is a car not owned, registered by, or leased in the name of the insured or a member of her household. (See Policy Form 9810.6 Section I, p. 9).

Defendant contends that “there is a big difference between a leased vehicle and a rented vehicle” (Transcript of Hearing at 24, 25), however, counsel has not directed the Court to any legal authority which supports this proposition. Defendant’s reliance on Section 319.14, Florida Statutes for a definition of “lease vehicle” is misplaced, inasmuch as that section pertains strictly to titling requirements for certain types of vehicles. It strains logic to apply the definition of “leased vehicle” in a statute wholly irrelevant to the instant case. This Court’s research has not revealed the existence of any authority permitting such an application or any reported case in which a court construes or distinguishes the terms “lease” and “rent.” In fact, courts appear to treat these terms as synonymous, utilize them interchangeably, and effectuate their plain meaning. See e.g. State Farm Mutual Automobile Insurance Company v. American Hardware Mutual Insurance Co., 345 So. 2d 726, 727 (Fla. 1977); Glover v. Scamp Auto Rental I, Inc., 682 So. 2d 562, 563 (Fla. 2d DCA 1995). Moreover, Section 627.7263, Florida Statutes pertains to a rental and leasing driver’s primary insurance and makes no distinction between the terms rent and lease. The statute refers to a “rental or lease agreement between the lessee and the lessor.” The statute does not contain any language which could reasonably lead a court to conclude that a lessor or renter of a motor vehicle, a lease or rental agreement, and the act of leasing or renting are not synonymous pairs of terms. In the absence of legal authority to the contrary, this Court will not accord varying definitions to these terms.

The rental vehicle was leased in Tolbert’s name. Grant was listed as authorized driver. (See Deposition of Beverly Tolbert at page 6, lines 16-25, page 7, line 1) (lease agreement was signed by Tolbert); (see same deposition at page 9, lines 13-20) (lease agreement listing Grant as authorized driver)). Accordingly, the rental vehicle does not fall within the policy definition of what constitutes a “non-owned car.” “[I]t is specifically ruled out because” it was leased in Tolbert’s name, “the named insured.” See e.g. State Farm Mutual Automobile Insurance Co. v. Holland, 296 So. 2d 100, 102 (Fla. 1st DCA 1974) (construing policy, applying policy definitions at issue and reasoning as follows: “Was it a non-owned automobile? We do not consider that it comes within the policy definition of that term for two reasons, either of which rules it out. First, it is specifically ruled out because the Cadillac was registered in Joseph’s name, the named insured in the Chevrolet policy; and second, the Cadillac was owned by James who was a relative residing in the same household”); See also American Employers Insurance Co. v. Yeomams, 356 So. 2d 1281, 1285 (Fla. 2d DCA 1978) (interpreting policy, applying policy definition of terms and determining that the automobile in question “does not come within the Allstate policy definition of `trailer’ and is not a `non-owned automobile’ for which liability coverage is afforded”); See generally State Farm Mut. Auto. Ins. v. Swetokos, 566 So. 2d 901 (Fla. 4th DCA 1990) (interpreting policy, applying policy definition of terms and determining that insured’s son did not qualify as an “insured” and the accident involved a “non-owned vehicle”); Government Employees Insurance Co. v. Wright, 543 So. 2d 1320 (Fla. 4th DCA 1989) (interpreting policy, applying policy definition of terms and determining that the automobile in question was neither an “owned nor a non-owned” automobile “as defined by the policy”), rev. denied, 551 So. 2d 464 (Fla. 1989); St. Paul Fire & Marine Ins. v. McDonald, 525 So. 2d 455, 457 (Fla. 4th DCA 1988) (construing policy which implicated a provision somewhat similar to that which is at issue in the case at bar: “We’ll cover autos you don’t own, lease, hire or borrow . . . .”; agreeing with trial court’s position that the policy afforded uninsured motorist coverage because the automobile in question was covered as a non-owned vehicle as described under the policy and that there was no genuine issue of material fact).

Defendant misconstrues Allstate Ins. v. RJT Enterprises, 692 So. 2d 142 (Fla. 1997). Assuming that a policy provides coverage, Section 627.7263, Florida Statutes permits lessors to shift to lessees the duty to provide primary insurance coverage or indemnification to the extent of the financial responsibility requirements. See id. (answering certified question prefaced as follows: “assuming that the renter’s insurer owes a duty of defense and indemnification to its insured . . .”).

If the policy in the instant case provided coverage, then Plaintiff’s duty to indemnify would be implicated. If the coverage provisions of the policy are not triggered, then Plaintiff’s duty to indemnify also is not triggered.

In light of the foregoing and upon applying the “plain, unambiguous language of the policy,” the Court determines that the rental vehicle is not covered by the policy because it was leased by the named insured. See e.g. Fidelity and Casualty Company of New York v. Fonseca, 358 So. 2d 569, 570-71 (Fla. 3d DCA 1978) (applying “the plain, unambiguous language of the policy”; and determining that the policy providing coverage for a non-owned automobile “did not, as a matter of law, cover the vehicle driven by the named insured, which was owned by her husband . . .”), cert. denied, 365 So. 2d 711 (Fla. 1978); see also Policy Form 9810.6, Section I, p. 6.

Having determined that the coverage provisions of the policy are not applicable to the facts and circumstances of this case, it is not necessary for this Court to address the exclusionary provision of the policy, which Plaintiff claims also precludes coverage in the instant case, or any of the issues raised by the parties germane to that provision. (See Plaintiff’s Memorandum of Law at 6, 7); (See also Policy Form 9810.6 at p. 6 Section I) (coverage does not apply “for liability assumed by the insured under any contract or agreement”).

There are no genuine issues of material fact which preclude the entry of summary judgment. It is therefore

ORDERED and ADJUDGED that

1. Final Summary Judgment is entered for Plaintiff.

2. Final Summary Judgment for Defendant is DENIED.

3. Plaintiff owes no duty to defend or indemnify Defendant Budget Rent-A-Car because the claims fail to trigger its insuring agreement.

The Court reserves jurisdiction to tax fees and costs, if applicable.

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¹The failure of the insurance policy to define the term “lease” does not render the provision containing the term ambiguous.

²Any reference to “you” or “your” pertains to Tolbert since she is the named insured. Grant is not listed on the declarations page of the policy. (See Policy # 486 3582-A31-10B, Declarations Page).

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