39 Fla. L. Weekly D2301a
court erred in entering summary judgment, determining permissive user of
automobile was covered under automobile owner’s umbrella policy, where an issue
of material fact remains regarding whether the insured satisfies umbrella
policy’s requirement that he could be “legally obligated” to pay damages —
Trial court never determined the legal obligation of insured, who was not named
as a defendant
PROCTOR and UNITED SERVICE AUTOMOBILE ASSOCIATION a/k/a USAA, Appellees. 4th
District. Case No. 4D13-4320. November 5, 2014. Appeal of a non-final order from
the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael
L. Gates, Judge; L.T. Case No. 09-57134CACE12. Counsel: Sharon C. Degnan of
Kubicki Draper, Fort Lauderdale, for appellant. Nancy W. Gregoire of Kirschbaum,
Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Matthew D. Hellman
of Matt Hellman, P.A., Plantation, for appellee Melanie Manzo-Pianelli. Charles
M-P George of the Law Offices of Charles M-P George, Coral Gables, and
Christopher Wadsworth and Daniel L. Margrey of Wadsworth Huott, LLP, Miami, for
determining that a permissive user of a motor vehicle was covered under an
umbrella policy issued by Allstate. We reverse, as an issue of material fact
remains regarding whether the insured could be “legally obligated” to pay
damages, which is necessary for there to be coverage for the permissive user
under the policy.
Neil Seiden, was involved in an automobile accident with Melanie Manzo-Pianelli.
Seiden had an insurance policy with State Farm that provided $100,000 in
coverage and an umbrella policy with Allstate that provided $1,000,000 in
coverage. State Farm tendered its policy limits to Manzo-Pianelli, and
Manzo-Pianelli executed a partial release in favor of Seiden. Manzo-Pianelli
sought to recover against Allstate, but Allstate sent a letter denying coverage.
for underinsured motorist benefits. USAA filed a third party complaint against
Allstate, Manzo-Pianelli, and Proctor, seeking a determination as to the
“priority of coverage.” In July 2012, Manzo-Pianelli amended her complaint to
add a cause of action against Proctor. Seiden was never named as a defendant by
any of the parties.
support of their respective motions. Manzo-Pianelli argued there was coverage
under the following provision:
Excess Liability Insurance Coverage XL
Allstate will pay damages which an insured person becomes legally
obligated to pay because of personal injury, bodily injury or property damage,
subject to the terms, conditions and limits of this policy. Personal injury,
bodily injury and property damage must arise from a covered occurrence. . .
Losses We Cover Under Coverage XL
We will cover an occurrence arising only out of:
1. Personal activities of an insured person, including the
permissive use of a land motor vehicle or watercraft owned by an insured person.
a) you, and any other person who is named on the Policy
b) any person related to you by blood, marriage, or adoption who is
a resident of your household; or
c) any dependent person in your care, if that person is a resident
of your household
but persons defined in 6. b) and 6. c) are not insured persons for
any liability arising out of their ownership, maintenance or use of any motor
vehicle or any watercraft.
was not a resident relative of Seiden.
under the policy, which limited coverage to “damages which an insured
person becomes legally obligated to pay.” Because Seiden, the insured
person, was not named as a defendant, he could never be “legally obligated” to
pay damages since the statute of limitations had run.
in favor of Manzo-Pianelli. The court found that Proctor was an omnibus insured
and that her actions were covered under the policy as a permissive user.
Alternatively, Proctor’s actions were covered because any negligence on her part
would be imputed to Seiden under the vicarious liability and dangerous
instrumentality doctrines. The court found it irrelevant that Seiden was not
joined as a party, as the issue presented to the court involved only construing
the Allstate policy.
interpretation of an insurance contract and the determination of whether the law
requires the insurer to provide coverage.” Valero v. Fla. Ins. Guar.
Ass’n, 59 So. 3d 1166, 1167-68 (Fla. 4th DCA 2011) (citation omitted).
Summary judgment is appropriate where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law.
Fla. R. Civ. P. 1.510(c).
disputed issue of material fact regarding whether Seiden is — or can ever be —
“legally obligated” to pay Proctor’s claim. The umbrella policy limits coverage
to “damages which an insured person becomes legally obligated to pay . . . .”
The trial court never determined Seiden’s legal obligation. Issues relevant to
this determination include whether the statute of limitations to sue Seiden has
run, the applicability of the relation-back doctrine if Seiden were added as a
defendant, whether Allstate misrepresented coverage in its letter to Proctor,
and whether tolling applies. During oral argument, the appellees claimed there
is the potential that Seiden could still be held liable. Also during oral
argument, Allstate admitted that if Seiden had been named as a defendant,
Allstate would have had a legal obligation to pay the claim. If no action may be
maintained against Seiden, it follows then that there would be no liability or
coverage under the umbrella policy for the permissive user. Peoples v. Fla.
Ins. Guar. Ass’n, 313 So. 2d 40 (Fla. 2d DCA 1975).
Levine, JJ., concur.)
* * *