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January 20, 2017 by admin

Insurance — Automobile — Exclusions — Damage to property being transported by insured

42
Fla. L. Weekly D178a
Top of Form

Insurance
— Automobile — Exclusions — Damage to property being transported by insured
— Trial court properly found that exclusion for damage to property being
transported by insured was applicable to exclude coverage for damage to
insured’s friend’s motorcycle which was in a trailer being hauled by insured
vehicle being driven by insured in which the friend was a passenger when the
trailer overturned

DENNIS
DUCKSBURY, Appellant, v. PROGRESSIVE EXPRESS INSURANCE COMPANY and PROGRESSIVE
SELECT INSURANCE COMPANY, Appellees. 4th District. Case No. 4D15-4520. January
18, 2017. Appeal from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Meenu Sasser, Judge; L.T. Case No. 502014CA013820XXXXMB.
Counsel: R. Matthews Miles, Jr. and Michael J. Walker, Holly Hill, for
appellant. Robert I. Buchsbaum of Kramer, Green, Zuckerman, Greene & Buchsbaum,
P.A., Hollywood, for appellees.

(CIKLIN,
C.J.) The instant appeal arises from an insurance coverage dispute within a
subrogation claim. Dennis Ducksbury (“Ducksbury”), the insured, appeals a final
judgment on a third party complaint entered in favor of Progressive Express
Insurance Company and Progressive Select Insurance Company (“Progressive”). We
affirm the trial court’s entry of final judgment in favor of Progressive and we
write to address the phrase “being transported by” as it is used in the subject
insurance policy.

In
the events leading up to the action below, Ducksbury and his friend were
planning a trip to Key West to participate in a motorcycle-related charity
event. The two planned to drive Ducksbury’s SUV part of the way while hauling
their motorcycles in a trailer. The friend secured his motorcycle in the
trailer with “tie downs” and the two headed south. Somewhere near Boynton
Beach, the trailer began to sway and then flipped, causing approximately
$15,000 in damage to the friend’s motorcycle.

The
friend submitted a claim to his insurance company, Allstate, which paid it.
Allstate then sued Ducksbury for subrogation. Progressive, Ducksbury’s insurer,
refused to indemnify and defend Ducksbury, leading Ducksbury to file a
third-party complaint against Progressive.

Progressive
responded, citing exclusion 10 of Ducksbury’s insurance policy. In pertinent
part, the exclusion provides:

Coverage under this Part I,
including our duty to defend, will not apply to any insured person for:

. . . .

10. property damage to
any property owned by, rented to, being transported by, used by, or in the
charge of that insured person.

(Emphasis
in original.) Progressive then moved for summary judgment based on the
exclusion, contending that the motorcycle was “being transported by” Ducksbury
at the time of the incident. The trial court granted summary judgment and
entered final judgment in favor of Progressive.

On
appeal, Ducksbury argues that a proper reading of the phrase “being transported
by” indicates that possessory control of the property is required before the
exclusion can apply. He further contends that, because the friend never
relinquished control of the motorcycle, the friend was the one transporting it,
and thus the exclusion does not apply. Based on the plain language of the
exclusion, we must affirm.

“[C]onstruction
of an insurance policy [ ] is a question of law subject to de novo review.” Wash.
Nat’l Ins. Corp. v. Ruderman
, 117 So. 3d 943, 948 (Fla. 2013). When it
comes to insurance contract interpretation, the Florida Supreme Court has
explained as follows:

Where the language in an
insurance contract is plain and unambiguous, a court must interpret the policy
in accordance with the plain meaning so as to give effect to the policy as
written. In construing insurance contracts, courts should read each policy as a
whole, endeavoring to give every provision its full meaning and operative
effect. Courts should avoid simply concentrating on certain limited provisions
to the exclusion of the totality of others. However, policy language is
considered to be ambiguous if the language is susceptible to more than one
reasonable interpretation, one providing coverage and the other limiting
coverage.

Id.
(internal citations, quotation marks, and alterations omitted). “The terms of
an insurance policy should be taken and understood in their ordinary sense and
the policy should receive a reasonable, practical and sensible interpretation
consistent with the intent of the parties — not a strained, forced or
unrealistic construction.” Gen. Acc. Fire & Life Assur. Corp. v. Liberty
Mut. Ins. Co
., 260 So. 2d 249, 253 (Fla. 4th DCA 1972).

“Transport”
is not defined in the policy. However,

The lack of a definition of a
term in a policy does not render it ambiguous or in need of interpretation by
the courts, but rather such “terms must be given their every day meaning and
should be read with regards to ordinary people’s skill and experience.” Harrington
v. Citizens Prop. Ins. Corp
., 54 So. 3d 999, 1003 (Fla. 4th DCA 2010)
(citation omitted). “Florida courts will often use legal and non-legal
dictionaries to ascertain the plain meaning of words that appear in insurance
policies.” Id. (citation omitted).

Miglino
v. Universal Prop. & Cas. Ins. Co
., 174 So. 3d 479, 481 (Fla.
4th DCA 2015).

There
are no cases interpreting the phrase “being transported by” as it is used in
the exclusion at issue in this case or in any individual’s insurance policy.
Black’s Law Dictionary defines “transport” as “[t]o carry or convey (a thing)
from one place to another.” Black’s Law Dictionary (10th ed. 2014).
Similarly, a non-legal dictionary defines “transport” as “[t]o carry from one
place to another.” The American Heritage Desk Dictionary 985 (1981).

We
see only one reasonable interpretation of the language. The plain meaning of
“being transported by” encompasses the friend’s motorcycle as being carried or
conveyed to Key West by Ducksbury while it was inside a trailer being pulled by
a vehicle that Ducksbury was driving. No further interpretation of the very
simple, unambiguous language is required.

As
found by the trial court and asserted by Progressive on appeal, Ducksbury seeks
to interject words and meanings not present in the language of the exclusion
when he argues that the exclusion must be read to require that the insured was
exercising dominion and control over the property being transported. Exclusion
10 clearly contemplates the scenario at hand and thus we affirm.

Affirmed.
(TAYLOR,
J., and LEE, ROBERT W., Associate Judge, concur.)

* *
*

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