46 Fla. L. Weekly D1079b
GEICO INDEMNITY COMPANY, Appellant, v. BRIAN WALKER, as personal representative of the estate of SOPHIE C. WALKER and as assignee of the estate of ANDRES IGNACIO RODRIGUEZ GOMEZ, and CARLOS ENRIQUE GILL RAMIREZ a/k/a CARLOS GILL, Appellees. 4th District. Case No. 4D20-764. May 12, 2021. Appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; James Nutt, Judge; L.T. Case No. 50-2016-CA-004453-XXXX-MB. Counsel: Richard A. Weldy, B. Richard Young, and Adam A. Duke of Young, Bill, Boles, Palmer, Duke & Thompson, P.A., Miami, for appellant. Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, & Littky-Rubin, LLP, West Palm Beach, and Stephen A. Marino Jr., of Ver Ploeg & Marino, P.A., Miami, and Jeff M. Brown of LaValle, Brown, & Ronan, P.A., Boca Raton, for appellee Brian Walker, as personal representative of the estate of Sophie C. Walker and as assignee of the estate of Andres Ignacio Rodriguez Gomez.
(LEVINE, C.J.) In this case, we are asked to determine if a 1992 Porsche, made available to the driver by the owner to use and take care of for ten years without specific restrictions, was “furnished or available for regular use.” We find that although the Porsche was understood by all to be a collector’s car, it was still “available for regular use” to the non-owner driver and, as such, was not covered by the driver’s insurance policy. Thus, we find the trial court erred and reverse the trial court’s granting of partial summary judgment for appellee and direct the trial court to enter final judgment for appellant.
This appeal arises out of a single-vehicle automobile accident resulting in the death of both occupants: Andres Ignacio Rodriguez Gomez (“the driver”) and Sophie C. Walker (“the passenger”). In April 2016, the passenger’s estate filed a wrongful death action against the driver’s estate as well as the owner of the vehicle, the driver’s stepfather.1 At the time of the accident, the driver was insured under an automobile insurance policy with GEICO. However, the vehicle involved in the accident, a 1992 Porsche, was not listed under the GEICO policy as an insured vehicle. Instead, the vehicle was listed in the stepfather’s automobile insurance policy with Allstate, which also listed the driver as an insured driver on that policy.
GEICO denied coverage under the driver’s policy because the subject vehicle was not a listed vehicle on its policy. GEICO advised the driver’s estate that it disclaimed any liability and obligations under the policy with respect to the incident because the subject vehicle did not meet the definition of an owned, non-owned, or temporary substitute vehicle. At that time, Allstate had appointed defense counsel for the driver’s estate to defend against the wrongful death suit.
In August 2016, the driver’s and the passenger’s estates entered into a settlement agreement to resolve the wrongful death claim. The settlement reflected the parties’ belief that GEICO’s denial of coverage and refusal to defend were without merit. The settlement provided that the parties would submit to a binding arbitration to determine the amount of damages for the wrongful death claim against the driver’s estate. The arbitration resulted in an arbitration award of $7,722,150 in total damages for the passenger’s wrongful death claim against the driver. Pursuant to the terms of the settlement, the driver’s estate assigned its rights and causes of action against GEICO to the passenger’s estate. The passenger’s estate then dismissed its wrongful death claim as to the driver with prejudice.
Thereafter, appellee, as both the personal representative of the passenger’s estate and the assignee of the driver’s estate, amended the complaint to reflect the assignment of rights and to add claims against GEICO for breach of duty to defend (count II) and breach of duty to indemnify (count III). Relevant to this appeal, count III alleged that the driver’s GEICO insurance policy provided coverage for the underlying claim and that therefore GEICO breached its duty to indemnify the driver against the passenger’s covered claim and to make its policy limits available in the settlement of such claim.
In August 2018, GEICO moved for summary judgment, arguing that the undisputed facts reflected that there was no coverage under the GEICO policy for the subject loss. GEICO explained that its policy provided coverage for loss arising out of the ownership, maintenance, or use of the owned auto or a “non-owned auto.” There was no dispute that the subject vehicle did not qualify as an “owned auto” as defined under the driver’s GEICO policy. As for coverage for use of a “non-owned auto,” such was defined by the GEICO policy as follows:
Non-owned auto means a private passenger, farm or utility auto or trailer not owned by, furnished or available for regular use of either you or your relative, other than a temporary substitute auto. An auto rented or leased for more than 30 days will be considered as furnished or available for regular use.
(underlined emphasis added).
GEICO argued the above referenced language was clear and unambiguous and that under the undisputed facts, it was entitled to judgment in its favor as a matter of law as to coverage because the subject vehicle did not meet the definition of a “non-owned auto” under its policy. GEICO asserted that the facts established the driver’s possession, access to, and freedom to use the subject vehicle without restriction, such that the vehicle was “furnished or available” for the driver’s regular use. Specifically, GEICO pointed to the deposition testimony of the owner of the vehicle, the driver’s stepfather, which established that the stepfather gave the subject vehicle to the driver to use and take care of; that the driver had kept the subject vehicle for ten years; that the driver had his own set of keys to the vehicle; that the stepfather never restricted the driver’s use of the vehicle; that the driver had freedom to use it; and that how often the driver used the vehicle was left to the driver’s discretion.
Appellee filed his own motion for summary judgment on the same issue, arguing that the stepfather did not furnish or make the subject vehicle available for the driver’s regular use. Appellee asserted that the subject vehicle, a 1992 Porsche, was a collector’s vehicle which the driver used infrequently and which the driver understood was not intended to be used regularly.
At the summary judgment hearing, the trial court reasoned that the undisputed facts reflected that the car was “available” to the driver and that “he could have taken it anytime he wanted.” However, the trial court was concerned about the “regular use” language, noting that while the stepfather never told the driver he could not use the vehicle, the driver was aware of what kind of vehicle the 1992 Porsche was, such that this was an implicit restriction on the driver using this vehicle. The trial court agreed that the policy language defining a “non-owned auto” was unambiguous on its face but found an ambiguity “as applied.”
Ultimately, the trial court determined the subject vehicle qualified as a “non-owned auto” and therefore the GEICO policy provided coverage for the subject vehicle involved in the accident. The trial court denied GEICO’s motion for summary judgment and granted appellee’s motion as to coverage. Thereafter, the trial court entered final judgment, ruling that appellee would recover $100,000 from GEICO. GEICO appeals that ruling.
The standard of review for a ruling on summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Where an “appeal involves issues of contract and statutory construction decided by summary judgment, our review is de novo.” State Farm Mut. Auto. Ins. Co. v. Smith, 198 So. 3d 852, 855 (Fla. 2d DCA 2016).
GEICO first argues that while the trial court agreed that the policy language was unambiguous on its face, its ruling that the “non-owned auto” provision of the policy was ambiguous as applied to the facts was contrary to Florida law. GEICO further argues that the trial court therefore improperly construed the policy language against GEICO and concluded that the policy covered the driver’s use of the vehicle.
As GEICO contends, the phrase “furnished or available for regular use” is clear and unambiguous. See Valiant Ins. Co. v. Evonosky, 864 F. Supp. 1189, 1192 (M.D. Fla. 1994) (“A provision of an insurance policy is ambiguous only if reasonably intelligent persons would honestly differ as to its meaning, when considering it in the context of the entire policy. Where the language in an insurance policy is clear and unambiguous, however, the court must give effect to such language. We have read the exclusions in the policy . . . and believe that those exclusions clearly state, in common language, that coverage will not be afforded if the vehicle not specifically covered in the policy is furnished or available for that family member’s regular use.”); Lumbermens Mut. Cas. Co. v. Lesley, 433 So. 2d 1299, 1300 (Fla. 1st DCA 1983) (finding exclusionary policy language “furnished or available for your regular use” to be “plain and unambiguous so as to leave no room for construction”). Because the “non-owned auto” definition contained in the GEICO policy is unambiguous, which the trial court itself acknowledged, the trial court was required to construe it in accordance with its plain meaning.
In this regard, “[i]t is a fundamental rule of contract interpretation that a contract which is clear, complete, and unambiguous does not require judicial construction.” Imagine Ins. Co. v. State ex rel. Dep’t of Fin. Servs., 999 So. 2d 693, 696 (Fla. 1st DCA 2008) (citation omitted). As the supreme court has explained: “If the language used in an insurance policy is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning of the language used so as to give effect to the policy as it was written.” State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 569-70 (Fla. 2011) (citation omitted). “A provision is not ambiguous, however, simply because it is complex or requires analysis.” Id. at 570. (citation and internal quotation marks omitted). In this case, given the unambiguous nature of the policy language, the principles of contract interpretation did not apply. “It is fundamental that where a contract is clear and unambiguous in its terms, the court may not give those terms any meaning beyond the plain meaning of the words contained therein.” Dows v. Nike, Inc., 846 So. 2d 595, 601 (Fla. 4th DCA 2003).
The relevant portion of the provision of the GEICO policy defined a “non-owned auto” as a vehicle “not . . . furnished or available for regular use.” In other words, the relevant point of inquiry rests on whether the definition precluded coverage on the basis that the subject vehicle was either furnished or available for regular use. In Evonosky, the court considered the plain meaning of the term “available for the regular use,” explaining that “[i]n common usage, ‘available’ means: ‘suitable or ready for use’ and ‘readily obtainable; accessible’; and ‘regular’ means: ‘usual; normal; customary.’ ” 864 F. Supp. at 1191 (quoting The Random House Dictionary of the English Language (1967)). Black’s Law Dictionary also contains a definition of “regular use” as used in this very context which echoes this description. The definition states:
regular use. Insurance. A use that is usual, normal, or customary, as opposed to an occasional, special, or incidental use. · This term often appears in automobile-insurance policies in the definition of a nonowned automobile — that is, an automobile not owned by or furnished for the regular use of the insured. Nonowned automobiles are excluded from coverage under most liability policies.
Use, Black’s Law Dictionary (11th ed. 2019). Because the definition of a “non-owned” vehicle covered by the GEICO policy excluded those that are “furnished or available for regular use,” it necessarily precluded those non-owned vehicles which are ready for use; readily obtainable; and accessible for use that is usual, normal, or customary.
Here, the stepfather’s testimony established that he gave the subject vehicle to the driver to use and take care of; that the driver had kept the subject vehicle for ten years; that the driver had his own set of keys to the vehicle; that the stepfather never restricted the driver’s use of the vehicle; that the driver had freedom to use it; and that how often the driver used the vehicle was left to the driver’s discretion. Therefore, the undisputed facts reflected the driver’s possession, access to, and freedom to use the subject vehicle without restriction. While the stepfather arguably may not have furnished the subject vehicle to the driver for regular use, the subject vehicle was nevertheless ready for use; readily obtainable; and accessible to the driver for usual, normal, or customary use at his discretion, such that it was “available for regular use.” As such, because the subject vehicle was available for regular use, it did not meet the definition of a “non-owned auto” and was therefore not covered by the GEICO policy.
Because the “non-owned auto” provision of the GEICO auto insurance policy was unambiguous and the undisputed facts reflected the subject vehicle was available for regular use, we therefore conclude the trial court erred in determining that the subject vehicle met the definition of a “non-owned auto.” Where the policy language was not susceptible to more than one reasonable interpretation, given the commonly defined terms, the trial court erred in construing any “ambiguity” in the terms against GEICO in applying the facts of the case to the policy language. Thus, we reverse the final judgment and partial summary judgment as to count III of appellee’s complaint and remand with directions for the trial court to enter final judgment in favor of GEICO.
Reversed and remanded with instructions. (KUNTZ and ARTAU, JJ., concur.)
1The stepfather, Carlos Enrique Gill Ramirez, has not filed a brief in this appeal but was named as a defendant below and thus is included as an appellee pursuant to Florida Rule of Appellate Procedure 9.020(g)(2).* * *