27
Fla. L. Weekly Fed. C239aTop of Form
Fla. L. Weekly Fed. C239aTop of Form
Insurance
— Corporate general liability — Duty to indemnify — District court properly
entered summary judgment finding that insurer did not owe duty to indemnify or
defend insured LLC or other defendants against a negligence suit arising out of
accident in which motorcycle was struck by vehicle owned and driven by LLC member
and insured under member’s personal auto policy — Text of endorsement to
policy expanding coverage to include certain categories of automobiles included
exclusion clause explaining coverage was only provided if “you do not have any
other insurance available to you which accords the same or similar coverage” —
Term “similar coverage” was not ambiguous and clearly applied to coverage
similar in type, not in amount — Coverage was excluded where member had
personal auto policy that included protection against the same risks as the
endorsement
— Corporate general liability — Duty to indemnify — District court properly
entered summary judgment finding that insurer did not owe duty to indemnify or
defend insured LLC or other defendants against a negligence suit arising out of
accident in which motorcycle was struck by vehicle owned and driven by LLC member
and insured under member’s personal auto policy — Text of endorsement to
policy expanding coverage to include certain categories of automobiles included
exclusion clause explaining coverage was only provided if “you do not have any
other insurance available to you which accords the same or similar coverage” —
Term “similar coverage” was not ambiguous and clearly applied to coverage
similar in type, not in amount — Coverage was excluded where member had
personal auto policy that included protection against the same risks as the
endorsement
SOUTHERN-OWNERS INSURANCE COMPANY,
Plaintiff-Counter Defendant-Appellee, v. EASDON RHODES & ASSOCIATES LLC, et
al., Defendants-Counter Claimants, LINNIE D. RHODES, Defendant, DAVID W. MOORE,
DENISE MOORE, Defendants-Counter Claimants-Appellants. 11th Circuit. Case No.
14-15386. September 29, 2017. Appeal from the U.S. District Court for the
Northern District of Florida (No. 3:12-cv-00601-RV-EMT).
Plaintiff-Counter Defendant-Appellee, v. EASDON RHODES & ASSOCIATES LLC, et
al., Defendants-Counter Claimants, LINNIE D. RHODES, Defendant, DAVID W. MOORE,
DENISE MOORE, Defendants-Counter Claimants-Appellants. 11th Circuit. Case No.
14-15386. September 29, 2017. Appeal from the U.S. District Court for the
Northern District of Florida (No. 3:12-cv-00601-RV-EMT).
(Before TJOFLAT and ROSENBAUM,
Circuit Judges, and GOLDBERG,* Judge.)
Circuit Judges, and GOLDBERG,* Judge.)
(TJOFLAT, Circuit Judge.) This case
arises from a dispute over the scope of the insurance coverage provided by a
standard form Hired Auto and Non-Owned Auto Liability Endorsement to a
corporate general liability insurance policy (the “Endorsement”) issued by
Southern-Owners Insurance Company (“Southern-Owners”) to Easdon Rhodes &
Associates, LLC (“Easdon Rhodes”). Following an auto accident involving one of
its members, Joshua Rhodes, Easdon Rhodes was named as one of several
defendants in a state court negligence action filed by David Moore, who
suffered serious injuries in the crash.1 Southern-Owners agreed to defend the
suit in state court but reserved its rights to deny coverage under the terms of
the Endorsement. Subsequently, Southern-Owners filed an action in the United
States District Court for the Northern District of Florida seeking a
declaratory judgment absolving it of the duty to indemnify or defend Easdon
Rhodes, or the other defendants, against Moore’s negligence suit. After
Southern-Owners moved for summary judgment, the District Court held that the
vehicle driven by Joshua Rhodes did not qualify for coverage under the terms of
the Endorsement, and, even if the vehicle had qualified, the existence of a
separate insurance policy also covering the accident triggered the
Endorsement’s exclusion clause absolving Southern-Owners of its duties under
the policy. Easdon Rhodes appealed, arguing the vehicle driven by Joshua Rhodes
qualified for coverage and that the Endorsement’s exclusion clause was
ambiguous and could not provide Southern-Owners with a basis to deny coverage
for the accident under Florida law. With the benefit of oral argument, and
after a searching review of the parties’ briefs and the record, we affirm the
District Court’s judgment.
arises from a dispute over the scope of the insurance coverage provided by a
standard form Hired Auto and Non-Owned Auto Liability Endorsement to a
corporate general liability insurance policy (the “Endorsement”) issued by
Southern-Owners Insurance Company (“Southern-Owners”) to Easdon Rhodes &
Associates, LLC (“Easdon Rhodes”). Following an auto accident involving one of
its members, Joshua Rhodes, Easdon Rhodes was named as one of several
defendants in a state court negligence action filed by David Moore, who
suffered serious injuries in the crash.1 Southern-Owners agreed to defend the
suit in state court but reserved its rights to deny coverage under the terms of
the Endorsement. Subsequently, Southern-Owners filed an action in the United
States District Court for the Northern District of Florida seeking a
declaratory judgment absolving it of the duty to indemnify or defend Easdon
Rhodes, or the other defendants, against Moore’s negligence suit. After
Southern-Owners moved for summary judgment, the District Court held that the
vehicle driven by Joshua Rhodes did not qualify for coverage under the terms of
the Endorsement, and, even if the vehicle had qualified, the existence of a
separate insurance policy also covering the accident triggered the
Endorsement’s exclusion clause absolving Southern-Owners of its duties under
the policy. Easdon Rhodes appealed, arguing the vehicle driven by Joshua Rhodes
qualified for coverage and that the Endorsement’s exclusion clause was
ambiguous and could not provide Southern-Owners with a basis to deny coverage
for the accident under Florida law. With the benefit of oral argument, and
after a searching review of the parties’ briefs and the record, we affirm the
District Court’s judgment.
I.
Joshua Rhodes and Mark Easdon formed
Easdon Rhodes, a limited liability company, to provide a variety of
maintenance- and construction-related services. Shortly after formation, the
company purchased a corporate general liability insurance policy from
Southern-Owners. Automobiles were specifically excluded from coverage under the
original policy, but Easdon Rhodes purchased an Endorsement which expanded
coverage to include certain categories of automobiles. The text of the
Endorsement included an exclusion clause explaining coverage was only provided
under the provision if “you do not have any other insurance available to you
which affords the same or similar coverage.” The policy limit for bodily injury
and property damage claims covered by the Endorsement was $1,000,000.00.
Easdon Rhodes, a limited liability company, to provide a variety of
maintenance- and construction-related services. Shortly after formation, the
company purchased a corporate general liability insurance policy from
Southern-Owners. Automobiles were specifically excluded from coverage under the
original policy, but Easdon Rhodes purchased an Endorsement which expanded
coverage to include certain categories of automobiles. The text of the
Endorsement included an exclusion clause explaining coverage was only provided
under the provision if “you do not have any other insurance available to you
which affords the same or similar coverage.” The policy limit for bodily injury
and property damage claims covered by the Endorsement was $1,000,000.00.
On April 1, 2011, a Chevrolet
Silverado driven by Joshua Rhodes collided with a motorcycle driven by David
Moore, causing Moore serious injuries. At the time of the accident, the
Silverado was protected by a personal auto insurance policy issued by
Nationwide Mutual Insurance Company (the “Nationwide policy”). In addition to
the Silverado, that policy also insured two other vehicles and provided, among
other things, coverage for bodily injury and property damage. The Nationwide
policy limit for bodily injury was $25,000.00.
Silverado driven by Joshua Rhodes collided with a motorcycle driven by David
Moore, causing Moore serious injuries. At the time of the accident, the
Silverado was protected by a personal auto insurance policy issued by
Nationwide Mutual Insurance Company (the “Nationwide policy”). In addition to
the Silverado, that policy also insured two other vehicles and provided, among
other things, coverage for bodily injury and property damage. The Nationwide
policy limit for bodily injury was $25,000.00.
Following the collision, David Moore
and his wife Denise Moore filed a negligence suit against Joshua Rhodes in
state court. Approximately a year later, the action was amended to name Easdon
Rhodes as an additional defendant. In response to Moore’s filings, Nationwide
tendered its policy limit of $25,000, and, under a reservation of rights,
Southern-Owners agreed to provide Easdon Rhodes with a defense. Southern-Owners
then filed this action in the United States District Court for the Northern
District of Florida seeking a declaration that it has no obligation to defend
or indemnify Easdon Rhodes, or the other defendants, against Moore’s negligence
claim.
and his wife Denise Moore filed a negligence suit against Joshua Rhodes in
state court. Approximately a year later, the action was amended to name Easdon
Rhodes as an additional defendant. In response to Moore’s filings, Nationwide
tendered its policy limit of $25,000, and, under a reservation of rights,
Southern-Owners agreed to provide Easdon Rhodes with a defense. Southern-Owners
then filed this action in the United States District Court for the Northern
District of Florida seeking a declaration that it has no obligation to defend
or indemnify Easdon Rhodes, or the other defendants, against Moore’s negligence
claim.
Southern-Owners moved for summary
judgment on April 1, 2014, arguing the Nationwide policy provided coverage
similar to that available under the Endorsement and consequently relieved Southern-Owners
of any duty to defend or indemnify Easdon Rhodes under the plain terms of the
insurance contract. Southern-Owners also argued the Silverado driven by Joshua
Rhodes was not covered by the Endorsement in the first instance because it did
not meet the policy’s definition of a hired or non-owned auto. The District
Court agreed with Southern-Owners’ interpretation of the Endorsement and, on
October 30, 2014, granted summary judgment in Southern-Owners’ favor, absolving
the insurer of any duty to defend or indemnify Easdon Rhodes against Moore’s
underlying negligence suit.
judgment on April 1, 2014, arguing the Nationwide policy provided coverage
similar to that available under the Endorsement and consequently relieved Southern-Owners
of any duty to defend or indemnify Easdon Rhodes under the plain terms of the
insurance contract. Southern-Owners also argued the Silverado driven by Joshua
Rhodes was not covered by the Endorsement in the first instance because it did
not meet the policy’s definition of a hired or non-owned auto. The District
Court agreed with Southern-Owners’ interpretation of the Endorsement and, on
October 30, 2014, granted summary judgment in Southern-Owners’ favor, absolving
the insurer of any duty to defend or indemnify Easdon Rhodes against Moore’s
underlying negligence suit.
II.
We review “a district court’s grant
of summary judgment de novo applying the same legal standards used by the
district court.” Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir. 2008)
[21 Fla. L. Weekly Fed. C1321a]. “Summary judgment is appropriate where ‘there
is no genuine issue as to any material fact and the moving party is entitled to
a judgment as a matter of law.’ ” Wooden v. Bd. of Regents of the Univ. Sys.
of Ga., 247 F.3d 1262, 1271 (11th Cir. 2001) [14 Fla. L. Weekly Fed. C658a]
(quoting Fed. R. Civ. P. 56(c)). We also review de novo a district
court’s interpretation of contract language. Nat’l Fire Ins. Co. v. Fortune
Constr. Co., 320 F.3d 1260, 1267 (11th Cir. 2003) [16 Fla. L. Weekly Fed.
C300a].
of summary judgment de novo applying the same legal standards used by the
district court.” Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir. 2008)
[21 Fla. L. Weekly Fed. C1321a]. “Summary judgment is appropriate where ‘there
is no genuine issue as to any material fact and the moving party is entitled to
a judgment as a matter of law.’ ” Wooden v. Bd. of Regents of the Univ. Sys.
of Ga., 247 F.3d 1262, 1271 (11th Cir. 2001) [14 Fla. L. Weekly Fed. C658a]
(quoting Fed. R. Civ. P. 56(c)). We also review de novo a district
court’s interpretation of contract language. Nat’l Fire Ins. Co. v. Fortune
Constr. Co., 320 F.3d 1260, 1267 (11th Cir. 2003) [16 Fla. L. Weekly Fed.
C300a].
III.
A.
In this diversity action, we must
apply “the substantive law of the forum state.” Tech. Coating Applicators,
Inc. v. U.S. Fid. & Guar. Co., 157 F.3d 843, 844 (11th Cir. 1998).
Here, we look to Florida law to determine whether Southern-Owners owed a duty
to indemnify or defend its insured against Moore’s suit in state court. In
Florida, the terms used in an insurance contract are given their ordinary
meaning, and the policy must be construed as a whole “to give every provision
its full meaning and operative effect.” Auto-Owners Ins. Co. v. Anderson,
756 So. 2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]. The Florida Supreme
Court has emphasized the necessity of interpreting the “terms of an insurance
policy . . . in their ordinary sense [to provide] a reasonable, practical and
sensible interpretation consistent with the intent of the parties.” Siegle
v. Progressive Consumers Ins. Co., 819 So. 2d 732, 736 (Fla. 2002) [27 Fla.
L. Weekly S492a] (quoting Gen. Accident Fire & Life Assurance Corp. v.
Liberty Mut. Ins. Co., 260 So. 2d 249, 253 (Fla. Dist. Ct. App. 1972)). An
unambiguous policy provision is “enforced according to its terms whether it is
a basic policy provision or an exclusionary provision.” Hagen v. Aetna Cas.
& Sur. Co., 675 So. 2d 963, 965 (Fla. Dist. Ct. App. 1996) [21 Fla. L.
Weekly D1207a].
apply “the substantive law of the forum state.” Tech. Coating Applicators,
Inc. v. U.S. Fid. & Guar. Co., 157 F.3d 843, 844 (11th Cir. 1998).
Here, we look to Florida law to determine whether Southern-Owners owed a duty
to indemnify or defend its insured against Moore’s suit in state court. In
Florida, the terms used in an insurance contract are given their ordinary
meaning, and the policy must be construed as a whole “to give every provision
its full meaning and operative effect.” Auto-Owners Ins. Co. v. Anderson,
756 So. 2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]. The Florida Supreme
Court has emphasized the necessity of interpreting the “terms of an insurance
policy . . . in their ordinary sense [to provide] a reasonable, practical and
sensible interpretation consistent with the intent of the parties.” Siegle
v. Progressive Consumers Ins. Co., 819 So. 2d 732, 736 (Fla. 2002) [27 Fla.
L. Weekly S492a] (quoting Gen. Accident Fire & Life Assurance Corp. v.
Liberty Mut. Ins. Co., 260 So. 2d 249, 253 (Fla. Dist. Ct. App. 1972)). An
unambiguous policy provision is “enforced according to its terms whether it is
a basic policy provision or an exclusionary provision.” Hagen v. Aetna Cas.
& Sur. Co., 675 So. 2d 963, 965 (Fla. Dist. Ct. App. 1996) [21 Fla. L.
Weekly D1207a].
If policy language is susceptible to
multiple, reasonable interpretations, however, the policy is considered
ambiguous and must be “interpreted liberally in favor of the insured and
strictly against the drafter who prepared the policy.”2 Auto-Owners, 756 So. 2d at 34.
To allow for such a construction, the insurance policy “must actually be
ambiguous.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.
2d 528, 532 (Fla. 2005) [30 Fla. L. Weekly S633a]. Courts are not authorized
“to put a strained and unnatural construction on the terms of a policy in order
to create an uncertainty or ambiguity.” Jefferson Ins. Co. of N.Y. v. Sea
World of Fla., Inc., 586 So. 2d 95, 97 (Fla. Dist. Ct. App. 1991). The mere
fact that an insurance provision is “complex” or “requires analysis” does not
make it ambiguous. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.
2d 161, 165 (Fla. 2003) [28 Fla. L. Weekly S307d].
multiple, reasonable interpretations, however, the policy is considered
ambiguous and must be “interpreted liberally in favor of the insured and
strictly against the drafter who prepared the policy.”2 Auto-Owners, 756 So. 2d at 34.
To allow for such a construction, the insurance policy “must actually be
ambiguous.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.
2d 528, 532 (Fla. 2005) [30 Fla. L. Weekly S633a]. Courts are not authorized
“to put a strained and unnatural construction on the terms of a policy in order
to create an uncertainty or ambiguity.” Jefferson Ins. Co. of N.Y. v. Sea
World of Fla., Inc., 586 So. 2d 95, 97 (Fla. Dist. Ct. App. 1991). The mere
fact that an insurance provision is “complex” or “requires analysis” does not
make it ambiguous. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.
2d 161, 165 (Fla. 2003) [28 Fla. L. Weekly S307d].
B.
The central interpretative question
presented here is whether the existence of a separate insurance policy, which
paid policy limits for the underlying claim at issue, qualifies as “similar
insurance” under the Endorsement’s exclusion clause thereby absolving
Southern-Owners of any duty toward its insured, Easdon Rhodes. The exclusion
clause provides that insurance protection is only available under the
Endorsement “if you do not have any other insurance available to you which
affords the same or similar coverage.” The parties do not dispute that the
Nationwide policy insuring the Silverado driven by Joshua Rhodes qualifies as
“other insurance” and that the Nationwide policy does not offer the “same”
coverage as the Endorsement. So, whether the Endorsement’s exclusion clause
applies to relieve Southern-Owners of a duty to defend or indemnify Easdon
Rhodes depends on the meaning of “similar coverage,” a term left undefined by
the policy.3
presented here is whether the existence of a separate insurance policy, which
paid policy limits for the underlying claim at issue, qualifies as “similar
insurance” under the Endorsement’s exclusion clause thereby absolving
Southern-Owners of any duty toward its insured, Easdon Rhodes. The exclusion
clause provides that insurance protection is only available under the
Endorsement “if you do not have any other insurance available to you which
affords the same or similar coverage.” The parties do not dispute that the
Nationwide policy insuring the Silverado driven by Joshua Rhodes qualifies as
“other insurance” and that the Nationwide policy does not offer the “same”
coverage as the Endorsement. So, whether the Endorsement’s exclusion clause
applies to relieve Southern-Owners of a duty to defend or indemnify Easdon
Rhodes depends on the meaning of “similar coverage,” a term left undefined by
the policy.3
Southern-Owners contends the phrase
“similar coverage” is susceptible to only a single reasonable interpretation
within the context of the Endorsement’s exclusion clause: “that it triggers
whenever another policy . . . is available to pay for the same liability
claimed under the policy at issue.” Moore disagrees and argues the “similar
coverage” language is ambiguous because it could also be reasonably interpreted
to require the presence of another insurance policy covering the same overall
set of risks as the Southern-Owners corporate general liability policy, not
just the specific liability claimed. As Florida law requires the interpretation
of ambiguous insurance policies in favor of coverage, Moore asserts
Southern-Owners cannot use the Endorsement’s exclusion clause to justify
disclaiming its duty to defend and indemnify Easdon Rhodes. Because we find
only a single reasonable interpretation of the Endorsement’s exclusion clause
exists, we decline Moore’s invitation to manufacture uncertainty and now hold
that the clause unambiguously operates to deny Easdon Rhodes insurance coverage
here.
“similar coverage” is susceptible to only a single reasonable interpretation
within the context of the Endorsement’s exclusion clause: “that it triggers
whenever another policy . . . is available to pay for the same liability
claimed under the policy at issue.” Moore disagrees and argues the “similar
coverage” language is ambiguous because it could also be reasonably interpreted
to require the presence of another insurance policy covering the same overall
set of risks as the Southern-Owners corporate general liability policy, not
just the specific liability claimed. As Florida law requires the interpretation
of ambiguous insurance policies in favor of coverage, Moore asserts
Southern-Owners cannot use the Endorsement’s exclusion clause to justify
disclaiming its duty to defend and indemnify Easdon Rhodes. Because we find
only a single reasonable interpretation of the Endorsement’s exclusion clause
exists, we decline Moore’s invitation to manufacture uncertainty and now hold
that the clause unambiguously operates to deny Easdon Rhodes insurance coverage
here.
Neither party has provided binding
authority interpreting the phrase “similar coverage,” nor have we been able to
locate such authority on our own.4 We must interpret the clause
ourselves beginning with discerning the phrase’s plain meaning via “references
[that are] commonly relied upon to supply the accepted meaning of [the] words.”
Penzer v. Transp. Ins. Co., 29 So. 3d 1000, 1005 (Fla. 2010) [35 Fla. L.
Weekly S73a] (quoting Garcia v. Fed. Ins. Co., 969 So. 2d 288, 292 (Fla.
2007) [32 Fla. L. Weekly S657a]). Similar means “alike in substance” or “having
characteristics in common.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1093 (10th
ed. 1999). And, in the insurance context, coverage is defined as the
“[i]nclusion of a risk under an insurance policy; the risks within the scope of
an insurance policy.” Coverage, BLACK’S LAW DICTIONARY 446 (10th ed.
2014). This definition suggests “coverage,” as used in the Endorsement, has two
potential meanings. The term may either refer specifically to the inclusion of
an individual risk covered by an insurance policy, or it may broadly refer to
the overall scope of protection a particular insurance policy offers.
authority interpreting the phrase “similar coverage,” nor have we been able to
locate such authority on our own.4 We must interpret the clause
ourselves beginning with discerning the phrase’s plain meaning via “references
[that are] commonly relied upon to supply the accepted meaning of [the] words.”
Penzer v. Transp. Ins. Co., 29 So. 3d 1000, 1005 (Fla. 2010) [35 Fla. L.
Weekly S73a] (quoting Garcia v. Fed. Ins. Co., 969 So. 2d 288, 292 (Fla.
2007) [32 Fla. L. Weekly S657a]). Similar means “alike in substance” or “having
characteristics in common.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1093 (10th
ed. 1999). And, in the insurance context, coverage is defined as the
“[i]nclusion of a risk under an insurance policy; the risks within the scope of
an insurance policy.” Coverage, BLACK’S LAW DICTIONARY 446 (10th ed.
2014). This definition suggests “coverage,” as used in the Endorsement, has two
potential meanings. The term may either refer specifically to the inclusion of
an individual risk covered by an insurance policy, or it may broadly refer to
the overall scope of protection a particular insurance policy offers.
Fortunately, we may use the broader
context surrounding the phrase “similar coverage” to select between these two
possible meanings. See, e.g., State Farm Mut. Auto Ins. Co. v.
Mashburn, 15 So. 3d 701, 704 (Fla. Dist. Ct. App. 2009) [34 Fla. L. Weekly
D1320a] (explaining a “single policy provision should not be read in isolation
and out of context, for the contract is to be construed according to its entire
terms, as set forth in the policy and amplified by the policy application,
endorsements, or riders”). Here, the wording of both the Endorsement’s
exclusion clause and the Coverages section of the Southern-Owners corporate
general liability policy supports adopting the narrower definition of
“coverage” which specifically refers to the “[i]nclusion of a risk under an
insurance policy.” Coverage, BLACK’S LAW DICTIONARY 446 (10th ed. 2014).
context surrounding the phrase “similar coverage” to select between these two
possible meanings. See, e.g., State Farm Mut. Auto Ins. Co. v.
Mashburn, 15 So. 3d 701, 704 (Fla. Dist. Ct. App. 2009) [34 Fla. L. Weekly
D1320a] (explaining a “single policy provision should not be read in isolation
and out of context, for the contract is to be construed according to its entire
terms, as set forth in the policy and amplified by the policy application,
endorsements, or riders”). Here, the wording of both the Endorsement’s
exclusion clause and the Coverages section of the Southern-Owners corporate
general liability policy supports adopting the narrower definition of
“coverage” which specifically refers to the “[i]nclusion of a risk under an
insurance policy.” Coverage, BLACK’S LAW DICTIONARY 446 (10th ed. 2014).
First, an examination of the
exclusion clause itself reveals the term “coverage” is intended to reference
particularized risks included within a policy rather than the entire scope of
protection the policy offers. The word “coverage” in the exclusion clause is
immediately preceded by the verb “affords” and the identification of the two
discrete risks, bodily injury and property damage, for which the Endorsement
provides protection. To “afford” is commonly defined as “to furnish, bestow,
grant, [or] yield.” OXFORD ENGLISH DICTIONARY 222 (2d ed. 2001). So, with this
definition in mind, the exclusion clause most naturally reads as disclaiming
insurance protection under the Endorsement “if you do not have any other
insurance available to you which [furnishes protection against the same or
similar risks, property damage or bodily injury, as provided by the
Endorsement].”
exclusion clause itself reveals the term “coverage” is intended to reference
particularized risks included within a policy rather than the entire scope of
protection the policy offers. The word “coverage” in the exclusion clause is
immediately preceded by the verb “affords” and the identification of the two
discrete risks, bodily injury and property damage, for which the Endorsement
provides protection. To “afford” is commonly defined as “to furnish, bestow,
grant, [or] yield.” OXFORD ENGLISH DICTIONARY 222 (2d ed. 2001). So, with this
definition in mind, the exclusion clause most naturally reads as disclaiming
insurance protection under the Endorsement “if you do not have any other
insurance available to you which [furnishes protection against the same or
similar risks, property damage or bodily injury, as provided by the
Endorsement].”
This interpretation conforms to the
typical understanding of the word “coverage” when it is employed in ordinary
conversation regarding discrete, particularized risks — insurance consumers
simply want to know whether insurance will cover, or assume the cost of, the
risk at issue. The full suite of protections provided by the insurance policy
is not relevant to the basic inquiry into whether a policy insures against a
particular identifiable risk. As the District Court succinctly explained,
common sense tells us that in the context of an endorsement to an insurance
contract adding protection against specific risks otherwise excluded by the
policy, the word “coverage” refers to the specific risk protection being added
rather than the universe of risks covered by the entire policy. Such an
understanding fully comports with the requirements of Florida law which urges
us to interpret the words of an insurance policy in their “ordinary sense.” See
Siegle, 819 So. 2d at 736.
typical understanding of the word “coverage” when it is employed in ordinary
conversation regarding discrete, particularized risks — insurance consumers
simply want to know whether insurance will cover, or assume the cost of, the
risk at issue. The full suite of protections provided by the insurance policy
is not relevant to the basic inquiry into whether a policy insures against a
particular identifiable risk. As the District Court succinctly explained,
common sense tells us that in the context of an endorsement to an insurance
contract adding protection against specific risks otherwise excluded by the
policy, the word “coverage” refers to the specific risk protection being added
rather than the universe of risks covered by the entire policy. Such an
understanding fully comports with the requirements of Florida law which urges
us to interpret the words of an insurance policy in their “ordinary sense.” See
Siegle, 819 So. 2d at 736.
Our understanding of “coverage” as
referring to the inclusion of a specific risk in an insurance policy is
reinforced by the term’s repeated use within the Coverages section of the
Southern-Owners corporate general liability policy at issue here. The
Endorsement itself explicitly uses coverage in reference to the two specific
types of risks it covers, “Bodily Injury and property damage liability . . .
arising out of the maintenance or use of an ‘auto.’ ” Elsewhere, the Coverages
section of the Southern-Owners corporate general liability policy delineates
the particular risks of which Southern-Owners pledges to assume the costs. In
both cases, the use of the term “coverage” is tied to the specific types of
risk protected by the policy. Nowhere in the policy does Southern-Owners use
the term “coverage” to broadly refer to the entire universe of risks associated
with the insurance contract. Instead, the word continually appears in the
context of detailed explanations for a specific risk for which the policy
provides coverage.
referring to the inclusion of a specific risk in an insurance policy is
reinforced by the term’s repeated use within the Coverages section of the
Southern-Owners corporate general liability policy at issue here. The
Endorsement itself explicitly uses coverage in reference to the two specific
types of risks it covers, “Bodily Injury and property damage liability . . .
arising out of the maintenance or use of an ‘auto.’ ” Elsewhere, the Coverages
section of the Southern-Owners corporate general liability policy delineates
the particular risks of which Southern-Owners pledges to assume the costs. In
both cases, the use of the term “coverage” is tied to the specific types of
risk protected by the policy. Nowhere in the policy does Southern-Owners use
the term “coverage” to broadly refer to the entire universe of risks associated
with the insurance contract. Instead, the word continually appears in the
context of detailed explanations for a specific risk for which the policy
provides coverage.
Additionally, Florida law tells us
we must give each term and provision in an insurance policy operative effect
and that we must avoid constructions rendering particular phrases mere
surplusage. See U.S. Fid. & Guar. Co. v. Romay, 744 So. 2d 467, 471
(Fla. Dist. Ct. App. 1999) [24 Fla. L. Weekly D1963a]. Only by interpreting
“coverage” to mean the “[i]nclusion of a risk under an insurance policy” do we
ensure that our construction of the Endorsement gives full effect to the
proceeding phrase in the provision’s exclusion clause, “any other insurance.” See
Coverage, BLACK’S LAW DICTIONARY 446 (10th ed. 2014). Any means “one or
some indiscriminately of whatever quantity.” MERRIAM WEBSTER’S COLLEGIATE
DICTIONARY 53 (10th ed. 1999). So, the phrase “any other insurance” must refer
to all forms of insurance regardless of the type of policy or the amount of
protection provided. Interpreting coverage to refer to the inclusion of a
specific risk in an insurance policy preserves this meaning by indicating the
form or type of the other insurance at issue is irrelevant. Instead, the
Endorsement’s exclusion clause remains solely concerned with whether the other
available insurance protects against the same risks as the Endorsement rather
than whether it offers the same overall level of protection. If both the
Endorsement and the other available policy specifically protect against the
same or similar risk at issue, the exclusion clause would apply and eliminate
Southern-Owners’ obligations under the terms of the Endorsement.
we must give each term and provision in an insurance policy operative effect
and that we must avoid constructions rendering particular phrases mere
surplusage. See U.S. Fid. & Guar. Co. v. Romay, 744 So. 2d 467, 471
(Fla. Dist. Ct. App. 1999) [24 Fla. L. Weekly D1963a]. Only by interpreting
“coverage” to mean the “[i]nclusion of a risk under an insurance policy” do we
ensure that our construction of the Endorsement gives full effect to the
proceeding phrase in the provision’s exclusion clause, “any other insurance.” See
Coverage, BLACK’S LAW DICTIONARY 446 (10th ed. 2014). Any means “one or
some indiscriminately of whatever quantity.” MERRIAM WEBSTER’S COLLEGIATE
DICTIONARY 53 (10th ed. 1999). So, the phrase “any other insurance” must refer
to all forms of insurance regardless of the type of policy or the amount of
protection provided. Interpreting coverage to refer to the inclusion of a
specific risk in an insurance policy preserves this meaning by indicating the
form or type of the other insurance at issue is irrelevant. Instead, the
Endorsement’s exclusion clause remains solely concerned with whether the other
available insurance protects against the same risks as the Endorsement rather
than whether it offers the same overall level of protection. If both the
Endorsement and the other available policy specifically protect against the
same or similar risk at issue, the exclusion clause would apply and eliminate
Southern-Owners’ obligations under the terms of the Endorsement.
On the other hand, interpreting
“coverage” to refer to the overall scope of the protection provided by an
insurance policy effectively reads the “any other insurance” phrase out of the
Endorsement’s exclusion clause. Such an interpretation shifts the clause’s
frame of analysis from an evaluation of the specific risk insured against to
the overall scope of coverage offered by the Endorsement and underlying
corporate general liability policy. Under this construction, the clause would functionally
apply only to other non-owned auto endorsements to corporate general liability
policies, because any form of individual auto insurance would by definition
protect a broader universe of vehicles from a different set of risks. This
approach would render the “any other insurance” language in the Endorsement
essentially meaningless since only a very specific type of insurance would ever
fall within the exclusion clause’s purview.
“coverage” to refer to the overall scope of the protection provided by an
insurance policy effectively reads the “any other insurance” phrase out of the
Endorsement’s exclusion clause. Such an interpretation shifts the clause’s
frame of analysis from an evaluation of the specific risk insured against to
the overall scope of coverage offered by the Endorsement and underlying
corporate general liability policy. Under this construction, the clause would functionally
apply only to other non-owned auto endorsements to corporate general liability
policies, because any form of individual auto insurance would by definition
protect a broader universe of vehicles from a different set of risks. This
approach would render the “any other insurance” language in the Endorsement
essentially meaningless since only a very specific type of insurance would ever
fall within the exclusion clause’s purview.
Not only would this reading of the
Endorsement directly contravene Florida law by reading out relevant policy
language, but it would also ignore the practical realities of the insurance
market. Companies and individuals purchase insurance for the purposes of
protecting themselves against particular risks. It is in their interest to
minimize duplicative insurance which serves only to increase cost without
providing a commensurate increase in protection. Thus, the typical insurance
consumer is extremely unlikely to buy insurance policies with the idea of
providing duplicative coverage for risks their existing insurance already
covers. If increased insurance protection for such a risk becomes necessary, it
would almost always be simpler to increase the amount of coverage on the
existing policy rather than incur the transaction costs associated with
acquiring duplicative coverage through another policy.5 We see that exact scenario born out
here through the Endorsement which provides a limited amount of non-duplicative
coverage at a very low cost as compared to a generalized duplicative insurance
policy. Indeed, the Endorsement carries an annual premium of only $61.29 and
provides a policy limit of $1,000,000.00 for bodily injury or property damage.
By comparison, the bodily injury coverage provided by the personal Nationwide
policy also in place on the Silverado at the time of the collision provided a
policy limit of only $25,000.00 at an annual cost of $470.00.
Endorsement directly contravene Florida law by reading out relevant policy
language, but it would also ignore the practical realities of the insurance
market. Companies and individuals purchase insurance for the purposes of
protecting themselves against particular risks. It is in their interest to
minimize duplicative insurance which serves only to increase cost without
providing a commensurate increase in protection. Thus, the typical insurance
consumer is extremely unlikely to buy insurance policies with the idea of
providing duplicative coverage for risks their existing insurance already
covers. If increased insurance protection for such a risk becomes necessary, it
would almost always be simpler to increase the amount of coverage on the
existing policy rather than incur the transaction costs associated with
acquiring duplicative coverage through another policy.5 We see that exact scenario born out
here through the Endorsement which provides a limited amount of non-duplicative
coverage at a very low cost as compared to a generalized duplicative insurance
policy. Indeed, the Endorsement carries an annual premium of only $61.29 and
provides a policy limit of $1,000,000.00 for bodily injury or property damage.
By comparison, the bodily injury coverage provided by the personal Nationwide
policy also in place on the Silverado at the time of the collision provided a
policy limit of only $25,000.00 at an annual cost of $470.00.
This basic understanding of the
insurance market also offers strong evidence that the parties intended to
define “coverage” as “[i]nclusion of a risk under an insurance policy.” Coverage,
BLACK’S LAW DICTIONARY 446 (10th ed. 2014). In the original corporate general
liability policy Southern-Owners provided to Easdon Rhodes, risks stemming from
the use of automobiles were expressly excluded from the policy. As Florida law
makes clear, the addition of a non-owned automobile Endorsement was for a specific
purpose — to “provide coverage to the insured while engaged in infrequent or
casual use of an automobile.” Lancer Ins. Co. v. Gomez, 799 So. 2d 334,
336 (Fla Dist. Ct. App. 2001) [26 Fla. L. Weekly D2509a]. While the Endorsement
would not totally exempt Easdon Rhodes from paying premiums for ordinary auto
insurance, it would provide cheap, emergency protection for bodily injury and
property damage stemming from the temporary business use of a hired or borrowed
auto that might not be adequately insured otherwise. The Endorsement’s
exclusion clause reinforces this narrow purpose by making clear the provision
only applies when this particularized risk is not protected against by “any
other [available] insurance.”
insurance market also offers strong evidence that the parties intended to
define “coverage” as “[i]nclusion of a risk under an insurance policy.” Coverage,
BLACK’S LAW DICTIONARY 446 (10th ed. 2014). In the original corporate general
liability policy Southern-Owners provided to Easdon Rhodes, risks stemming from
the use of automobiles were expressly excluded from the policy. As Florida law
makes clear, the addition of a non-owned automobile Endorsement was for a specific
purpose — to “provide coverage to the insured while engaged in infrequent or
casual use of an automobile.” Lancer Ins. Co. v. Gomez, 799 So. 2d 334,
336 (Fla Dist. Ct. App. 2001) [26 Fla. L. Weekly D2509a]. While the Endorsement
would not totally exempt Easdon Rhodes from paying premiums for ordinary auto
insurance, it would provide cheap, emergency protection for bodily injury and
property damage stemming from the temporary business use of a hired or borrowed
auto that might not be adequately insured otherwise. The Endorsement’s
exclusion clause reinforces this narrow purpose by making clear the provision
only applies when this particularized risk is not protected against by “any
other [available] insurance.”
Easdon Rhodes must have been aware
of the basic functioning of the Endorsement because the company affirmatively
added the provision to its Southern-Owners corporate general liability
insurance policy. Presumably, this action was taken because the maintenance and
construction business conducted by the company would occasionally necessitate
the temporary use of various automobiles not separately insured by the
corporation or its members. In order to cheaply protect itself from the
potential risks stemming from the use of these temporary vehicles, Easdon
Rhodes requested and received a narrowly tailored Hired Auto and Non-Owned Auto
Liability Endorsement to its corporate general liability policy. It cost about
$400 less per year than the Nationwide policy also covering the Silverado at
the time of the collision while providing a policy limit approximately forty
times higher. This substantial discrepancy in cost and policy limit speaks
volumes regarding the intended reach of the Endorsement’s exclusion clause.
Such a low price for such expansive coverage is only adequately explained by
the presence of an exclusion clause which routinely applies, since the specific
risks dealt with by the Endorsement would almost always be covered by some
other auto insurance policy. Interpreting coverage to refer to the overall
scope of the risks dealt with by a particular policy, as Moore suggests, would
gut the exclusion clause’s intended effect, and Easdon Rhodes would effectively
be receiving an insurance windfall via the Endorsement, a nonsensical result.
of the basic functioning of the Endorsement because the company affirmatively
added the provision to its Southern-Owners corporate general liability
insurance policy. Presumably, this action was taken because the maintenance and
construction business conducted by the company would occasionally necessitate
the temporary use of various automobiles not separately insured by the
corporation or its members. In order to cheaply protect itself from the
potential risks stemming from the use of these temporary vehicles, Easdon
Rhodes requested and received a narrowly tailored Hired Auto and Non-Owned Auto
Liability Endorsement to its corporate general liability policy. It cost about
$400 less per year than the Nationwide policy also covering the Silverado at
the time of the collision while providing a policy limit approximately forty
times higher. This substantial discrepancy in cost and policy limit speaks
volumes regarding the intended reach of the Endorsement’s exclusion clause.
Such a low price for such expansive coverage is only adequately explained by
the presence of an exclusion clause which routinely applies, since the specific
risks dealt with by the Endorsement would almost always be covered by some
other auto insurance policy. Interpreting coverage to refer to the overall
scope of the risks dealt with by a particular policy, as Moore suggests, would
gut the exclusion clause’s intended effect, and Easdon Rhodes would effectively
be receiving an insurance windfall via the Endorsement, a nonsensical result.
Accordingly, in the context of the
Endorsement’s exclusion clause, only a single reasonable interpretation of the
phrase “similar coverage” exists: that it refers to “another policy . . .
[that] is available to pay for the same [or similar] liability claimed under the
policy at issue.” In this case, the Nationwide policy in place at the time of
the accident easily falls within this definition. As the District Court
explained, the simple fact the Nationwide policy has already paid its policy
limit to cover the underlying accident sufficiently evidences that it provides
similar coverage to that offered by the Endorsement. Indeed, the Nationwide
policy goes beyond mere similarity and includes protection against exactly the
same risks as the Endorsement, bodily injury and property damage. Accordingly,
the Endorsement’s exclusion clause operates unambiguously to relieve
Southern-Owners of any duty to defend or indemnify Easdon Rhodes, or the other
defendants, against Moore’s negligence action.6
Endorsement’s exclusion clause, only a single reasonable interpretation of the
phrase “similar coverage” exists: that it refers to “another policy . . .
[that] is available to pay for the same [or similar] liability claimed under the
policy at issue.” In this case, the Nationwide policy in place at the time of
the accident easily falls within this definition. As the District Court
explained, the simple fact the Nationwide policy has already paid its policy
limit to cover the underlying accident sufficiently evidences that it provides
similar coverage to that offered by the Endorsement. Indeed, the Nationwide
policy goes beyond mere similarity and includes protection against exactly the
same risks as the Endorsement, bodily injury and property damage. Accordingly,
the Endorsement’s exclusion clause operates unambiguously to relieve
Southern-Owners of any duty to defend or indemnify Easdon Rhodes, or the other
defendants, against Moore’s negligence action.6
Moore is correct to point out that
we recently reached the opposite conclusion when interpreting identical
language in an unpublished decision, Southern-Owners Insurance Co. v. Wall 2
Walls Construction, LLC, 592 F. App’x 766 (11th Cir. 2014). However, that
decision’s rationale was almost entirely focused on the ambiguity introduced by
the exclusion clause’s use of the term “similar.” See id. at 770.7 We agree with our decision in Wall
2 Walls to the extent that we found the word “similar” ambiguous, standing
alone. Id. Without an adequate frame of comparative reference, it
becomes extremely difficult to pinpoint exactly in what respects and to what
extent insurance policies must be alike to properly qualify as “similar.”
However, the opinion in Wall 2 Walls failed to consider the meaning of
“coverage” within the context of the policy it examined. See id. Properly
defined as the inclusion of a specific risk under an insurance policy,
“coverage” supplies the exact limiting factor required to sensibly deploy a
word like “similar.” As we have discussed, the plain meaning of “coverage”
limits the application of “similar” to the simple question of whether a risk is
included in an insurance policy or not. This provides a reasonably precise
metric to guide a reader’s understanding of the word “similar” and obviates any
ambiguity the term, standing alone, might otherwise have.
we recently reached the opposite conclusion when interpreting identical
language in an unpublished decision, Southern-Owners Insurance Co. v. Wall 2
Walls Construction, LLC, 592 F. App’x 766 (11th Cir. 2014). However, that
decision’s rationale was almost entirely focused on the ambiguity introduced by
the exclusion clause’s use of the term “similar.” See id. at 770.7 We agree with our decision in Wall
2 Walls to the extent that we found the word “similar” ambiguous, standing
alone. Id. Without an adequate frame of comparative reference, it
becomes extremely difficult to pinpoint exactly in what respects and to what
extent insurance policies must be alike to properly qualify as “similar.”
However, the opinion in Wall 2 Walls failed to consider the meaning of
“coverage” within the context of the policy it examined. See id. Properly
defined as the inclusion of a specific risk under an insurance policy,
“coverage” supplies the exact limiting factor required to sensibly deploy a
word like “similar.” As we have discussed, the plain meaning of “coverage”
limits the application of “similar” to the simple question of whether a risk is
included in an insurance policy or not. This provides a reasonably precise
metric to guide a reader’s understanding of the word “similar” and obviates any
ambiguity the term, standing alone, might otherwise have.
Moore’s argument that differences in
policy limits between the Nationwide policy and the Endorsement indicates the
coverages are not similar is likewise unavailing. First, as extensively
discussed above, “coverage,” within the context of the insurance industry,
refers to the risks a particular policy protects against, not how much
protection the insurance policy actually provides. Thus, the amount of protection
offered is a distinct inquiry from the type of coverage and is not implicated
by the phrase “same or similar coverage.” See Bergman v. Hutton, 101
P.3d 353, 357-58 (Or. 2004) (defining coverage separately from the limits of
insurer liability provided by the policy itself); Am. States Ins. Co. v.
Kesten, 561 N.W.2d 486, 487 (Mich. Ct. App. 1997) (rejecting an argument
that coverages are not similar based on different available policy limits as
“specious”); Smart v. Safety Ins. Co., 643 N.E.2d 435, 437 (Mass. 1994)
(determining that, so long as coverage of a particular risk was “not illusory,”
it would still qualify as similar insurance to another policy offering a
substantially greater amount of coverage); see also Hamilton v. Gov’t Emps.
Ins. Co., 662 A.2d 568, 571-72 (N.J. Super. Ct. App. Div. 1995) (defining
the type or scope of coverage a policy provides as a distinct inquiry from the
coverages’ policy limit).
policy limits between the Nationwide policy and the Endorsement indicates the
coverages are not similar is likewise unavailing. First, as extensively
discussed above, “coverage,” within the context of the insurance industry,
refers to the risks a particular policy protects against, not how much
protection the insurance policy actually provides. Thus, the amount of protection
offered is a distinct inquiry from the type of coverage and is not implicated
by the phrase “same or similar coverage.” See Bergman v. Hutton, 101
P.3d 353, 357-58 (Or. 2004) (defining coverage separately from the limits of
insurer liability provided by the policy itself); Am. States Ins. Co. v.
Kesten, 561 N.W.2d 486, 487 (Mich. Ct. App. 1997) (rejecting an argument
that coverages are not similar based on different available policy limits as
“specious”); Smart v. Safety Ins. Co., 643 N.E.2d 435, 437 (Mass. 1994)
(determining that, so long as coverage of a particular risk was “not illusory,”
it would still qualify as similar insurance to another policy offering a
substantially greater amount of coverage); see also Hamilton v. Gov’t Emps.
Ins. Co., 662 A.2d 568, 571-72 (N.J. Super. Ct. App. Div. 1995) (defining
the type or scope of coverage a policy provides as a distinct inquiry from the
coverages’ policy limit).
Furthermore, interpreting “coverage”
as referencing not just the type but also the amount of coverage produces
absurd results. Adopting this interpretation would mean “similar coverage”
exclusion clauses would trigger only if the other available insurance policy
dealing with the same risks also had an analogous coverage limit. This position
reflects an unrealistic view of the method in which consumers purchase
insurance. Given the transaction costs involved, purchasing multiple
duplicative coverages for the same risk simply does not make sense. To the
extent coverages overlap at all, it is likely that different policy limits
would be available under each policy to reflect the different insurance
objectives sought by the insured. It is difficult to imagine a scenario
offering a rational justification for purchasing multiple policies all offering
the same amount of protection for the same risk and even more difficult
to imagine a potential justification for purposefully drafting an exclusion
clause to bar coverage in this most unlikely context. We are satisfied that the
plain meaning of the Endorsement’s exclusion clause is concerned only with the
type rather than amount of available “similar [insurance] coverage.”
as referencing not just the type but also the amount of coverage produces
absurd results. Adopting this interpretation would mean “similar coverage”
exclusion clauses would trigger only if the other available insurance policy
dealing with the same risks also had an analogous coverage limit. This position
reflects an unrealistic view of the method in which consumers purchase
insurance. Given the transaction costs involved, purchasing multiple
duplicative coverages for the same risk simply does not make sense. To the
extent coverages overlap at all, it is likely that different policy limits
would be available under each policy to reflect the different insurance
objectives sought by the insured. It is difficult to imagine a scenario
offering a rational justification for purchasing multiple policies all offering
the same amount of protection for the same risk and even more difficult
to imagine a potential justification for purposefully drafting an exclusion
clause to bar coverage in this most unlikely context. We are satisfied that the
plain meaning of the Endorsement’s exclusion clause is concerned only with the
type rather than amount of available “similar [insurance] coverage.”
IV.
Admittedly, we have engaged in
extensive analysis to justify the common sense conclusion that an exclusion
clause denying coverage in the event the insured has available “any other
insurance with the same or similar coverage” applies when the insured has
another insurance policy paying policy limits for the underlying liability. But
Florida law is clear that ambiguity does not result simply because complex
analysis is required to discern the plain meaning of a provision of an
insurance contract. See Swire Pac. Holdings, 845 So. 2d at 165. Indeed,
Florida courts have repeatedly cautioned that it is improper to “rewrite
contracts, add meaning that is not present, or otherwise reach results contrary
to the intentions of the parties” while seeking to identify ambiguity not
actually present in the insurance policy. Id. (quoting State Farm
Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245, 1248 (Fla. 1986)).
extensive analysis to justify the common sense conclusion that an exclusion
clause denying coverage in the event the insured has available “any other
insurance with the same or similar coverage” applies when the insured has
another insurance policy paying policy limits for the underlying liability. But
Florida law is clear that ambiguity does not result simply because complex
analysis is required to discern the plain meaning of a provision of an
insurance contract. See Swire Pac. Holdings, 845 So. 2d at 165. Indeed,
Florida courts have repeatedly cautioned that it is improper to “rewrite
contracts, add meaning that is not present, or otherwise reach results contrary
to the intentions of the parties” while seeking to identify ambiguity not
actually present in the insurance policy. Id. (quoting State Farm
Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245, 1248 (Fla. 1986)).
The Endorsement at issue here is not
a model of clarity or precision. But before the policy may be construed against
Southern-Owners and in favor of the insured, we must determine if an ambiguity
exists based upon the presence of multiple reasonable interpretations of the
policy language, not the inherent indeterminacy of linguistic expression. See
Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So. 2d 938,
942 (Fla. 1979) (noting the Florida rule requiring the interpretation of
ambiguous insurance policies in favor of coverage applies “[o]nly when a
genuine inconsistency, uncertainty, or ambiguity in meaning remains after
resort to the ordinary rules of construction”). Southern-Owners does not need
to create a crystal clear insurance policy. It need only provide an unambiguous
one. It has carried that modest burden. We decline Moore’s invitation to
manufacture ambiguity where none exists. Because we find the Endorsement’s
exclusionary clause unambiguously denies coverage in this case, we affirm the
District Court’s grant of summary judgment.
a model of clarity or precision. But before the policy may be construed against
Southern-Owners and in favor of the insured, we must determine if an ambiguity
exists based upon the presence of multiple reasonable interpretations of the
policy language, not the inherent indeterminacy of linguistic expression. See
Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So. 2d 938,
942 (Fla. 1979) (noting the Florida rule requiring the interpretation of
ambiguous insurance policies in favor of coverage applies “[o]nly when a
genuine inconsistency, uncertainty, or ambiguity in meaning remains after
resort to the ordinary rules of construction”). Southern-Owners does not need
to create a crystal clear insurance policy. It need only provide an unambiguous
one. It has carried that modest burden. We decline Moore’s invitation to
manufacture ambiguity where none exists. Because we find the Endorsement’s
exclusionary clause unambiguously denies coverage in this case, we affirm the
District Court’s grant of summary judgment.
AFFIRMED.
__________________
*Honorable Richard W. Goldberg,
Senior Judge for the U.S. Court of International Trade, sitting by designation.
Senior Judge for the U.S. Court of International Trade, sitting by designation.
1David
Moore’s wife, Denise Moore, also brought a loss of consortium claim based on
the injuries suffered by her husband. Because her cause of action is entirely
derivative of her husband’s negligence claim, we will refer to David Moore as
the sole plaintiff in the underlying state court action. See Gates v. Foley,
247 So. 2d 40, 45 (Fla. 1971) (explaining that loss of consortium “is a
derivative right”). Further, for ease of reference, we treat Moore as the only
appellant presently before us.
Moore’s wife, Denise Moore, also brought a loss of consortium claim based on
the injuries suffered by her husband. Because her cause of action is entirely
derivative of her husband’s negligence claim, we will refer to David Moore as
the sole plaintiff in the underlying state court action. See Gates v. Foley,
247 So. 2d 40, 45 (Fla. 1971) (explaining that loss of consortium “is a
derivative right”). Further, for ease of reference, we treat Moore as the only
appellant presently before us.
2This rule
applies with even greater force in the context of exclusion clauses which
courts must “construe[ ] even more strictly against the insurer than coverage
clauses.” Auto-Owners, 756 So. 2d at 34.
applies with even greater force in the context of exclusion clauses which
courts must “construe[ ] even more strictly against the insurer than coverage
clauses.” Auto-Owners, 756 So. 2d at 34.
3Because we
ultimately hold the Endorsement’s exclusion clause unambiguously applies to
deny Easdon Rhodes coverage here, we need not address the parties’ other
interpretative arguments regarding the provision’s overall scope.
ultimately hold the Endorsement’s exclusion clause unambiguously applies to
deny Easdon Rhodes coverage here, we need not address the parties’ other
interpretative arguments regarding the provision’s overall scope.
4Moore
primarily relies on a single unpublished decision, Southern-Owners Ins. Co.
v. Wall 2 Walls Constr., LLC, 592 F. App’x 766 (11th Cir. 2014),
interpreting identical language in another Southern-Owners policy. However, we
are not bound by unpublished decisions. See U.S. Ct. of App. 11th Cir.
R. 36-2 (providing that “[u]npublished opinions are not considered binding
precedent”).
primarily relies on a single unpublished decision, Southern-Owners Ins. Co.
v. Wall 2 Walls Constr., LLC, 592 F. App’x 766 (11th Cir. 2014),
interpreting identical language in another Southern-Owners policy. However, we
are not bound by unpublished decisions. See U.S. Ct. of App. 11th Cir.
R. 36-2 (providing that “[u]npublished opinions are not considered binding
precedent”).
5Excess-liability
and umbrella policies are also available to provide additional insurance where
consumers desire more coverage than their policies extend. These policies are
not duplicative because they are not triggered until the policy limits of the
underlying insurance policy are exhausted.
and umbrella policies are also available to provide additional insurance where
consumers desire more coverage than their policies extend. These policies are
not duplicative because they are not triggered until the policy limits of the
underlying insurance policy are exhausted.
6This
common sense conclusion is hardly controversial. Indeed, applying Michigan law,
we have previously applied an exclusion clause using comparable “same or
similar coverage” language without any discussion of potential ambiguity. See
McGow v. McCurry, 412 F.3d 1207, 1218-20 (11th Cir. 2005) [18 Fla. L.
Weekly Fed. C671a], abrogated on other grounds by Diamond Crystal Brands,
Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249 (11th Cir. 2010) [22 Fla. L.
Weekly Fed. C455a].
common sense conclusion is hardly controversial. Indeed, applying Michigan law,
we have previously applied an exclusion clause using comparable “same or
similar coverage” language without any discussion of potential ambiguity. See
McGow v. McCurry, 412 F.3d 1207, 1218-20 (11th Cir. 2005) [18 Fla. L.
Weekly Fed. C671a], abrogated on other grounds by Diamond Crystal Brands,
Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249 (11th Cir. 2010) [22 Fla. L.
Weekly Fed. C455a].
7Our
decision in Wall 2 Walls, like Moore, also relied on the longstanding Florida
rule that ambiguous policy provisions ought to be construed in favor of
coverage. See Wall 2 Walls, 592 F. App’x at 770. We do not quibble with
this doctrinal point. We simply conclude the meaning of the policy provision
before us is plain and susceptible to only a single reasonable interpretation.
decision in Wall 2 Walls, like Moore, also relied on the longstanding Florida
rule that ambiguous policy provisions ought to be construed in favor of
coverage. See Wall 2 Walls, 592 F. App’x at 770. We do not quibble with
this doctrinal point. We simply conclude the meaning of the policy provision
before us is plain and susceptible to only a single reasonable interpretation.
* * *