Esurance Property & Casualty Insurance Co. v. Vergara

Decision Date29 June 2021
Docket Number20-CV-81754-RUIZ/REINHART
CourtU.S. District Court — Southern District of Florida




United States District Court, S.D. Florida

June 29, 2021



This case presents the question whether a ride-sharing vehicle falls under an insurance policy exclusion for a “public or livery conveyance.” I find that it does. I therefore RECOMMEND that Plaintiff's Motion for Summary Judgment (ECF No. 54) be GRANTED and the Defendants' Motion for Summary Judgment (ECF No. 60) be DENIED.


While driving his 2018 Kia Sorrento as an “Uber Driver-Partner” on September 22, 2019, Aaron Abella got into an accident with cars driven by Khrystal Vergara and Lara Palmer. Mr. Abella had two passengers in his car at the time of the accident -Ryan Alli and Veda Sati Sadhu. Ms. Vergara and her husband, Ricardo Vergara-Gonzalez, sued Mr. Abella and his wife, Eliana A. Oliviera de Souza Abella (who was the co-owner of the Kia Sorrento), in Palm Beach County Circuit Court for personal injuries arising from the accident. Mr. Abella's wife has been dismissed with prejudice from the state court lawsuit. ECF No. 49-4.

At the time of the accident, the Kia Sorrento was insured by Esurance Property and Casualty Insurance Company under policy number PAFL-007437044 (“the Policy”). Mr. Abella was a named insured under the Policy. Policy Exclusion 1(G) states:

We” have no duty to defend and do not provide Liability Coverage for any “insured”: . . . For that “insured's” liability arising out of the ownership or operation of a vehicle while it is used as a public or livery conveyance

DE 49-1 at 15 (“the Livery Exclusion”).

Uber is a ride-sharing service, also known as a Transportation Network Company. Uber is available to the general adult public, subject to Uber's Community Guidelines. Customers use a freely-available software program called an app to notify the Uber network that they would like a ride from their current location to a different location. The Uber network then notifies Uber drivers of the customer's request.

An individual driver can, but is not required to, offer to pick up the customer. Uber drivers are prohibited from discriminating against someone based on traits such as age, color, disability, gender identity, marital status, national origin, race, religion, sex, or sexual orientation. Uber Community Guidelines state: “Intentionally refusing or canceling requests solely for the purpose of avoiding a particular neighborhood due to the characteristics of the people or businesses that are located in that area is not allowed.”

If at least one driver offers to pick up the customer, the Uber network will pair the customer with a driver. The driver then picks up the customer and transports the customer to the desired location in return for a fee.

Uber drivers must personally own the vehicle they will use for Uber rides or must be listed as an insured driver on the vehicle's insurance policy. Some Uber drivers are exclusively employed as Uber drivers and others are Uber drivers as supplemental employment. Further, the vehicles used by an Uber driver might be exclusively used for transporting Uber passengers or the vehicles used by an Uber driver may be used in a personal capacity in addition to transporting Uber passengers.

In this case, there is no evidence whether Mr. Abella was exclusively employed as an Uber driver, or whether Mr. Abella drove for Uber as supplemental employment. Additionally, there is no evidence whether Mr. Abella used his vehicle exclusively for transporting Uber passengers, or whether he used the vehicle in a personal capacity in addition to transporting Uber passengers.


Judge Ruiz has referred to me the parties' cross motions for summary judgment on all three Counts of the Second Amended Complaint (“SAC”). ECF No. 57; ECF Nos. 54, 60. The SAC seeks declaratory judgments that (1) the Exclusion applies, (2) Esurance has no duty to defend the state court lawsuit, and (3) Esurance has no duty to indemnify for any damages arising from the accident. ECF No. 49. I have reviewed the motions, the responses, the replies, and the statements of material facts.

As both parties ask the Court to determine, as a matter of law, Esurance's obligations under the Policy, I address both summary judgment motions together.

Summary Judgment

The legal standard for summary judgment under Federal Rule of Civil Procedure 56 is well-settled:

A party may obtain summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The parties may support their positions by citation to the record, including inter alia depositions, documents, affidavits, or declarations Fed.R.Civ.P. 56(c). An issue is genuine if “a reasonable trier of fact could return judgment for the non-moving party.” A fact is material if it “might affect the outcome of the suit under the governing law.” The Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in its favor
The moving party shoulders the initial burden of showing the absence of a genuine issue of material fact. Once this burden is satisfied, “the nonmoving party ‘must make a sufficient showing on each essential element of the case for which he has the burden of proof.'” Accordingly, the non-moving party must produce evidence, going beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designating specific facts to suggest that a reasonable jury could find in his favor.

Rubenstein v. Fla. Bar, 72 F.Supp.3d 1298, 1307-08 (S.D. Fla. 2014) (J. Bloom) (citations omitted).

Declaratory Judgment

The Declaratory Judgment Act provides that a federal court “may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201. “[T]he Federal Declaratory Judgment Act does not create any substantive rights or causes of action.” Balgobin v. JPMorgan Chase Bank, N.A., No. 3:18-CV-00114, 2019 WL 1046835, at *5 (S.D. Tex. Feb. 15, 2019) (J. Edison) (internal quotations and citation omitted).

“[A] declaratory judgment serves to clarify the legal relations and is not for the purpose of making factual determinations.” Medmarc Casualty Ins. Co. v. Pineiro & Byrd PLLC, 783 F.Supp.2d 1214, 1216 (S.D. Fla. 2011) (J. Marra). A declaratory judgment does not decide historical disputes. It addresses only present and future legal rights and relationships. “Past injuries alone generally do not establish declaratory judgment jurisdiction.” Bacardi USA, Inc. v. Young's Market Co., 273 F.Supp.3d 1120, 1128 (S.D. Fla. 2016) (J. Seitz). “[Q]uestions regarding whether torts have been committed or a contract was adequately performed is unrelated to the purpose behind the Declaratory Judgment Act.” Sierra Equity Grp., Inc. v. White Oak Equity Partners, LLC, 650 F.Supp.2d 1213, 1231 (S.D. Fla. 2009) (J. Marra). The Court has “unique and substantial discretion in deciding whether to declare the rights of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995), cited in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136 (2007). That discretion is “exceptionally broad.” Otwell v. Alabama Power Co., 747 F.3d 1275, 1280 (11th Cir. 2014); see Stevens v. Osuna, 877 F.3d 1293, 1311 (11th Cir. 2017) (internal quotations and citation omitted) (explaining that “even when a civil action satisfies federal subject matter jurisdictional prerequisites-a district court still maintains discretion about whether and when to entertain an action under the Declaratory Judgment Act”). “‘In the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial administration.'” Stevens, 877 F.3d at 1311 (quoting Wilton, 515 U.S. at 288).

Contract Interpretation of an Insurance Policy

“In Florida, ‘[w]here the duty of an insurer rests upon the legal effect of the provisions of an insurance policy, the interpretation of the policy is a matter of law for the Court to determine, and is therefore amenable to summary judgment.'” Sparta Ins. Co. v. Colareta, 990 F.Supp.2d 1357, 1363 (S.D. Fla. 2014) (J. Rosenbaum) (quoting Great Am. Fid. Ins. Co. v. JWR Const. Servs., Inc., 882 F.Supp.2d 1340, 1350 (S.D. Fla. 2012) (J. Huck)). “Insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties.” Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So.2d 467, 470 (Fla. 1993). “[A]n insurance policy should be construed in its entirety and given the construction which reflects the intent of the parties.” PowerSports, Inc. v. Royal & Sunalliance Ins. Co., 307 F.Supp.2d 1355, 1358 (S.D. Fla. 2004) (J. Ryskamp) aff'd 128 Fed.Appx. 95 (11th Cir. 2005). 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.” Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 736 (Fla. 2002) (citation omitted). The burden rests on the insurer to show that exclusions in a policy apply. See, e.g., U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1065 (Fla. 1983).

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