Allstate Ins. Co. v. Safer

• Decision Date: 16 April 2004
• Docket Number: No. 3:02CV808J-32HTS.,3:02CV808J-32HTS.
• Citation: 317 F.Supp.2d 1345
• Parties: ALLSTATE INSURANCE COMPANY, Plaintiff, v. Louis SAFER, an individual d/b/a Safer Distributors, Megan Kammerer, individually an as personal representative of the Estate of Ja Michael Kammerer, and as parent and natural guardian of Hailey Kammerer and James Michael Kammerer, Defendants.
• Court: U.S. District Court — Middle District of Florida

317 F.Supp.2d 1345

ALLSTATE INSURANCE COMPANY, Plaintiff, v. Louis SAFER, an individual d/b/a Safer Distributors, Megan Kammerer, individually an as personal representative of the Estate of Ja Michael Kammerer, and as parent and natural guardian of Hailey Kammerer and James Michael Kammerer, Defendants.

No. 3:02CV808J-32HTS.

United States District Court, M.D. Florida, Jacksonville Division.

April 16, 2004.

COPYRIGHT MATERIAL OMITTED

Ronald L. Kammer, Esq., Hinshaw & Culbertson, Miami, FL.

Donald W. St. Denis, Esq., Anderson, St. Denis & Glenn, Jacksonville, FL.

Brian William Davey, Esq., Anderson, St. Denis & Glenn, Jacksonville, FL.

Gerald W. Weedon, Esq., Marks, Gray, P.A., Jacksonville, FL.

Nicholas V. Pulignano Jr., Esq., Marks, Gray, P.A., Jacksonville, FL.

Terrance E. Schmidt, Bledsoe, Schmidt, Moonly, & Roberson, P.A., Jacksonville, FL.

ORDER

CORRIGAN, District Judge.

This case is before the Court on the parties' cross-motions for summary judgment. On November 14, 2003, Plaintiff Allstate Insurance Company ("Allstate") filed a Motion for Summary Judgment on Complaint for Declaratory Relief. (Doc. 60). Defendant Megan Kammerer and defendant Louis Safer filed separate consolidated responses and motions for summary judgment on December 12, 2003. (Docs. 61 & 63). Allstate filed a separate response to each of defendants' motions for summary judgment. (Docs. 66 & 68). The Court heard oral argument on the cross-motions on March 23, 2004. (Doc. 70).

I. Background

In December of 2000, Allstate issued a commercial general liability insurance policy to defendant Safer for the period between December 10, 2000, and December 10, 2001. Safer is a sole proprietor doing business as Safer Distributor. The commercial general liability policy¹ includes the following relevant provisions:

COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. Insuring Agreement

a. We [Allstate] will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply....

2. Exclusions ...

g. Aircraft, Auto Or Watercraft

"Bodily injury" or "property damage" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and "loading or unloading."

This exclusion does not apply to: ...

(3) Parking an "auto" on, or on the ways next to premises you own or rent, provided the "auto" is not owned by or rented or loaned to you or the insured. ["you" is also defined as the named insured].

(CGL Policy at 1, 3).

On June 4, 2001, a vehicle driven by Megan Kammerer was struck by a tractor trailer owned by Modlin's Trucking, Inc., and driven by Donald McGuirt. Tragically, this collision, which occurred at the intersection of Phillips Highway and Gordon Street in Jacksonville, Florida, resulted in the death of Ja Michael Kammerer. This intersection is adjacent to Safer Distributor, which is located at 5970 Phillips Highway. Megan Kammerer has brought a state court action against Safer claiming that a box truck on Safer's property was parked in such a manner that it obstructed motorists' view of the intersection and caused the collision of the Kammerer and Modlin's Trucking, Inc. vehicles.

II. Procedural History

Allstate's Amended Complaint for Declaratory Relief, filed in this Court, requests that the Court declare that Allstate has no duty to defend or indemnify Safer in the state court action brought by Kammerer as a result of the June 4, 2001 accident. (Doc. 14). On June 30, 2003, Allstate filed a motion for summary judgment based on the state court negligence complaint brought by Kammerer against Safer. (Doc. 38). Due to the need to resolve certain discovery issues, the Court postponed the due date of defendants' responses. (Doc. 51). However, on October 17, 2003, Allstate filed a notice which indicated that Kammerer had filed a Second Amended Complaint in the state court action against Safer on September 10, 2003. (Doc. 55).² Allstate subsequently filed an agreed motion to supplement its motion for summary judgment so that it could address the new allegations made in Kammerer's Second Amended Complaint. (Doc. 57). The Court then held a status conference during which the parties agreed that this case involved solely issues of law and should be decided on cross-motions for summary judgment. (Doc. 58). The cross-motions for summary judgment are now ripe for the Court's consideration. All parties agree that Florida law applies.

III. Discussion

A. Duty to Defend

The issue of whether an insurer has a duty to defend an insured is resolved by looking at the allegations of the complaint filed by a third party against the insured. Biltmore Const. Co. v. Owners Ins. Co., 842 So.2d 947, 949 (Fla. 2d DCA 2003), Acceptance Ins. Co. v. Bates, Dunning & Associates, Inc., 858 So.2d 1068, 1069 (Fla. 3d DCA 2003) (citation omitted), State Farm Fire & Cas. Co. v. Higgins, 788 So.2d 992, 995 (Fla. 4th DCA 2001). "The insurer must defend if the complaint, when fairly read, alleges facts that create potential coverage under the policy." Acceptance Ins. Co., 858 So.2d at 1069. However, "there is no obligation on an insurer to defend an action against its insured when the pleading in question shows the applicability of a policy exclusion." Id.³

1. Arising Out of the Ownership, Maintenance or Use of an Auto

The language "arising out of the ownership, maintenance or use ... of an auto" is "broader in meaning than the term `caused by' and means `originating from,' `having its origin in,' `growing out of,' `flowing from,' ... or `having a connection with' the use of the vehicle." Hagen v. Aetna Cas. & Sur. Co., 675 So.2d 963, 965 (Fla. 5th DCA 1996) (en banc), rev. denied, 683 So.2d 483 (Fla.1996) (citing Nat'l Indem. Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971)); Alligator Enterprises, Inc. v. Gen. Agent's Ins. Co., 773 So.2d 94, 95 (Fla. 5th DCA 2000), rev. denied, 790 So.2d 1101 (Fla.2001); Ohio Cas. Ins. Co. v. Cont'l Cas. Co., 279 F.Supp.2d 1281, 1284 (S.D.Fla.2003); Heritage Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 657 So.2d 925, 927 (Fla. 1st DCA 1995), rev. denied, 665 So.2d 220 (Fla.1995); Carpenter v. Sapp, 569 So.2d 1291, 1293 (Fla. 2d DCA 1990), rev. denied, Allstate Ins. Co. v. Carpenter, 581 So.2d 163 (Fla.1991); St. Paul Fire & Marine Ins. Co. v. Thomas, 273 So.2d 117, 120 (Fla. 4th DCA 1973); Padron v. Long Island Ins. Co., 356 So.2d 1337, 1338 (Fla. 3d DCA 1978); Watson v. Watson, 326 So.2d 48, 49 (Fla. 2d DCA 1976); Federal Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 804 (10th Cir.1998) (Collecting cases from numerous jurisdictions and concluding that "the general consensus [is] that the phrase `arising out of' should be given a broad reading such as `originating from' or `growing out of' or `flowing from' or `done in connection with' — that is, it requires some causal connection to the injuries suffered, but does not require proximate cause in the legal sense."). Additionally, the phrase "arising out of the ownership, maintenance or use of an auto" is not ambiguous. See Hagen, 675 So.2d at 966; Ohio Cas., 279 F.Supp.2d at 1284; Am. Sur. & Cas. Co. v. Lake Jackson Pizza, Inc., 788 So.2d 1096, 1099-1100 (Fla. 1st DCA 2001), rev. denied, 814 So.2d 439 (Fla.2002); Alligator Enterprises, 773 So.2d at 94-95; Cesarini v. Am. Druggist Ins. Co., 463 So.2d 451, 452 (Fla. 2d DCA 1985).⁴

Alligator Enterprises involved an automobile collision between a family vehicle and a tractor trailer owned by Alligator which allegedly "had been negligently parked on the roadway outside of Alligator's premises by an Alligator employee." 773 So.2d at 94-95. Alligator's commercial general liability insurer brought a declaratory judgment action due to its uncertainty as to whether it had a duty to defend Alligator in the lawsuit brought by the family. Id. at 95. The commercial general liability policy contained an exclusionary clause that stated that the insurance did not apply to "`[b]odily injury' or `property damage' arising out of the ownership, maintenance, use or entrustment to others of any aircraft, `auto' or water craft owned or operated by or rented or loaned to any insured. Use includes operation and `loading or unloading.'" Id. The Alligator Enterprises court held that "[w]ithout question the injury here, as alleged in the ... complaint, arose out of the ownership, maintenance or use of Alligator's tractor and trailer for which there is no coverage under the policy in question." Id. at 96. The court reasoned that "[w]here a policy provision is clear and unambiguous, it should be enforced according to its terms, whether it is a basic policy provision or an exclusionary provision." Id. at 95. The court also rejected Alligator's contention that "since the tractor and trailer was neither being operated nor in the process of loading or unloading, the exclusion does not apply ...." Id.

The exclusionary clause in the Safer commercial general liability policy is identical to the exclusionary clause at issue in Alligator Enterprises. Both cases also involve parked autos. (Kammerer Compl. at ¶¶ 13, 22).⁵ Additionally, the language of exception (3) to the auto exclusion at issue in this case strongly suggests by negative implication that bodily injuries arising from autos that Safer owns and parked on his business premises are excluded from the commercial general liability policy. Exception (3) provides:

This exclusion does not apply to: ...

(3) Parking an "auto" on, or on the ways next to premises you own or rent, provided that the "auto" is not owned by or rented or...