American Equity Ins. Co. v. Van Ginhoven
| Decision Date | 29 June 2001 |
| Docket Number | No. 5D00-2025, No. 5D00-3233. |
| Citation | 788 So.2d 388 |
| Parties | AMERICAN EQUITY INS. CO., Appellant/Cross-Appellee, v. Don VAN GINHOVEN and Jayne J. Fernandez, Appellees/Cross-Appellants. |
| Court | Florida District Court of Appeals |
Michael J. Schwartz of Freud, Abraham & Schwartz, Miami, for Appellant/Cross-Appellee.
Christopher H. Morrison of Baldwin & Morrison, P.A., Fern Park, for Appellee/Cross-Appellant, Jayne J. Fernandez.
Lawrence R. Steiner, Altamonte Springs, and Bill McCabe, Longwood, for Appellee/Cross-Appellant, Don Van Ginhoven.
This appeal involves an action for property damage to a homeowner's swimming pool caused by the negligence of the general contractor, Don Van Ginhoven, and a related declaratory judgment action to determine the extent of coverage for this damage under the contractor's commercial liability insurance policy. The homeowner, Jayne Fernandez, hired Van Ginhoven to make minor repairs to the surface of her swimming pool. Specifically, the written contract called for Van Ginhoven to make spot repairs, clean the pool surface, and replace up to six tiles. In order to do this, both Van Ginhoven and Fernandez understood that it would be necessary to drain the pool. As Van Ginhoven was draining the pool, water table pressure caused the pool to pop out of the ground, resulting in damage to the pool, pump, heating system, deck, screen enclosure and the surrounding landscaping and sprinkler system. Fernandez sued Van Ginhoven alleging that he negligently drained the pool, causing it to pop out of the ground. Van Ginhoven filed a claim with his general liability insurer, American Equity Insurance Company ("American Equity"), to cover Fernandez' damages. American Equity admitted coverage for all of Fernandez' property damage, except damage to the pool itself. American Equity filed a declaratory judgment action asserting that coverage for damage to the pool was barred by two specific policy exclusions. Those exclusions provided that its insurance did not apply to:
The liability and declaratory judgment actions were consolidated and tried together non-jury. In his corrected final judgment, the trial judge found Van Ginhoven negligent and determined that American Equity's policy covered all of the damages, including replacement of the swimming pool. The judge found Van Ginhoven and American Equity jointly and severally liable in the amount of $48,144.50 plus prejudgment interest. This amount represented the actual cost Fernandez incurred to replace the pool and repair the surrounding screen enclosure and landscaping, less allowances for upgrades. On appeal, American Equity argues that the trial court erred in determining that its policy exclusions were ambiguous. We agree and reverse.
Because the interpretation of an insurance contract is a question of law, this court is entitled to review the trial court's coverage determination de novo. See Coleman v. Florida Ins. Guar. Ass'n, Inc., 517 So.2d 686, 690 (Fla.1988)
. An appellate court is not restricted in its review powers from reaching a construction contrary to that of the trial court. See Inter-Active Services, Inc. v. Heathrow Master Ass'n., 721 So.2d 433, 434 (Fla. 5th DCA 1998). Clearly worded exclusions in an insurance policy are to be enforced as long as they are clear, unambiguous and do not violate public policy. See Hawk Termite and Pest Control, Inc. v. Old Republic Ins. Co., 596 So.2d 96, 97 (Fla. 3d DCA 1992).
The trial court found that the above mentioned exclusions were "ambiguous and subject to several differing interpretations." Notably, the trial judge failed to explain what "differing interpretations" could be gleaned from these exclusions. Presumably, his finding was based on Fernandez' arguments that the terms "real property" and "any property" are ambiguous because they are not defined in the policy and can be construed narrowly to encompass "only the spots subject to repair," or more broadly, to include "the actual pool including the pump plumbing, electrical, deck work, patio and screen enclosures." Although none of these terms are defined in the policy, failure to define them does not, by itself, create ambiguity. See State Farm Fire and Cas. Co. v. CTC Development Corp., 720 So.2d 1072 (Fla. 1998)
. Moreover, the terms "real property" and "any property" are not ambiguous. The term "real property" is a clearly understandable and defined legal term. Black's Law Dictionary defines real property as "land, and generally whatever is erected or growing upon or affixed to land." BLACK'S LAW DICTIONARY 1218, Sixth ed. (1990). Under this definition, the pool constitutes real property. Similarly, the term "any property," is equally clear. It includes all types of property, including pools. Therefore, the terms standing alone are not ambiguous.
In addition, these terms are modified by other terms within the exclusions. Specifically, the term "real property" is modified by the terms "on which you ... are performing operations." At trial, Van Ginhoven admitted that when the pool popped, he was draining the pool, and thus working on, or performing operations on the pool. Therefore, this exclusion bars coverage for property damage to "that particular part of real property on which [Van Ginhoven]... was [performing operations]." Similarly, the term "all property" is modified by the terms "your work was incorrectly performed on it." In other words, the exclusion applies to all property on which work was incorrectly performed. In his corrected final judgment, the trial judge found that "Van Ginhoven drained the swimming pool in a negligent manner, causing it to `pop' or `float'." Accordingly, the term "all property" clearly refers to the pool because Van Ginhoven incorrectly performed work on it.
Fernandez and Van Ginhoven argue that even if the exclusions are not ambiguous, the modifying terms "that particular part of" would only exclude coverage for damage to the property Van Ginhoven contracted to work on, namely, only the specified tiles and spot repairs, but not the entire pool. This argument is untenable. At the time the damage occurred, Van Ginhoven was not working, or performing operations on, the spots subject to repair, but was draining the entire pool. We agree with American Equity that these exclusions are clear, unambiguous and do not violate public policy. See Lassiter v. American States Ins. Co., 699 So.2d 768 (Fla....
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