Category 5 Mgmt. Grp, LLC v. Companion Prop. & Cas. Ins. Co.

• Decision Date: 16 November 2011
• Docket Number: No. 1D11–1007.,1D11–1007.
• Citation: 76 So.3d 20
• Parties: CATEGORY 5 MANAGEMENT GROUP, LLC, Appellant, v. COMPANION PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

76 So.3d 20

CATEGORY 5 MANAGEMENT GROUP, LLC, Appellant,
v.
COMPANION PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.

No. 1D11–1007.

District Court of Appeal of Florida, First District.

Nov. 16, 2011.

[76 So.3d 22]

Kevin F. Masterson, Mobile, Alabama, for Appellant.

Christopher W. Wadsworth and Mark A. Levine of Wadsworth Huott, LLP, Miami, for Appellee.

SWANSON, J.

Appellant seeks review of a summary final judgment entered for appellee after the trial court found appellee had no duty to defend appellant in a personal injury action that fell within the automobile exclusion of the parties' commercial general liability policy. Because we agree with appellant that the complaint in the personal injury action alleged facts that fairly brought the suit outside the automobile exclusion, we reverse the summary final judgment and remand for further proceedings.

Appellant, a limited liability company owned by John and Dorothy Sims and located in Pensacola, purchased a commercial general liability policy from appellee for one year commencing on June 1, 2007, and ending on June 1, 2008. In the summer of 2007, appellant was hired by Young's General Contracting to supervise subcontractors and their crews performing cleanup operations in New Orleans following Hurricane Katrina. One of these subcontractors was Colonel McCrary Trucking, which performed certain transportation-related services at the project site. Joe Johnson, an employee of Colonel McCrary Trucking, worked at the site. On July 11, 2007, while driving a pickup truck owned by R.D. Construction (a subcontractor of Colonel McCrary Trucking), Johnson ran a stop light in Alabama and struck a car occupied by the Stewart family, severely injuring three family members.

The Stewart family subsequently filed a complaint in Alabama state court against several defendants, including Joe Johnson, R.D. Construction, Colonel McCrary Trucking, Young's General Contracting, and appellant, for “Negligence and/or Wantonness,” Negligent and/or Wanton Hiring,” “Negligent and/or Wanton Training,” “Negligent and/or Wanton Supervision,” and “Negligent/Wanton Entrustment.” In particular, the complaint contained the following general allegation:

37. Defendant Joe Edward Johnson was driving a truck owned by defendant R.D. Construction at the time of the wreck and prior to the wreck and was an employee of Colonel McCrary Trucking at the time of the wreck. Defendant Joe Edward Johnson was operating said vehicle with permissive use on behalf of Colonel McCrary Trucking and for the benefit and economic well being of all of the defendants.

In addition, the complaint alleged as to each count that “Joe Edward Johnson was hired by or under the direction, control and supervision of John Sims and/or Dorothy Sims who are major shareholders and/or managers of” appellant.

Shortly thereafter, appellant sought a legal defense and indemnity from appellee. After reviewing the claim, appellee denied a defense and indemnity based on the following

[76 So.3d 23]

exclusion contained in the insurance policy:

This insurance does not apply to:

...

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 applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by the insured, if the “occurrence” which caused the “bodily injury” or “property damage” involved the ownership,...