Ellsworth v. Insurance Co. of North America, BL-463

• Decision Date: 29 April 1987
• Docket Number: No. BL-463,BL-463
• Citation: 12 Fla. L. Weekly 1115,508 So.2d 395
• Parties: 12 Fla. L. Weekly 1115 Warren A. ELLSWORTH and Edith Ellsworth, Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
• Court: Florida District Court of Appeals

Page 395

508 So.2d 395

12 Fla. L. Weekly 1115

Warren A. ELLSWORTH and Edith Ellsworth, Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.

No. BL-463.

District Court of Appeal of Florida,

First District.

April 29, 1987.

Rehearing Denied July 1, 1987.

Walter A. Steigleman and W. Dennis Brannon, of Dewrell, Blue & Brannon, Fort Walton Beach, for appellants.

S. William Fuller, Jr. and P. Scott Mitchell, of Fuller & Johnson, Tallahassee, for appellee.

JOANOS, Judge.

Appellants Warren A. Ellsworth and Edith Ellsworth (the Ellsworths) seek review of a trial court ruling which held their business insurance policy with Insurance Company of North America (INA) did not provide uninsured motorist coverage. The questions presented are (1) whether this court should take judicial notice of a staff summary and analysis of the 1984 bill amending the uninsured motorist statute, (2) whether the trial court erred in finding appellants had no uninsured motorist coverage, and (3) whether the trial court erred in failing to admit the staff summary and analysis into evidence. We reverse.

In 1979, the Ellsworths purchased Nina Michel, Inc., a small dress shop. At the time of purchase, the Ellsworths maintained the comprehensive businessowners insurance policy with Peninsula Fire Insurance Company which had been carried by the former owner. Initially, the business was operated solely by Mrs. Ellsworth. Mrs. Ellsworth owned a 1978 Lincoln, titled in her name, which she used in the business to transport clothing to style shows, to make buying trips, and for other general business transportation purposes. The Lincoln was insured by Aetna. According to the Ellsworths, their Aetna agent discussed the specifics of uninsured motorist (UM) coverage with them. For reasons of economy, the Ellsworths rejected UM coverage on the Lincoln. In 1980, after suffering health problems which necessitated his leaving his position with the county, Mr. Ellsworth joined his wife in operation of the business.

The businessowners insurance policy with Peninsula which the Ellsworths had assumed when they purchased the business, provided, among other things, automobile liability coverage, termed excess coverage in the policy. In March 1982 Peninsula notified the Ellsworths of a premium increase and the threat of nonrenewal unless they made improvements in the shop's security system. The Ellsworths consulted another agent, David Stannard, who advised that with a slight increase over their existing premiums, an INA policy would provide broader coverage than the existing policy with no change required in their security system. Subsequently, Stannard wrote up the INA policy for the Ellsworths, with Nina Michel, Inc. as the sole named insured.

The record reflects that the Ellsworths' discussions with Stannard concerning coverage under the INA policy were directed, for the most part, to obtaining insurance coverage similar to that provided by the former policy with Peninsula. Mrs. Ellsworth testified that when Stannard delivered the policy, he explained some of the matters contained therein; and she looked through it to assure herself that the coverage under the policy was in compliance with the requirements of the plaza in which Nina Michel, Inc. is located, and that it provided protection for the use of her car on company business. In light of their extensive discussions with their Aetna agent concerning automobile policies and UM coverage, the Ellsworths were aware that UM coverage is provided unless expressly rejected. The Ellsworths did not, however, discuss UM coverage with Stannard.

On August 13, 1982, while driving the Lincoln on a business trip, the Ellsworths were involved in a head-on collision with a 20-ton truck. It is undisputed that the accident was caused by the driver of the truck, and that he was an underinsured motorist. The Ellsworths suffered severe personal injuries. Although they received $30,000 from the truck driver's liability carrier, INA does not dispute the fact that the other driver was underinsured for the injuries suffered by the Ellsworths.

After INA denied the Ellsworths' claim for UM benefits, they filed a two-count complaint seeking UM coverage by operation of Florida law and an award of damages under that coverage for their personal injuries. The trial court had the benefit of deposition and live testimony, including extensive testimony from an expert witness called on behalf of INA. On the final day of the trial court proceedings, INA filed a memorandum of law in which it asserted, for the first time, that the UM provisions are inapplicable because the comprehensive general liability policy at issue did not mention any specifically insured or identified motor vehicle. In support of its contention, INA argued the 1984 amendment to section 627.727, Florida Statutes, served to clarify the 1981 statute and made clear the legislative intent that the 1981 statute should apply only to classic automobile insurance policies. To demonstrate that under the 1981 version of section 627.727 UM coverage was available, the Ellsworths attempted to introduce the legislative Staff Summary and Analysis prepared during the 1984 legislative session, in connection with House Bill 319. INA did not contest the authenticity of the Staff Summary and Analysis, but objected to its admission on hearsay grounds. The trial court sustained the objection, and in the final judgment concluded that, as a matter of law, UM coverage was not provided by the businessowners insurance policy.

Filed contemporaneously with their initial briefs in this cause, the Ellsworths filed a motion requesting this court to take judicial notice of the excluded Staff Summary and Analysis. Matters which must be judicially noticed are set forth in section 90.201 of the Evidence Code, and matters which may be judicially noticed appear in section 90.202. Section 90.203, Florida Statutes (1985), provides that a court shall take judicial notice of any matter in section 90.202--

when a party requests it and:

(1) Gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to meet the request.

(2) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.

In Hillsborough County Board of County Commissioners v. Public Employees

Relations Commission, 424 So.2d 132 (Fla. 1st DCA 1982), this court held that the Florida Evidence Code does not apply to appellate proceedings, because the general law of evidence did not apply to appellate proceedings prior to the effective date of the Code. See s. 90.103(1), Fla.Stat. (1985).

We recognize that in appropriate circumstances an appellate court may take judicial notice of its own records, and that in certain circumstances such judicial notice is mandatory. See Hillsborough County, 424 So.2d at 134, and cases cited therein. Nevertheless, an appeal "is a proceeding to review a judgment or order of a lower tribunal based upon the record made before the lower tribunal." Id. Although Florida appellate courts may consider legislative staff summaries in construing statutes, judicial notice clearly is not a prerequisite to that consideration. Such reports may be consulted in the course of the court's independent research, through advocacy, or through introduction into the record at the trial level by judicial notice. Department of Health & Rehabilitative Services v. Shatto, 487 So.2d 1152 (Fla. 1st DCA 1986); Jacksonville Electric Authority v. Department of Revenue, 486 So.2d 1350 (Fla. 1st DCA), review denied, 492 So.2d 1331 (Fla.1986). Because we conclude that appellate judicial notice of a legislative Staff Summary and Analysis would be incompatible with traditional standards of appellate practice, we deny appellants' motion to take judicial notice.

In a similar vein, we find the trial court did not err in excluding from evidence the 1984 legislative Staff Summary and Analysis. This analysis, which purports to explain the effect of the 1984 amendments, is not determinative of legislative intent with respect to the 1981 version of section 627.727. Accordingly, we affirm the trial court's ruling in this regard.

However, our examination of the policy which is the subject of this appeal demonstrates the trial court erred in determining the Ellsworths had no UM coverage under their comprehensive businessowners policy. The businessowners' policy at issue in this case excludes from business liability coverage bodily injury or property damage "arising out of the ownership, ... operation, use, ... of (1) any automobile, ... which you own or operate ..." Then, under "Additional Liability Coverage," an exception to this exclusion is carved out for "(1) the use in your business of a non-owned private passenger automobile by anyone (other than [you, yourself] )."

In the policy glossary, "non-owned automobiles"--

means automobile not owned in whole or part by the named insured. In addition, such automobile may not be registered in the name of or hired or leased by the named insured. Finally, such automobile may not be loaned to the named insured. In this definition, "named insured " includes any partner, if the named insured is a partnership.

The policy defines "named insured" as--

the person, organization or other entity named on page one of the policy. Throughout the policy, named insured is also referred to as "you" and your.

And, in turn, "you" and "your" means the named insured, and unless "specifically limited to the named insured, those described below are included."

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(c) If the named insured is other than an individual, partnership or joint venture, the executive officers or directors of the organization so named are included while acting within the scope of their duties.

Further, under subsection (g) appears the following:

(g) Under...