Grover Commercial Enters., Inc. v. Aspen Ins. UK, Ltd.

• Decision Date: 07 September 2016
• Docket Number: No. 3D14–1987.,3D14–1987.
• Citation: 202 So.3d 877
• Parties: GROVER COMMERCIAL ENTERPRISES, INC., etc., Appellant, v. ASPEN INSURANCE UK, LTD., et al., Appellees.
• Court: Florida District Court of Appeals

202 So.3d 877

GROVER COMMERCIAL ENTERPRISES, INC., etc., Appellant,

v.ASPEN INSURANCE UK, LTD., et al., Appellees.

No. 3D14–1987.

District Court of Appeal of Florida, Third District.

Sept. 7, 2016.

Marin, Eljaiek & Lopez, P.L., and Anthony M. Lopez and David Garcia ; Easley Appellate Practice, PLLC, and Dorothy F. Easley, for appellant.

Berk, Merchant & Sims, PLC, and William S. Berk, Carol C. Berk, and Andrew J. Chan, for appellee Aspen Insurance UK, Ltd.

Before LAGOA, SALTER, and FERNANDEZ, JJ.

LAGOA, J.

Appellant, Grover Commercial Enterprises, Inc. (“Grover”), appeals from an order of final summary judgment entered in favor of Appellee, Aspen Insurance UK, LTD. (“Aspen”). Because we find that the trial court did not err in concluding that the “entrustment” exclusion provision (the “Entrustment Exclusion”) in Grover's commercial insurance policy precludes coverage for the company's loss, we affirm.

I. FACTUAL & PROCEDURAL BACKGROUND

Grover owns a commercial property located in Coconut Grove, Florida. Aspen insured Grover under a commercial insurance policy (the “Policy”) that covered risks of loss or damage to Grover's real property and business personal property. The Policy contained an Entrustment Exclusion that excluded from coverage loss or damage resulting from any “[d]ishonest or criminal act by you ... or anyone to whom you entrust the property for any purpose.”

After purchasing the Policy, Grover leased the insured premises to Carma, LLC (“Carma”), for the purpose of operating a restaurant known as “The Knife.” Grover also leased to Carma certain business personal property located on the premises as itemized in the lease agreement (the “Lease”). Pursuant to the Lease, Carma would be in complete and exclusive possession of all leased property upon commencement of the lease term, and upon termination of the Lease would return the real and business personal property to Grover.

While vacating the leased premises, Carma removed most of the business personal property belonging to Grover, and damaged the real property in the process. Upon later inspection, Grover's representative discovered that all of the items itemized in the Lease were missing. Grover filed a claim with Aspen for the damage, advising Aspen that Grover had sustained a loss due to Carma's “theft” and “vandalism.” Following a full investigation, Aspen denied Grover's claim, citing the Entrustment Exclusion. Aspen contended that Carma's actions constituted dishonest or criminal activity by someone to whom Grover had entrusted the property.

On September 17, 2012, Grover brought an action against Aspen for breach of contract. Both parties filed summary judgment motions. On July 18, 2014, the trial court entered an order denying Grover's motion for summary judgment, and final judgment was entered in favor of Aspen on September 17, 2014.

On appeal, Grover argues that Aspen was not entitled to summary judgment because the Policy's Entrustment Exclusion, as drafted by Aspen, is ambiguous as to whether “leasing” property to a tenant is distinct from “entrusting” property in general. Specifically, Grover asserts that the Policy's use of “entrustment” does not encompass a landlord-tenant relationship, as the term “tenant” was not specifically included in the Entrustment Exclusion. In response, Aspen asserts that it is not liable to Grover for any relevant loss because the Lease is a manifestation of the “entrustment” of commercial property from a landlord (Grover) to a tenant (Carma), and therefore Carma's removal of Grover's business personal property and damage to Grover's real property were criminal acts not covered under the Policy.

II. ANALYSIS

There is no dispute that Carma stole business personal property and damaged Grover's real property while vacating the insured premises. While the Policy insures Grover for the loss of or damage to real and business personal property and provides that “[a]ny act or neglect of any person other than you beyond your direction or control will not affect this insurance,” the Policy also contains the following Entrustment Exclusion:

We will not pay for loss or damage caused by or resulting from any of the following:

....

h. Dishonest or criminal act by you, any of your partners, members, officers, managers, employees (including leased employees), directors, trustees, authorized representatives or anyone to whom you entrust the property for any purpose:

(1) Acting alone or in collusion with others; or

(2) Whether or not occurring during the hours of employment.

This exclusion does not apply to acts of destruction by your employees (including leased employees); but theft by employees (including leased employees) is not covered.

(emphasis added). The sole question before this Court is whether Grover “entrusted” the insured property to Carma.

Insurance contracts are construed “in accordance with the plain language of the policy.” Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003) ; see also Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla.2005). The terms of an insurance policy are understood in their ordinary sense, and are to be read in a reasonable, non-technical way. See Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 736 (Fla.2002). Thus, “if 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.” Taurus Holdings, 913 So.2d at 532 (quoting Hagen v. Aetna Cas. & Sur. Co., 675 So.2d 963, 965 (Fla. 5th DCA 1996) ).

Grover urges us to apply the principle of ejusdem generis to our construction of the policy. The principle of construction known as ejusdem generis, however, is resorted to only when we must interpret policy language that is ambiguous. See, e.g., Nova Cas. Co. v. Waserstein, 424 F.Supp.2d 1325, 1336 (S.D.Fla.2006) ; accord Jacobo v. Bd. of Trs. of the Miami Police, 788 So.2d 362, 364 (Fla. 3d DCA 2001). A policy term is not ambiguous “simply because it is complex or requires analysis,” Garcia v. Federal Ins. Co., 969 So.2d 288, 291 (Fla.2007), or because the relevant language is not defined in the policy. See Swire Pac., 845 So.2d at 166 ; accord Old Dominion Ins. Co. v. Elysee, Inc., 601 So.2d 1243, 1245 (Fla. 1st DCA 1992). Absent ambiguity, the court's role is to apply the plain language of the policy, as the best indicator of the parties' intent, and “[w]e cannot place limitations upon the plain language of a policy provision simply because we may think it should have been written that way.” Taurus Holdings, 913 So.2d at 538 (quoting Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1139 (Fla.1998) ).

The parties do not dispute that Carma took Grover's business personal property and damaged Grover's real property. Aspen therefore bore the burden to establish, under the rules of construction discussed above, that Grover's loss was excluded from coverage. Castillo v. State Farm Fla. Ins. Co., 971 So.2d 820, 824 (Fla. 3d DCA 2007) (“Once the insured establishes a loss apparently within the terms of an all-risk policy, the burden shifts to the insurer to prove that the loss arose from a cause which is excepted.” (quoting B & S Assocs., Inc. v. Indem. Cas. & Prop., Ltd.,

641 So.2d 436, 437 (Fla. 4th DCA 1994) )).

Neither the Policy nor Florida's insurance code define the word “entrust,” and so we must look to the word's plain meaning, i.e., the word's accepted and ordinary meaning. See, e.g., Garcia, 969 So.2d at 291–92. “Entrust” is defined as ‘ “to confer a trust on,” or “to commit to another with confidence.” ’ Neighborhood Invs., LLC v. Kentucky Farm Bureau Mut. Ins. Co., 430 S.W.3d 248, 253–54 (Ky.Ct.App.2014) (quoting Merriam–Webster Collegiate Dictionary (11th ed.2005)); see also F.D. Stella Prods. Co. v. Gen. Star Indem. Co., No. 03 C 5151, 2005 WL 3436388, at *4–5, 2005 U.S. Dist. LEXIS 32793, at *13–14 (N.D.Ill. Dec. 12, 2005) (quoting definition of “entrust” from Webster's Third New International Dictionary as “1. to confer trust upon; deliver something to (another) in trust. 2. to commit or surrender to another with a certain confidence regarding his care, use or disposal of”). We do not find the term “entrust” to be ambiguous, and based...