Heritage Ins. Co. of America v. Cilano, s. 82-981

• Citation: 433 So.2d 1334
• Decision Date: 06 July 1983
• Docket Number: Nos. 82-981,82-1270,s. 82-981
• Parties: HERITAGE INSURANCE COMPANY OF AMERICA, an Illinois corporation, Appellant, v. Frank CILANO, as Trustee of a dissolved corporation known as Best Point Corporation, a Florida corporation, and Richard Michaud, Appellees.
• Court: Court of Appeal of Florida (US)

Page 1334

433 So.2d 1334

HERITAGE INSURANCE COMPANY OF AMERICA, an Illinois

corporation, Appellant, v. Frank CILANO, as Trustee of a dissolved corporation known as

Best Point Corporation, a Florida corporation, and

Richard Michaud, Appellees.

Nos. 82-981, 82-1270.

District Court of Appeal of Florida,

Fourth District.

July 6, 1983.

Daniel W. Levin, Miami, for appellant.

Dewey H. Varner, Jr., and Preston Mighdoll of Kohl, Springer, Springer, Varner, Mighdoll & Salnick, Palm Springs, for appellees.

ANSTEAD, Judge.

This is an appeal of a final summary judgment declaring that Frank Cilano, as Trustee of a dissolved corporation known as Best Point Corporation, is covered under a liability insurance policy issued by Heritage Insurance Company of America.

The facts are not in dispute. Cilano operated a restaurant that sold liquor under a license that restricted liquor sales to 49 percent of the restaurant's total revenue. Cilano was sued by an individual who was injured at this restaurant during a fight. Cilano's restaurant was insured by Heritage, and he interpled Heritage as a third party defendant after Heritage denied coverage of this incident. Both parties agree that the relevant portions of the insurance policy are exclusion (h) and a provision referred to as the Host Liquor Law Liability Coverage clause. Exclusion (h) states that the policy shall not apply:

(h) to bodily injury or property damage for which the insured or his indemnitee may be held liable

(1) as a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages, or

(2) if not so engaged, as an owner or lessor of premises used for such purposes, if such liability is imposed

(i) by, or because of the violation of, any statute, ordinance or regulation pertaining to the sale, gift, distribution or use of any alcoholic beverage, or

(ii) by reason of the selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person,

but part (ii) of this exclusion does not apply with respect to liability of the insured or his indemnitee as an owner or lessor described in (2) above.

The Host Liquor Law Liability Coverage clause provides:

IV. HOST LIQUOR LAW LIABILITY COVERAGE

Exclusion (h) does not apply with respect to liability of the insured or his indemnitee arising out of the giving or serving of alcoholic beverages at functions incidental to the named insured's business, provided the named insured is not engaged in the business of manufacturing, distributing, selling or serving of alcoholic beverages.

When the terms of an insurance policy are clear and unambiguous the terms must be applied as written, the court not being free to reshape the...