Landis v. Allstate Ins. Co.
| Decision Date | 13 July 1989 |
| Docket Number | Nos. 71691,71910,s. 71691 |
| Parties | 14 Fla. L. Weekly 357 Tiffany Leigh LANDIS, etc., et al., Petitioners, v. ALLSTATE INSURANCE COMPANY, etc., et al., Respondents. Tiffany Leigh LANDIS, et al., Ashley Perez, et al., and Jonathan Cousino, et al., Petitioners, v. ALLSTATE INSURANCE COMPANY, etc., et al., Respondents. |
| Court | Florida Supreme Court |
Patrice A. Talisman of Daniels & Hicks, P.A., and Adams, Hunter, Angones, Adams, Adams & McClure, Edward A. Perse of Horton, Perse & Ginsburg and Ratiner & Glinn, P.A., and Edward S. Schwartz of the Law Offices of Philip M. Gerson, P.A., Miami, for petitioners.
Sharon Lee Stedman and Lori J. Caldwell of Rumberger, Kirk, Caldwell, Cabaniss, Burke & Wechsler, Orlando, and Wayne Richardson of Whitelock & Richardson, Miami, for respondents.
George A. Vaka of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, amicus curiae for Aetna Cas. and Sur. Co., Nationwide Ins. Co., The Nat. Ass'n of Independent Insurers and The Alliance of American Insurers.
The plaintiffs in this personal injury action petition this Court to review the decision of the Third District Court of Appeal in Landis v. Allstate Insurance Co., 516 So.2d 305 (Fla. 3d DCA 1987), in which the court certified that its decision was in direct and express conflict with Zordan ex rel. Zordan v. Page, 500 So.2d 608 (Fla. 2d DCA 1986), review denied, 508 So.2d 15 (Fla.1987). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons which follow, we approve the opinion of the Third District Court of Appeal.
The defendants in the underlying action, Illeana and Frank Fuster, operated a licensed child care facility in their home in Dade County, Florida. The parents of several of the children under the Fuster's care brought an action alleging gross negligence and intentional harm stemming from the allegations that the Fusters sexually battered the children while they were under the Fusters' care. Both Frank and Illeana Fuster were convicted of the criminal charges of sexual battery of the children left in their care. State v. Fuster, No. 84-19728 (Fla. 11th Cir.Ct.1984).
Allstate, which had issued a homeowners policy to the Fusters, brought a declaratory action to determine its rights and responsibilities in defending and covering the Fusters in this action. The trial court granted Allstate's motion for summary judgment, ruling that the "business pursuits" exclusion of the homeowner's policy applied, denying coverage for bodily injuries occurring while the insureds were engaged in a business pursuit, namely babysitting the children. The Third District Court affirmed the ruling, although it did so on the basis of the policy's "intentional acts" exclusion which denied coverage for bodily injury intentionally caused by an insured person.
The issues before us involve questions of the applicability of both policy exclusions to the facts of this case. The "business pursuits" exclusion of Allstate's homeowners policy with the Fusters reads:
We do not cover bodily injury or property damage arising out of the business pursuits of an insured person.
We do cover:
(a) activities normally considered non-business;
(b) the occasional and part-time business activities of an insured person who is a student under 21 years of age.
The policy goes on to define business, in pertinent part, as "any full or part time trade, profession or occupation and the use of any part of any premises for such purposes." The petitioners do not dispute that the Fusters' babysitting service constituted a business pursuit within the meaning of the policy exclusion. However, they argue that the activity of molesting children should be considered "non-business" for the purposes of the "non-business activity" exception to the business pursuits exclusion. The petitioners cite several opinions from other jurisdictions to support this view. See Jackson v. Lajaunie, 270 So.2d 859 (La.1972); Morrill v. Gallagher, 370 Mich. 578, 122 N.W.2d 687 (1963); Farmers Ins. Exch. v. Sipple, 255 N.W.2d 373 (Minn.1977); Milwaukee Mut. Ins. Co. v. City of Minneapolis, 307 Minn. 301, 239 N.W.2d 472 (1976). These cases state that the nature of the particular act involved and its relationship to the business controls whether the non-business activity exception applies. See Frazier, The "Business Pursuits" Exclusion in Personal Liability Insurance Policies: What the Courts Have Done With It, 1970 Ins.L.J. 519, 534.
We believe, as did the trial court, that babysitting in general, rather than the specific act of molesting children was the activity the Fusters were engaged in when the children were injured. Landis, 516 So.2d at 307 (Jorgenson, J., specially concurring). The crux of the lawsuit against the Fusters is their negligent care or supervision of the children. The activity referred to is not the molestation of the children; it is the failure to properly supervise the children. Therefore, the non-business activity exception does not apply, and the business pursuits exclusion in the homeowners policy precludes coverage.
Turning to the intentional acts exclusion, we find that no coverage could exist under this clause. The petitioners argue that the exclusion does not apply, as a...
To continue reading
Request your trial
-
Worcester Ins. Co. v. Fells Acres Day School, Inc.
...(Ct.App.1989); CNA Ins. Co. v. McGinnis, supra; Allstate Ins. Co. v. Troelstrup, 789 P.2d 415 (Colo.1990) (en banc); Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla.1989); Roe v. State Farm Fire & Casualty Co., supra; Altena v. United Fire & Casualty Co., 422 N.W.2d 485 (Iowa 1988) (sexual......
-
J. C. Penney Casualty Ins. Co. v. M. K.
...court that allows coverage for child molestation. (Allstate Ins. Co. v. Troelstrup (Colo.1990) 789 P.2d 415, 419; Landis v. Allstate Ins. Co. (Fla.1989) 546 So.2d 1051, 1053.) The out-of-state authority was extensively reviewed recently in Fire Ins. Exchange v. Abbott, supra, 204 Cal.App.3d......
-
State Farm Fire & Cas. Co. v. Reed
...361 So.2d at 1033; Farmers' Ins. Co. of Arizona v. Wiechnick, 166 Ariz. 266, 801 P.2d 501, 504 (Ct.App.1990); Landis v. Allstate Ins. Co., 546 So.2d 1051, 1053 (Fla.1989); Moncivais v. Farm Bureau Mut. Ins. Co., 430 N.W.2d 438, 442; McCloskey, 559 A.2d at 390; Maryland Casualty Co. v. Hayes......
-
MFRS. AND MERCHANTS MUT. INS. v. Harvey
...1992 WL 52206 (Del.Super.1992). Florida: McCullough v. Central Florida YMCA, 523 So.2d 1208 (Fla.App. 5 Dist.1988); Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla.1989). Georgia: Roe v. State Farm Fire & Cas. Co., 259 Ga. 42, 376 S.E.2d 876 (1989); Allstate Ins. Co. v. Jarvis, 195 Ga.App.......
-
Appellate standards of review.
...novo standard has been applied, for example, to the review of rulings on motions for summary judgment, see Landis v. All State Ins. Co., 546 So. 2d 1051 (Fla. 1989); Florida Power Corp. v. Silver Lakes Homeowner's Ass' n, 727 So. 2d 1149 (Fla. 5th DCA 1999); motions for directed verdict, se......
-
The intentional acts exclusion.
...confusion regarding this issue was principally the result of the Florida Supreme Court's decision in Landis v. Allstate Insurance Co., 546 So. 2d 1051 (Fla. 1989). In Landis, the court held that intent to harm would be inferred as a matter of law from the act of child sexual abuse.(9) The L......
-
Sexual Molestation Claims: Liability and Coverage Issues
...penetration and oral copulation of a five year old would be appropriate and a covered event. z In Landis v. Allstate Ins. Co. , 546 So. 2d 1051 (Fla. 1989), the Florida Supreme Court held that the intentional acts exclusion precluded coverage under a homeowner’s policy for child molestation......
-
Appellate standards of review.
...See Fox v. Professional Wrecker Operators of Florida, Inc., 801 So. 2d 175 (Fla. 5th D.C.A. 2001). (5) See Landis v. Allstate Ins. Co., 546 So. 2d 1051 (Fla. 1989); Ritz v. Florida Patient's Compensation Fund, 436 So. 2d 987 (Fla. 5th D.C.A. 1983); D.R. v. State, 734 So. 2d 455 (Fla. 1st D.......