Martinez v. Citizens Property Ins. Corp.
| Decision Date | 16 April 2008 |
| Docket Number | No. 3D07-88.,3D07-88. |
| Citation | 982 So.2d 57 |
| Parties | Jose MARTINEZ, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. |
| Court | Florida District Court of Appeals |
Before GERSTEN, C.J., and SHEPHERD and CORTIÑAS, JJ.
Appellant, Jose Martinez (the "Insured"), seeks review of an order granting summary judgment in favor of Citizens Property Insurance Corporation (the "Insurance Carrier"). We review this matter de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000).
The Insurance Carrier issued a homeowner's insurance policy (the "Policy") to the Insured containing an exclusion which provided, in pertinent part:
Coverage L — Personal Liability and Coverage M-Medical Payments to Others do not apply to "bodily injury" or "property damage:"
. . . .
e. arising out of:
(1) the ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an "insured;"
When the injury that forms the basis of the underlying lawsuit occurred, Sergio Avila ("Avila") was renting a home (the "Property"), which was owned by the Insured. At some point during the tenancy, and while physically on the Property, Avila undertook preparations to change the oil in the Insured's automobile. Avila drove the automobile onto ramps on the Property's driveway and subsequently positioned himself underneath. Shortly after Avila was situated under the car, the concrete driveway suddenly collapsed, causing the vehicle to fall on him and resulting in injuries. Avila testified that, although he was under the automobile, he was merely "checking" it and had neither commenced the oil change nor touched the car. After the injury occurred, an action was brought by Avila against multiple defendants, including the Insured and the Insurance Carrier, alleging that personal injuries sustained on the Property were covered under the Policy. The Insurance Carrier subsequently filed the instant action for declaratory judgment seeking a determination that there was no coverage under the Policy. After discovery, the Insured and the Insurance Carrier each filed motions for summary judgment. The trial court ultimately granted the Insurance Carrier's motion for summary judgment on its declaratory action.
As part of its investigation of Avila's claim, the Insurance Carrier retained the services of Pepper Engineering Group (the "Engineer") to inspect the driveway and determine the cause of damage to the concrete patio slab. The inspection disclosed that a concrete slab failure occurred in the area where Avila and the automobile were situated. Although the applicable building code required a minimum four-inch thickness, the Engineer found that the concrete slab was approximately only two and one-eighth inches thick. The Engineer also determined that the slab lacked reinforcement, was missing wire mesh, and noted several old cracks across the patio slab with rounded and weathered edges containing paint.
The issue in this case is whether Avila's injuries can be classified as "arising out of . . . the ownership, maintenance, use, loading or unloading of motor vehicles." The Florida Supreme Court has reviewed exclusionary provisions containing the phrase "arising out of" and has "concluded that [the phrase] requires only `some level of causation greater than coincidence.'" Garcia v. Fed. Ins. Co., 969 So.2d 288, 293 (Fla.2007) (quoting Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 533 (Fla.2005)). Accordingly Ohio Cas. Ins. Co. v. Cont'l Cas. Co., 279 F.Supp.2d. 1281, 1284 (S.D.Fla.2003) (citing Nat'l Indem. Co. v. Corbo, 248 So.2d 238, 240 (Fla. 3d DCA 1971)).
In this case, the Engineer, which was retained by the Insurance Carrier, determined that that the crack in the concrete slab resulting in the accident was caused by the car wheel load. However, the record is clear that the Engineer further concluded that the crack would not have occurred if the slab had been properly constructed in accordance with the Florida Building Code. The broadest reading of the phrase "arising out of . . . the ownership, maintenance, use, loading or unloading of motor vehicles," does not encompass the factual scenario in this case. It is difficult to imagine a situation where a driveway incapable of supporting the weight of an automobile could be considered anything other than one that was defective or improperly constructed. Based upon the facts of this case, it appears that it was pure chance that the object upon the driveway at the time of its collapse happened to be a car. As such, the automobile became a mere instrumentality of the injuries to Avila, devoid of any causal connection to Avila's injuries. See Almayor v. State Farm Fire & Cas. Co., 613 So.2d 526, 527 (Fla. 3d DCA 1993).
In Almayor, we found that this type of policy exclusion did not preclude coverage despite the fact that the injuries occurred while a vehicle was being repaired. Almayor had, at the request of an insured, traveled to her home in order to "check out" and possibly repair her vehicle. While he was working on the car, Almayor siphoned gas out of the car and placed it in a bucket next to the side of the house. One of the residents, also an insured, then exited the house with a lit cigarette in hand, which ignited the gasoline fumes and caused an explosion, which seriously injured Almayor. This court reversed a judgment in favor of the insurer Id. at 527.
This case, like Almayor, is distinguishable from cases where there exists a causal connection between the excluded act, such as automobile maintenance, and the injury. See Volkswagen Ins. Co. v. Nguyen, 405 So.2d 190 (Fla. 3d DCA 1981), receded from on other grounds, Dung Ba Nguyen v. Holyoke Mut. Ins. Co., 436 So.2d 931 (Fla. 3d DCA 1983). For example, in Nguyen, we considered a situation where the injured party was burned on the insured premises while trying to start a truck engine by pouring gasoline in the carburetor. In that context, we held that "[t]he attempt to start the truck by pouring gas into the carburetor, which resulted in the ignition of the gas, involved the `maintenance' of the vehicle within the terms of this exclusion." Id. at 195. Nguyen, unlike this case and Almayor, involved a clear causal connection between the injuries and the ignition of the gasoline while attempting to maintain a vehicle. Id. at 196. With all due respect to my dissenting colleague, there is no parallel between the facts in Nguyen and our case, much less a strikingly similar one.
Contrary to the dissent's suggestion, we are not at all concerned about the fairness of relieving any insurer of responsibility. Nor are we, as also suggested by the dissent, seeking to create coverage where none exists. Instead, our task is to interpret the parameters of coverage under the facts of this particular case. If there exists a causal connection between the excluded act and the injury, there is no coverage; conversely, if there is no causal connection between the excluded act and the injury, the exclusion may not be applied to preclude coverage.
After a thorough review of the record, we hold that there is no causal connection between the use or maintenance of an automobile and Avila's injuries. Avila's injuries occurred because the driveway did not function as it was supposed to, that is, to hold the weight of a common car. The insurance company's own expert report makes clear that the crack in the concrete slab would not have occurred if the slab had been properly constructed in accordance with the applicable building code. As such, the car was merely the instrumentality of the injuries and the maintenance of the car was entirely coincidental. The required "level of causation greater than coincidence" is simply not present. See Garcia, 969 So.2d at 293.
Based upon the foregoing, we find that the trial court erred in granting summary judgment in favor of the Insurance Carrier and, therefore, we reverse. Having determined that this particular exclusion from coverage is not applicable in the present case, the Insurance Carrier is, nevertheless free to assert any other coverage defenses it may have available.
Reversed and remanded.
This case is truly one of the "chicken and the egg." If the driveway had not been defectively designed or installed, the accident likely would not have happened. If the car under which Sergio Avila had the misfortune to be lying had not been ramped up over a defective spot, the accident would not have happened. Fortunately, we have the common law of contracts to tell us whether Citizens is required to indemnify the almost certainly responsible homeowner, Jose Martinez, for Mr. Avila's injuries. The simple and longstanding answer is, "no."
The relevant insuring clause of the contract is the following:
COVERAGE L — PERSONAL LIABILITY
If a claim is made or a suit is brought against an "insured" for damages because of "bodily injury" or "property damage" caused by an "occurrence" to which this coverage...
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