Musselwhite v. Fla. Farm Gen. Ins. Co.
| Citation | 273 So.3d 251 |
| Decision Date | 28 May 2019 |
| Docket Number | No. 1D18-780,1D18-780 |
| Parties | Larry MUSSELWHITE, Appellant, v. FLORIDA FARM GENERAL INSURANCE COMPANY and Florida Farm Bureau Casualty Insurance Company, Joseph Hart, an individual, JODH3, Inc., d/b/a Bell Feed & Farm, Well & Pump, Appellees. |
| Court | Court of Appeal of Florida (US) |
Daniel M. Bachi of Sellars, Marion & Bachi, P.A., West Palm Beach, for Appellant.
Hinda Klein of Conroy Simberg, Hollywood, for Appellees Florida Farm General Insurance Company and Florida Farm Bureau Casualty Insurance Company.
In this appeal from a final summary judgment in an action for declaratory relief, Appellant asserts that the trial court erred in concluding that two insurance policies did not provide coverage for personal injuries that Appellant sustained while drilling a water well for a residential customer of the insureds. In doing so, Appellant claims that (1) the declaration page's reference to the fictitious name of the insureds' feed store business did not limit coverage because a fictitious name is not a legal and insurable entity separate and apart from the named insured; and (2) the well drilling activity arose out of operations necessary or incidental to business conducted on the feed store premises. Finding both claims to be without merit, we affirm.
Appellant filed a negligence action against JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump and its principal, Joseph Hart, for injuries he sustained after he had been hired to assist in a water well drilling project in Trenton, Florida. Subsequently, Appellees, Florida Farm General Insurance Company and Florida Farm Bureau Casualty Insurance Company, filed a complaint for declaratory relief seeking a determination that they had no duty under two commercial general liability policies to defend or indemnify JODH3 and Hart as to Appellant's claims against them.
The subject policies were first issued on August 19, 2011, and renewed annually without any changes. The declarations page to the first policy identified "JODH3, Inc. d/b/a Bell Feed & Farm" as the named insured and described the business as a "feed store." The declarations page of the second policy identified Joseph Hart and his wife as named insureds and also described the business as a "feed store." Both polices contained a specific endorsement limiting coverage to " ‘bodily injury,’ ‘property damage,’ ‘personal injury,’ ‘advertising injury’ and medical expenses arising out of ... [t]he ownership, maintenance or use of the premises shown in the Schedule and operations necessary or incidental to those premises[.]" The schedule described the premises as follows:
1159 S PARIS ST BELL, FL 32619-2396FEED/GRAIN/HAY DEALERNON-COMBUSTIBLE
The second policy was issued because Hart and his wife owned the business premises—which they leased to JODH3—and might be subject to personal liability for claims arising out of their ownership of the premises.
During the 2014-2015 policy period, Hart began a new business that offered well drilling services under the fictitious name "JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump." Most of the well drilling—65 to 75 percent—was for residential customers. Hart continued to maintain the fictitious name "JODH3, Inc. d/b/a Bell Feed & Farm" for his feed store business. While both businesses were owned by JODH3, each business had separate banks accounts, email addresses, business cards, invoices, and phone numbers.
In 2015, Hart contacted his insurance agent, Ben Colson, to inquire about obtaining insurance for his new well drilling business, JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump. On May 26, 2015, Colson contacted an underwriter for Appellees and requested a quote for liability insurance covering the well drilling business. That same day, the underwriter informed Colson that Appellees did not insure well drilling operations. Colson then told Hart that he could not obtain the requested coverage from Appellees. On July 20, 2015, Colson obtained a quote for well drilling liability coverage from Atlantic Casualty Insurance Company with an effective date of June 22, 2015. When Colson communicated the quote to Hart, Hart responded that he did not have the cash on hand to pay the premium and chose not to obtain coverage at that time.
On January 28, 2016, Appellant was hired as an independent contractor by JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump and sustained injuries while drilling a well on a residential customer's property. The next day, Hart contacted Colson to obtain the liability policy that Colson previously quoted for his well drilling business. On February 2, 2016, Colson received an updated quote from Atlantic Casualty Insurance Company. Hart applied for the insurance in the name of "Bell Feed & Farm, Well & Pump" and obtained liability coverage for the well drilling business on June 3, 2016.
Appellant filed a motion for summary judgment in Appellees' declaratory judgment action. Specifically, he argued that since a fictitious name was not a viable legal entity separate from its principal, JODH3 should be insured under the "Bell Feed & Farm" policy for any type of business it operated because there was no express exclusion for well drilling in the policy. He also argued that the well drilling activity was incidental or related to the operation of the feed store.
Appellees filed a cross-motion for summary judgment on the grounds that the policies did not insure the well drilling business and Appellant's claims were entirely unrelated to the insured business premises, which had been described as a feed store. Specifically, Appellees asserted that while both the feed store and the well drilling operation were owned by the same legal entity, JODH3, the only insured business was the feed store as evidenced by the specification of the named insured as "JODH3, Inc. d/b/a Bell Feed & Farm" and Hart's application describing the business as a feed store with no mention of well drilling. Appellees also claimed that they never knowingly undertook the risk of insuring a well drilling business because they did not write coverage insuring that type of risk. Finally, they argued that it was undisputed that the well drilling operations were neither necessary nor incidental to the feed store premises.
After holding a hearing, the trial court denied Appellant's motion for summary judgment, granted Appellees' motion for summary judgment, and entered final judgment for Appellees. In doing so, the court concluded that the insurance policies did not provide coverage for claims arising out of the insureds' drilling operations, but only covered claims arising out of their business premises, which was described by the declaration's page as a "feed store." The court further found that well drilling operations were neither necessary nor incidental to the feed store business or its premises. This appeal followed.
The interpretation of an insurance contract is a question of law subject to de novo review. Gov't Emps. Ins. Co. v. Macedo , 228 So.3d 1111, 1113 (Fla. 2017) ; Lee v. Montgomery , 624 So.2d 850, 851 (Fla. 1st DCA 1993). Where the language in an insurance contract is unambiguous, a court must interpret the contract in accordance with its plain meaning. Allstate Ins. Co. v. Orthopedic Specialists , 212 So.3d 973, 975-76 (Fla. 2017). "Policy language is considered to be ambiguous ... if the language ‘is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.’ " Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 785 (Fla. 2004) (quoting Swire Pac. Holdings, Inc. v. Zurich Ins. Co. , 845 So.2d 161, 165 (Fla. 2003) ). "[A]mbiguous insurance policy exclusions are construed against the drafter and in favor of the insured." Auto–Owners Ins. Co. v. Anderson , 756 So.2d 29, 34 (Fla. 2000). "To find in favor of the insured on this basis, however, the policy must actually be ambiguous." Penzer v. Transp. Ins. Co. , 29 So.3d 1000, 1005 (Fla. 2010) (emphasis omitted). "The ambiguity must be genuine, and the lack of a definition for an operative term ‘does not, by itself, create an ambiguity.’ " Macedo , 228 So.3d at 1113 (quoting Botee v. S. Fid. Ins. Co. , 162 So.3d 183, 186 (Fla. 5th DCA 2015) ). " ‘When a term in an insurance policy is undefined, it should be given its plain and ordinary meaning, and courts may look to legal and non-legal dictionary definitions to determine such a meaning.’ " Id.
In this case, Appellant claims that the trial court erred in entering summary judgment for Appellees upon concluding that the insurance policies they issued to the insureds—JODH3 and Hart—did not provide coverage for the personal injuries Appellant suffered while drilling a water well for a residential customer of the insureds. First, he argues that since a fictitious name is not a viable legal entity separate from its principal, JODH3 should be insured under the "Bell Feed & Farm" policy for any type of business it operated because there is no express exclusion for well drilling in the policy. It is undisputed that the declarations page to the policy in question identified "JODH3, Inc. d/b/a Bell Feed & Farm" as the named insured and described the business as a "feed store." It is also undisputed that JODH3's well drilling business ("JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump") was not in existence when this policy was initially issued. Based on the above, the trial court concluded that under the plain language of the policy, JODH3 was insured under the policy only for the operation of its feed store business under the fictitious name "Bell Feed & Farm."
A number of courts in other jurisdictions have held that when a liability policy identifies a named insured as doing business under a fictitious name, coverage is limited only to business done under the fictitious name and does not extend to any other business operated by the insured. See Lincoln Gen. Ins. Co. v. Pacheco , No. EP-1 1-CV-482-DB, 2012 WL 12539325,...
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