N.H. Indem. Co. v. Scott

Decision Date13 December 2012
Docket NumberCase No. 8:11–cv–943–T–23MAP.
Citation910 F.Supp.2d 1341
PartiesNEW HAMPSHIRE INDEMNITY COMPANY, Plaintiff, v. David D. SCOTT, Daniel C. Scott, and Richard Oulette, as guardian of Sarah Hester Edwards, Defendants.
CourtU.S. District Court — Middle District of Florida

OPINION TEXT STARTS HERE

Josh Levy, Karl E. Sturge, Rosemary B. Wilder, Marlow, Connell, Abrams, Adler, Newman & Lewis, Coral Gables, FL, for Plaintiff.

Dale M. Swope, Angela E. Rodante, Shea T. Moxon, Stephanie Miles, Swope Rodante, PA, Tampa, FL, Gene Odom, Maryann R. Masella, Martinez Odom Law Group, Brandon, FL, for Defendants.

ORDER

STEVEN D. MERRYDAY, District Judge.

David Scott (Scott) financed his two-hundred-dollar-per-day drug habit by larceny, including by robbery. On October 22, 2005, Mrs. Sarah Edwards, while on a routine shopping trip, walked alone across a grocery store parking lot toward her car and with her purse casually strapped around her shoulder. After watching from nearby, Scott drove his father's 2002, two-ton, GMC Sierra 1500 pick-up truck toward Sarah, slowed as he pulled the truck next to her, reached through the truck's window, grabbed Sarah's purse securely, and forcefully pulled the purse, which clung to Sarah's shoulder. Beginning his getaway, Scott accelerated the truck. Still clinging to the purse, Sarah was forced by Scott's continued pulling to slam into truck and onto the pavement. Scott's opportunistic and forceful attack traumatically and permanently injured Sarah's brain. Sarah survives in a severely impaired, semi-vegetative state.

Scott's insurer sues Sarah's guardian and Scott, seeks a judgment declaring the absence of a duty to defend or indemnify, and moves (Doc. 36) for summary judgment. Sarah's guardian submits a response (Doc. 47), which Scott joins (Doc. 50). Sarah's guardian moves (Doc. 37) for summary judgment; Scott moves (Doc. 44) for summary judgment. The insurer responds (Docs. 48 & 49).

BACKGROUND

A New Hampshire Indemnity Company (NHIC) automobile insurance policy owned by Scott's father, Daniel Scott, insures the pick-up truck and lists Scott as an insured driver. In pertinent part, the policy states:

INSURING AGREEMENT

A. We will pay damages for “bodily injury” or “property damage” for which any “insured” becomes legally responsible because of an auto accident.

...

EXCLUSIONS

A. We do not provide Liability Coverage for any “insured”:

1. Who intentionally causes “bodily injury” or “property damage”.

(Doc. 1 at 15) The policy includes no explicit definition of “auto accident.”

On November 10, 2005, Scott pleaded guilty both to robbery in violation of Sections 812.13(1) and 812.13(2)(c), Florida Statutes, and to felony battery in violation of Section 784.041, Florida Statutes. In September, 2008, Sarah's guardian sued the owner of the shopping center for failure to provide adequate security. In a prison interview, conducted by the guardian's counsel on September 18, 2009, Scott denied the intent to harm Sarah and stated that he wanted only to steal money to buy drugs. Six days later and under oath, Scott repeated the denial to counsel for the shopping center's owner. 1 Sarah settled with the owner of the shopping center.

On October 2, 2009, nearly four years after the robbery, Scott's mother reported the robbery to NHIC and advised that the guardian's counsel had contacted Scott in prison. On October 7, 2009, NHIC sent Scott's father a “reservation-of-rights letter” under Section 627.426, Florida Statutes. In pertinent part, the letter states that “the loss was not reported in a timely manner,” that “the investigation of this loss is being handled under a full Reservation of Rights by [NHIC],” and that NHIC reserves “all its rights and defenses under the said policy of insurance as fully and completely as if [NHIC] had refused to take any steps whatsoever in the investigation as set out above.” (Doc. 1 at 47). A week later, on October 16, 2009, Sarah's guardian sued Scott and his father for negligence and negligent entrustment. Oulette v. Scott, No. 09–CA–26329 (Fla. 13th Cir.Ct.) (the “underlying action”). NHIC defended Scott and his father under the reservation of rights.

On November 17, 2010, NHIC sent another “reservation-of-rights letter.” (Doc. 37–14) The letter continues the “full Reservation of Rights,” and asserts that the policy's intentional injury provision also excludes coverage. Because the November 17 letter “mistakenly quoted” the policy, NHIC sent an amended “reservation-of-rights letter” on March 7, 2011. (Doc. 1 at 51) None of the three letters expressly reserves the right to seek from Scott reimbursement of his defense costs. On April 27, 2011, NHIC settled Scott's father's liability for $10,000—the policy limit. On April 29, 2011, the Friday before the week of the Oulette v. Scott trial, NHIC brought this action for a judgment declaring the absence of a duty to defend or indemnify Scott and Scott's father. On May 10, 2011, the Oulette v. Scott jury (1) returned a verdict for more than $73 million in compensatory damages and (2) answered “Yes” to whether “the negligence of David Scott cause[d] Sarah Edwards to suffer a permanent injury within a reasonable degree of medical probability [.] (Doc. 37–19) Judgment was entered against Scott for $69,512,505.90.

DISCUSSION

Scott admits the intent to rob Sarah Edwards but denies the “specific intent” to cause bodily harm. Scott argues that this claimed absence of specific intent to injure compels a finding of coverage. The dispositive issue is whether NHIC's policy, which covers “an auto accident” but excludes coverage for “any insured who intentionally causes bodily injury,” requires NHIC to indemnify Scott for damages arising from his forceful and felonious infliction of permanent brain damage on Sarah Edwards.2 Precedent, plain language, public policy, and prudence compel a negative answer.

Governed by the objective intent of the parties, [t]he interpretation of an insurance contract is a question of law.” Kattoum v. N.H. Indem., 968 So.2d 602, 604 (Fla. 2d DCA 2007); see also Stuyvesant Ins. v. Butler, 314 So.2d 567, 570 (Fla.1975); Rigel v. Nat'l Cas., 76 So.2d 285, 286 (Fla.1954). Thus, [i]f the language used in an insurance policy is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning of the language used so as to give effect to the policy as it was written.” Travelers Indem. v. PCR, Inc., 889 So.2d 779, 785 (Fla.2004) (citing Swire Pac. Holdings v. Zurich Ins., 845 So.2d 161, 165 (Fla.2003)). Ambiguity arises only if “the language ‘is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.’ PCR, 889 So.2d at 785 (quoting Swire, 845 So.2d at 165). Ambiguity favors the insured and commends a reasonable interpretation providing coverage. PCR, 889 So.2d at 785. However, absent ambiguity, plain meaning prevails. Liebel v. Nationwide Ins. Co. of Fla., 22 So.3d 111 (Fla. 4th DCA 2009), rev. dismissed,32 So.3d 622 (Fla.2010); Auto Owners Ins. v. Above All Roofing, 924 So.2d 842 (Fla. 2d DCA 2006). A coverage clause and an exclusionary clause are construed together, State Farm Fire & Cas. v. CTC Development, 720 So.2d 1072, 1074–75 (Fla.1998), and an exclusionary clause creates no coverage. LaMarche v. Shelby Mut. Ins., 390 So.2d 325, 326 (Fla.1980).

The terms of an insurance policy should be taken and understood in their ordinary sense, and like other contracts, should receive a construction that is reasonable, practicable, sensible, and just, consistent with the intent of the parties, not a strained, forced or unrealistic interpretation. Insurance policies will not be construed to reach an absurd result.

30B Fla. Jur. 2d Insurance § 1589 (2012) (internal citations omitted).

Considerations of whether a liability policy excludes coverage for an assault and battery include:

(1) the terms of the contract; (2) the basic coverage requirements of an “accident” or “occurrence”; (3) any specific exclusions that arguably encompass assault; and (4) the public policy of the relevant jurisdiction. Generally liability insurance policies have been interpreted as not providing coverage for assaults committed by the insured based upon the public policy against indemnifying a person for their own wrongdoing. An assault is also commonly not covered under a policy of liability insurance when there is an intentional act exclusion which excludes coverage for injuries intentionally caused by the insured.

9 Couch on Insurance § 127:20 (3d ed. 2011). Applied to a drive-by robbery and a felony battery, the plain meaning of the unambiguous “auto accident” clause prevails. Black's Law Dictionary 15–16 (8th ed. 2004) defines “accident” as [a]n unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated” and “accidental” as [n]ot having occurred as a result of anyone's purposeful act; esp., resulting from an event that could not have been prevented by human skill or reasonable foresight.” Webster's New Third International Dictionary 11 (1981) defines (1) “accident” as “an event or condition occurring by chance or arising from unknown or remote causes”; “lack of intention or necessity: chance—often opposed to design”; “an unforeseen unplanned event or condition”; and “a ... sudden event or change occurring without intent or volition through carelessness, unawareness, ignorance, or a combination of causes and producing an unfortunate result” and (2) “accidental” as “happening or ensuing without design, intent, or obvious motivation or through inattention or carelessness.” The American Heritage Dictionary of the English Language 11 (3d ed. 1992) defines (1) “accident” as “an unexpected undesirable event”; “an unforseen incident”; “lack of intention” and (2) “accidental” as “occurring unexpectedly, unintentionally, or by chance.” Scott's predatory stalking and desperate...

To continue reading

Request your trial
2 cases
  • Gonzalez v. Liberty Mut. Fire Ins. Co.
    • United States
    • U.S. District Court — Middle District of Florida
    • 31 Octubre 2013
    ...So.3d 622 (Fla.2010); Auto Owners Ins. v. Above All Roofing, 924 So.2d 842 (Fla. 2d DCA 2006). New Hampshire Indem. Co. v. Scott, 910 F.Supp.2d 1341, 1344–45 (M.D.Fla.2012). No ambiguity appears in the phrase “structural damage to the building.” 4. The prepositional phrase “to the, ________......
  • Am. Econ. Ins. Co. v. Traylor/Wolfe Architects, Inc.
    • United States
    • U.S. District Court — Middle District of Florida
    • 6 Agosto 2014
    ...635 F.3d 1284, 1290 (11th Cir. 2011). "The interpretation of an insurance contract is a question of law." N.H. Indem. Co. v. Scott, 910 F. Supp. 2d 1341, 1344 (M.D. Fla. 2012) (quotations omitted). "Summary judgment is appropriate in declaratory judgment actions seeking a declaration of cov......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT