Tobin v. Michigan Mut. Ins. Co.
| Decision Date | 03 February 2005 |
| Docket Number | No. 03-12737.,No. 03-12739.,No. 03-12738.,03-12737.,03-12738.,03-12739. |
| Citation | 398 F.3d 1267 |
| Parties | Mark Andrew TOBIN, Plaintiff-Appellant, v. MICHIGAN MUTUAL INSURANCE CO., Defendant-Appellee. Craig Mackay, individually and as personal representative of Ana Gutierrez Mackay and Jonathan Patrick Mackay, Plaintiff-Appellant, v. Michigan Mutual Insurance Corporation, Defendant-Appellee. Helen J. Hunter, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Michigan Mutual Insurance Corporation, a Michigan Corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Christopher J. Lynch, Hunter, Williams & Lynch, P.A., Miami, FL, for Plaintiffs-Appellants.
Wendy F. Lumish, Carlton, Fields, Miami, FL, Stephen J. Harburg, O'Melveny & Myers, LLP, Washington, DC, for Defendants-Appellees.
Appeals from the United States District Court for the Southern District of Florida.
Before BARKETT, HULL and COX, Circuit Judges.
In this declaratory judgment action, plaintiffs Mark Andrew Tobin, Helen J. Hunter, and Craig Mackay (the "plaintiffs") leased vehicles from Ford Motor Company or a Ford subsidiary (collectively "Ford")1 and now seek to recover under an insurance policy that defendant Michigan Mutual Insurance Company ("Michigan Mutual") issued to Ford. Because Ford and Michigan Mutual, as the contracting parties, agreed that the policy was not intended to cover retail lessees of Ford, the district court reformed the policy between Ford and Michigan Mutual to exclude medical payment and uninsured motorist coverage to retail lessees, including the plaintiffs. After review of plaintiffs' appeal, we certify questions to the Florida Supreme Court.
This consolidated appeal arises out of three separate automobile accidents involving vehicles leased from Ford. Mark Tobin, while driving a vehicle that he leased from Ford, was injured in an accident with an uninsured driver. Helen Hunter was similarly injured in an accident with an uninsured driver while driving a vehicle that she had leased from Ford. Ana and Jonathan Mackay were killed in an accident with an uninsured driver while the Mackays were traveling in a vehicle leased from Ford.
The "Red Carpet" lease agreements Hunter and the Mackays entered into with Ford provide that "lessor is not providing vehicle insurance or liability insurance" and require that the lessee "must insure the vehicle during this lease." Similarly, the lease agreement for Tobin's vehicle states that "[t]he Lessee must insure the vehicle for the term of the lease."
Ford entered into a separate insurance agreement with Michigan Mutual (the "policy"), which contains three sections. The commercial general liability section provides coverage for Ford's premises and operations activities. The business auto section provides coverage for a group of vehicles used by Ford for business purposes. The personal auto section is designed to provide coverage to a group of vehicles assigned to Ford management personnel under the lease evaluation program. The lease agreement signed by the Ford personnel in the lease evaluation program, unlike the retail lease agreements signed by the plaintiffs here, specifically states that "the Company [Ford] provides insurance on the vehicle during the term of the lease." Ford employees who participate in the lease evaluation program also receive a certificate of no-fault insurance and an identification card that indicates their coverage under the Michigan Mutual policy.
This consolidated appeal involves only the personal auto section of the Michigan Mutual policy and specifically what is entitled the personal auto policy supplement ("auto supplement") to the policy. We outline the key provisions of the auto supplement. The first page of the auto supplement is a Declarations sheet that lists the "Named Insured." Specifically, Item 1 of the Declarations sheet lists the "Named Insured" as "Ford Motor Company, its U.S. subsidiaries, and any person to whom an automobile has been assigned, leased or loaned." (Emphasis added.)2
Item 2 on that same Declarations sheet describes the vehicles insured as follows: "Description of Auto ... See Endorsement ¶ FO RD 04." In turn, Endorsement ¶ FO RD 04 defines "Your Covered Auto" as vehicles with one of these three tag designations: "L — Leased Vehicles;E — Executive Vehicles; andS — Sales Vehicles." These three tag designations are used by Ford to specify vehicles assigned, leased, or loaned to Ford's employees and retirees for business or personal use. None of these tag designations is used for vehicles leased to retail customers, such as the plaintiff lessees.
Further, the auto supplement provides primary coverage to the insured for liability, for medical payments, and for uninsured motorist coverage. "Insured" in the medical payment section of the auto supplement is defined as:
1. You or any "family member:"
A. While "occupying" ... a motor vehicle ...
2. Any other person while "occupying" "your covered auto."
"Insured" in the uninsured motorist section of the auto supplement is defined similarly to the medical payment section as:
1. You or any "family member."
2. Any other person "occupying" "your covered auto."
In addition to primary coverage, the auto supplement contains the following language, providing "contingent loss and excess auto liability coverage" to the "Named Insured" and excluding such excess liability coverage "to lessees" as follows:
This policy, however, shall provide contingent loss and excess auto liability coverages for autos included in the following programs:
a. Red Carpet Lease ...
but only as respects the liability of the Named Insured. No coverage is provided to lessees, agents, or permissive users.3
Although reciting what we believe to be certain provisions at issue in this appeal, we point out that the Michigan Mutual policy, including the entire auto supplement, is in the record.4
Tobin, Hunter, and the personal representative of the Mackays' estate filed suits against Michigan Mutual seeking uninsured/underinsured motorist ("UM/UIM") coverage under the auto supplement to the Michigan Mutual policy issued to Ford.5 It is the plaintiffs' position that this auto supplement is broad enough to cover them as well, and in fact must cover them under Florida law.
In ruling on certain summary judgment motions, the district court concluded that Florida law governs the interpretation of the policy. The court further acknowledged that a Florida intermediate appellate decision in Perez v. Michigan Mutual Ins. Co., 723 So.2d 849 (Fla.Dist.Ct.App.1999), held that a retail lessee of Ford was covered by the same Michigan Mutual policy at issue here.
The Florida court in Perez emphasized that Item 1 of the auto supplement lists the "Named Insured" as "Ford Motor Company, its U.S. Subsidiaries and any person to whom an automobile has been assigned, leased or loaned." (Emphasis added.) From this language, the Perez court concluded that retail lessees were insureds and thus entitled to coverage as persons to whom the automobile was leased.6
The federal district court, however, disagreed with the Perez decision for several reasons. First, the district court noted that Item 2 (following Item 1 on the same Declarations sheet) entitled "description of auto," in effect limits the coverage to certain vehicles and expressly directs the reader to "See Endorsement Number FO RD 04." In turn, Endorsement Number FO RD 04 to the auto supplement defines "your covered auto" under that supplement as only autos with certain tag designations, as follows:
Any auto which has been designated with the following tag letters:
L - Leased Vehicles
E - Executive Vehicles
It is undisputed that these tag numbers (L, E, and S) are issued to Ford employees or retirees who lease vehicles and that none of plaintiffs' vehicles has these tag numbers because plaintiffs' vehicles are in the Red Carpet lease program, a retail lease program. Secondly, the district court noted that the contingent loss-excess liability provision specifically stated that no coverage is provided to lessees under the Red Carpet lease program, as follows:
This policy, however, shall provide contingent loss and excess auto liability coverages for autos included in the following programs:
a. Red Carpet Lease....
but only as respects the liability of the Named Insured.
No coverage is provided to lessees, agents, or permissive users.
Thirdly, the district court examined two unpublished state court decisions that concluded that Ford's retail lessees were not covered under this same Michigan Mutual policy. Negron v. Michigan Mut. Ins. Co., No. 3:00 CV 1004 (D.Conn. July 16, 2001); Massachusetts Bay Ins. Co. v. Amerisure Cos., No. 99-3361 (D.N.J. Dec. 12, 2000). The Negron court noted that, while "a superficial reading of only the Personal Auto Policy Supplement might include the [plaintiffs] in the category of named insured,... the endorsements and more specific language of the policy make it clear that the [plaintiffs] and their vehicle are not insured under the Michigan Mutual policy." Negron, at *12. The district court concluded that the Negron and Massachusetts Bay decisions read the policy as a whole and were far better reasoned than Perez.
Although disagreeing with Perez, the district court then acknowledged that "[a] federal court applying state law is bound to adhere to decisions of the state's intermediate appellate courts absent some persuasive indication that the state's highest court would decide the issue otherwise." In doing so, the district court relied on these decisions. See Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 775 (11th Cir.2000) (...
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