VOLKER STEVIN CONST., INC. v. Seaboard Sur. Co.
| Decision Date | 30 November 1987 |
| Docket Number | No. 86-2641-CIV.,86-2641-CIV. |
| Citation | 673 F. Supp. 1563 |
| Parties | VOLKER STEVIN CONSTRUCTION, INC., Plaintiff, v. SEABOARD SURETY COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Dennis M. Campbell, Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, Fla., for plaintiff.
Robert D. McIntosh, Ft. Lauderdale, Fla., for defendant.
AMENDED ORDER OF FINAL SUMMARY JUDGMENT
"Even as a rose is a rose is a rose, so a truck has been held a truck though the damage was caused by its use in conjunction with a power winch."1
This case requires the interpretation of an insurance contract, created by the parties to provide coverage of Plaintiff Volker Stevin Construction, Inc.'s ("Volker Stevin") construction equipment. The policy provides coverage by Seaboard Surety Company ("Seaboard") for certain scheduled construction equipment, as well as other leased or newly acquired equipment. On July 21, 1986, Volker Stevin leased from Hertz Rental Equipment Corp. a 1986 Ford F-700 Bucket Truck (the "bucket truck"). Two days later it was damaged while on a public highway enroute to obtain gasoline for the compressor that was mounted on it. The repair costs were $39,638.72. The question before the Court is whether these costs are covered by the insurance contract. Volker Stevin has moved for summary judgment. Seaboard has cross-moved for summary judgment. We hold that summary judgment in favor of Volker Stevin is appropriate.
The insurance policy at issue is an "all risks" policy; that is, the "agreement protects against ALL RISKS of direct physical loss or damage to contractor's equipment you Plaintiff own or have in your Plaintiff's care that has been leased or rented from others." However, the policy specifically excludes from coverage "automobiles or similar vehicles." The nature and extent of this exclusion clause forms the basis of this action. Plaintiff claims that the bucket truck is not similar to an automobile, while Defendant, relying specifically on the use of the truck when it was damaged, claims that it is similar to an automobile.
Plaintiff's argument is threefold. First it maintains that since the Defendant accepted premiums for the coverage of similar scheduled equipment, it is estopped from claiming that the bucket truck is excluded from coverage. Second, the Plaintiff contends that other courts that have considered this issue have found that these trucks are not automobiles or similar to automobiles. Finally, Plaintiff contends that the ambiguous language embodied in this policy must be construed against the insurer. On the other hand, Defendant relies on the contention that the damaged equipment because of its use is, as a matter of law, similar to an automobile.
"It is well settled that the construction of an insurance policy is a question of law for the court." Jones v. Utica Mutual Insurance Co., 463 So.2d 1153, 1157 (Fla.1985) (citation omitted). Further, "it is within the province of the trial judge—not the jury—to resolve ... ambiguities as a matter of law." Ellenwood v. Southern United Life Insurance Co., 373 So.2d 392, 394 (Fla. 1st DCA 1979) (citations omitted). "A contract is ambiguous when its language is reasonably susceptible to more than one interpretation, or is subject to conflicting inferences." Specialty Restaurants Corp. v. City of Miami, 501 So.2d 101, 103 (Fla. 3rd DCA 1987) (citations omitted). In this contract, the critical language is contained in the exclusion clause. The insurance policy does not apply to automobiles or similar vehicles. An automobile is, obviously, a combination of a variety of qualities. Whether something is similar to an automobile can be subject to different interpretations depending on the context of the examination. Accordingly, the term "automobiles or similar vehicles" is susceptible to more than one interpretation.
In construing the meaning of an ambiguous term, we must look to the terms and conditions of the entire contract, and not simply the isolated sentence in question. Ellenwood, 373 So.2d at 395. Sometimes, other provisions within the contract can shed light on the intent of the parties regarding the coverage that the policy provides, and in particular what type of vehicles are insured. There is no doubt that the policy covered "direct physical loss or damage to the contractor's equipment." The policy specifically referred to certain pieces of equipment that were scheduled in the insurance contract itself. Among the approximately 50 items of scheduled equipment are two Ford F-800 Trucks with Crane ("crane truck"). The affidavit of Eddy Weldink, controller of Volker Stevin, identifies the crane trucks as "similar to the bucket trucks." A picture of the crane truck Affidavit of Eddy Weldink, Exhibit D does, in our view, indicate a striking similarity to the bucket truck Id., Exhibit E. Defendant offers no evidence that these two vehicles are not similar, other than to note that the bucket truck was being used differently at the time the damage occurred. Seaboard's Memorandum of Law in Opposition to Volker Stevin's Motion for Summary Judgment and Seaboard's Cross-Motion for Summary Judgment at 8.
In considering a motion for summary judgment "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Therefore, we do not conclude that the bucket truck is in fact similar to the crane truck. We merely note in passing that any similarity between the two vehicles is instructive in construing the intent of the parties regarding the insurance coverage.
Plaintiff contends that the coverage of the crane truck estops the Defendant from asserting that the bucket truck is excluded from coverage.
The traditional elements for an estoppel claim, which are designed to balance the equities of a case, are (1) a promise or misrepresentation of fact, (2) reasonable reliance on the misrepresentation or promise, and (3) the reasonableness of such reliance.
Organized Fishermen of Florida v. Hodel, 775 F.2d 1544, 1549 (11th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 2890, 90 L.Ed.2d 978 (1986). While there exists an inference that Plaintiff's conduct in renting and using the bucket truck was based, in part, on the Defendant's "promise" to insure a similar vehicle, we are unprepared to find that the reliance, if any, was reasonable. The doctrine of estoppel "is applied with great caution and if the conduct is ambiguous ... there is no estoppel." Capital Bank v. Schuler, 421 So.2d 633, 638 (Fla. 3rd DCA 1982) (citations omitted). The fact that the crane truck is insured under this policy is not, by itself, determinative of the underlying issue in this matter.
However, it is clear by now that the interpretation of the ambiguous exclusion clause "must be construed against the party who drew the contract or chose the language used." Ellenwood, 373 So.2d at 395. The Eleventh Circuit has recently noted that "all exclusions will be `strictly construed against the insurer and in favor of coverage.'" Quesada v. Director, Federal Emergency Management Agency, 753 F.2d 1011, 1013 & n. 4 (11th Cir.1985) (quoting Smith v. Horace Mann Insurance Co., 713 F.2d 674, 676 (11th Cir.1983)). See also, DaCosta v. General Guaranty Insurance Co. of Florida, 226 So.2d 104, 105 (Fla.1969). The essence of the ambiguity, here, is whether the bucket truck exists within the universe of vehicles that are similar to an automobile. Applying this rule of construction we conclude that it does not.
We recognize that a definition of the contract term "automobiles or similar vehicles," can be derived from any number of sources outside of the contract. Defendant suggests that 7A Appleman, Insurance Law and Practice, § 4500.03 at 200-01 (Berdal ed. 1979) is instructive. Even this discussion underscores the difficult distinction between the terms "automobile" and "equipment." There; "automobile is defined as `a land motor vehicle, trailer or semitrailer designed for travel on public roads (including any machinery or apparatus attached thereto) but does not include mobile `equipment.'" Moreover, after stating this general premise, the treatise examines how courts have defined various types of vehicles based on contract provisions, not a fixed standard.
The Defendant cites a number of cases which purportedly illustrate that the subject bucket truck can be categorized as a vehicle similar to an automobile because of its inherent qualities. Pacific Employers Insurance Co. v. American Mutual Liability Insurance Co., 65 Cal.2d 318, 54 Cal.Rptr. 385, 419 P.2d 641 (1966) (); McConville, Inc. v. Merchants Mutual Insurance Co., 47 Misc.2d 279, 262 N.Y.S.2d 521 (1965) (); Nelson v. Ohio Casualty Insurance Co., 29 Wisc.2d 315, 139 N.W.2d 33 (1966) . These cases serve only to demonstrate that a variety of vehicles can be classified as an automobile depending on the specific contract provisions.
Defendant further suggests that because the accident occurred on a public road, while the vehicle was on an "errand" indicates that it is similar to an automobile. See, e.g., Citizens Casualty Co. of New York v. L.C. Jones Trucking Co., 238 F.2d 369 (10th Cir.1956) (), cert. denied, 352 U.S. 1003, 77 S.Ct. 563, 1 L.Ed.2d 548 (1957); Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance...
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