Westmoreland v. Lumbermens Mut. Cas. Co., 96-1821

• Court: Court of Appeal of Florida (US)
• Citation: 704 So.2d 176
• Docket Number: No. 96-1821,96-1821
• Parties: 23 Fla. L. Weekly D150 Lisa WESTMORELAND, as Personal Representative of the Estate of Rosemarie Deslauriers, deceased; Elizabeth Carrero and Laniel Carrero, individually and as Co-Personal Representatives of the Estates of Lenise Carrero, deceased, and Laniel Carrero, deceased, and as mother and father of Lenise and Laniel Carrero; and, Jean Deslauriers, individually, and as Personal Representative of the Estate of Fleurette Deslauriers, a/k/a Fleurette Lalonde, deceased, Appellants, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Appellee.
• Decision Date: 24 December 1997

Page 176

704 So.2d 176

23 Fla. L. Weekly D150

Lisa WESTMORELAND, as Personal Representative of the Estate of Rosemarie Deslauriers, deceased; Elizabeth Carrero and Laniel Carrero, individually and as Co-Personal Representatives of the Estates of Lenise Carrero, deceased, and Laniel Carrero, deceased, and as mother and father of Lenise and Laniel Carrero; and, Jean Deslauriers, individually, and as Personal Representative of the Estate of Fleurette Deslauriers, a/k/a Fleurette Lalonde, deceased, Appellants, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Appellee.

No. 96-1821.

District Court of Appeal of Florida,

Fourth District.

Dec. 24, 1997.

Dean A. Mitchell of the Law Office of Dean A. Mitchell, Miami, for appellant Lisa Westmoreland.

Darryn L. Silverstein of Silverstein, Silverstein & Silverstein, P.A., North Miami Beach, for appellants Carreros and Deslauriers.

Pamela R. Kittrell and Michael C. Mattson of Cooney, Mattson, Lance, Blackburn, Richards & O'Connor, P.A., Fort Lauderdale, for appellant American Standard, Inc.

Wayne T. Gill of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellee.

ON MOTIONS FOR REHEARING, CLARIFICATION AND CERTIFICATION

FARMER, Judge.

We substitute the following corrected opinion for the original and, as corrected, deny rehearing, clarification and certification.

The subject of this appeal is the obligation of a liability insurance carrier to defend its insured against a claim for damages. The trial judge found no duty to provide a defense against premises liability claims in a case involving several other covered claims. Because an exclusionary clause in the homeowner's insurance provision contains an undefined term and is ambiguous under the circumstances alleged in the complaint, we conclude that the premises liability claims were within the covenant to defend. Consequently the insurer has an obligation to defend the estate of the owner against these claims as well.

The facts may be succinctly stated. When the engine of an unoccupied motor vehicle was left running in a closed, unventilated garage, the air conditioning equipment--which was also located in the garage--dispersed carbon monoxide poison gasses throughout the house. All of the occupants, including the owner, died from the fumes. Several of the victims' estates sued the estate of the owner in wrongful death actions, alleging that the deaths were proximately caused by the failure of the owner to maintain the premises in a safe condition, and to warn of or correct any dangerous conditions as to which she reasonably had knowledge. In a separate count they alleged, alternatively, that the operation of the motor vehicle proximately caused the deaths.

The owner was insured by a liability insurance policy providing homeowner's coverage. After notification of the suits, the insurer brought a declaratory judgment action seeking an adjudication that, because there was no coverage under the homeowner's coverage for the premises liability claims, the insurer owed no duty to defend the owner's estate against these claims. The trial court concluded that the homeowner's insurance excluded claims for injuries arising out of the use of a motor vehicle and that the claimants' premises liability claims involved the use of a motor vehicle. Accordingly, the court found no duty to defend against the claims and granted summary judgment in favor of the insurer.

In the premises liability count of the complaints, the plaintiffs allege that the deaths were proximately caused because the owner:

"a. negligently and carelessly failed to maintain the garage door in the open position while the subject [motor vehicle]'s engine was operating in the garage at the subject premises; and/or "b. negligently and carelessly maintained the air conditioning equipment and/or system which was designed and manufactured in such a way as to be inadequate to reasonably safely perform the functions required of said air conditioning equipment and/or system in that the subject air conditioning equipment and/or system sucked in gasses including carbon monoxide poison from the garage and dispersed it throughout the living areas of the house; and/or

"c. negligently and carelessly failed to install and/or maintain carbon monoxide warning devices in the subject house; and/or

"d. negligently and carelessly failed to adequately ventilate the garage; and/or

"e. negligently and carelessly failed to warn of the dangerous condition and risk of operating the subject [motor vehicle] in the closed garage at the subject premises while the engine was left running; and/or

"f. negligently and carelessly failed to otherwise prevent carbon monoxide poison from entering the living areas of the house...."

Clearly these allegations state that the deaths were caused by an agency other than the use of a motor vehicle. At a minimum they allege that the listed instances of premises negligence intervened or concurred with a motor vehicle to cause the deaths.

The policy broadly provides homeowner's liability coverage in an insuring clause labeled "Coverage E--Personal Liability." It extends coverage to all claims brought against the insured "for damages because of 'bodily injury' ... caused by an 'occurrence'...." The term "occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results ... in bodily injury." An exclusion, however, in this section of the policy states as follows:

" Coverage E--Personal Liability ... do[es] not apply to 'bodily injury' ... arising out of 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'." [e.s.]

In finding no duty to defend the owner's estate against the premises liability claims, the trial judge apparently concluded that, because the poison gas was dispersed from a motor vehicle in the garage, the premises liability claims were not covered by the homeowner's policy and therefore the insurer had no duty to defend against the premises liability claims.

The logic of the trial judge begins with an implicit assumption that, because the fumes were emitted by the running engine of a motor vehicle, it was the use of the vehicle that caused the bodily injuries leading to death. If the homeowner's negligence with regard to the maintenance of the premises played any role in the deaths, he apparently reasoned, such negligence must necessarily be--at the most--a concurring cause. But, he concluded, this court has expressly rejected the concurring cause theory as regards this kind of exclusion in Dalrymple v. Ihnen Pool Service & Supply, Inc., 498 So.2d 646 (Fla. 4th DCA 1986). He also concluded that our later decision in Frontier Insurance Co. v. Pinecrest Preparatory School, Inc., 658 So.2d 601 (Fla. 4th DCA 1995), rev. den., 664 So.2d 248 (Fla.1995), does not recede from the holding in Dalrymple. Both cases, he said, stand for the proposition that the concurring cause doctrine may not be used to "avoid application of the automobile exclusion." Frontier, he said, "avoided application" of the motor vehicle exclusion because in that case it was ambiguous when applied. He went on to read our decision in Frontier to hold that there could be overlapping coverage between the homeowner's and automobile coverage, but only when the automobile exclusion in the homeowner's coverage is ambiguous. He implicitly found no ambiguity in the automobile exclusion, however, when applied to the claims in suit. In the end, the trial court determined:

"Since the [district] court has held the concurrent cause doctrine is inapplicable, the court further finds the underlying factual allegations in the complaints do not give rise to a duty to defend, regardless of whether any of the acts of alleged negligence having to do with maintenance of the home would apply coverage if the complaints deleted allegations of negligent maintenance and operation of the motor vehicle."

It is this decision that we review today.

We begin our own analysis from a different point. Insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties, and ambiguities are interpreted liberally in favor of the insured and strictly against the insurer who prepared the policy. Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So.2d 467 (Fla.1993). Florida law is equally well-settled that insuring or coverage clauses are construed in the broadest possible manner to effect the greatest extent of coverage. Hudson v. Prudential Prop. & Cas. Ins. Co., 450 So.2d 565, 568 (Fla. 2d DCA 1984) (insurance coverage must be construed broadly and its exclusions narrowly); Nat'l Merchandise Co. v. United Serv. Auto. Ass'n, 400 So.2d 526, 532 (Fla. 1st DCA 1981) (terms in policy relating to coverage must be construed liberally in favor of insured); Valdes v. Smalley, 303 So.2d 342, 344 (Fla. 3d DCA 1974) (clause extending insurance to insured must be construed liberally in favor of insured); see also Hartnett v. Southern Ins. Co., 181 So.2d 524, 528 (Fla.1965) ("so long as these contracts are drawn in such a manner that it requires the proverbial Philadelphia lawyer to comprehend the terms embodied in it, the courts should and will construe them liberally in favor of the insured and strictly against the insurer to protect the buying public who rely upon the companies and agencies in such transactions."). We note that the insuring clause in this homeowner's policy provision extends coverage to all bodily injury claims caused by an occurrence, which includes continuous exposure to the same harmful condition.

In contrast to insuring clauses, however, exclusionary clauses in liability insurance policies are always strictly construed. Demshar v. AAACon Auto Transport, Inc., 337 So.2d 963, 965 (Fla.1976) ("Exclusionary clauses in liability...