Wilson ex rel. Estate of Wilson v. General Tavern, No. 05-81128CIV.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
• Writing for the Court: Ryskamp
• Citation: 469 F.Supp.2d 1214
• Decision Date: 29 December 2006
• Docket Number: No. 05-81128CIV.
• Parties: Myra WILSON, for the ESTATE OF Adriane WILSON, Plaintiff, v. GENERAL TAVERN CORPORATION, d/b/a, Big City Tavern, a Florida corporation, and Cecelia A. Jackson, an individual Defendants. Cecelia A. Jackson, an individual, Third-Party Plaintiff, v. Interstate Fire and Casualty Company, Third-Party Defendant.

469 F.Supp.2d 1214 Myra WILSON, for the ESTATE OF Adriane WILSON, Plaintiff,
v.
GENERAL TAVERN CORPORATION, d/b/a, Big City Tavern, a Florida corporation, and Cecelia A. Jackson, an individual Defendants.
Cecelia A. Jackson, an individual, Third-Party Plaintiff,
v.
Interstate Fire and Casualty Company, Third-Party Defendant. No. 05-81128CIV. United States District Court, S.D. Florida. December 29, 2006.

Page 1215

Sina Bahadoran, Andrew E. Grigsby, Hinshaw & Culbertson LLP, Miami, FL, for Interstate.

Steven B. Phillips and Douglas L. Phipps, Littky Smith & Phipps, Lake Worth, FL, for Jackson.

ORDER GRANTING INTERSTATE'S MOTION FOR SUMMARY JUDGMENT AND DENYING WILSON'S MOTION FOR SUMMARY JUDGMENT

RYSKAMP, District Judge.

THIS CAUSE comes before: the Court pursuant to Third-Party Defendant Interstate Fire & Casualty Company's ("Interstate") Motion for Summary Judgment, filed June 14, 2006. [DE 18]N Plaintiff Myra Wilson ("Wilson") responded; and filed her own Motion for Summary Judgment on July 20, 2006 [DE 25]. Interstate responded to Wilson's Motion' for Summary Judgment on July 31, 2006 [DE 27]. Wilson replied on August 10, 2006 [DE 28].¹ The court heard oral argument on

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these motions on September 22, 2006. These motions are ripe for adjudication.

I. BACKGROUND

The of facts of this case are tragic. Minutes after midnight on June 15, 2000, Cecelia A. Jackson ("Jackson"), a cook for General Tavern Corporation ("General Tavern"), doing business as The Big City Tavern in West Palm Beach, Florida, finished her shift and began to drive home in her own car while legally intoxicated. Adriane Jerome Wilson ("Decedent"), age 24, was standing in a telephone booth at or near the intersection of 8th St. and North Tamarind Ave. Jackson struck and killed Decedent. Wilson, Decedent's mother, filed suit against Jackson and General Tavern, alleging as follows:

4) On or about June 15, 2000, ADRIANE JEROME WILSON, age 24, deceased, was lawfully in a public place, to wit: a telephone booth at or near the intersection of the 8th St. and N. Tamarind Ave, City of West Palm Beach, Palm Beach County, when he was struck and killed by the Defendant CECILIA A. JACKSON.

5) The Defendant, CECILIA A. JACKSON, was intoxicated and/or her mental and/or physical capacity was impaired, which caused her to lose control of her motor vehicle, jump a curb, cross over a pedestrian sidewalk striking the phone booth occupied by the deceased, ADRIANE JEROME WILSON.

* * * * * *

11) Jackson negligently became intoxicated when she knew or should have known that she would be driving home in her motor vehicle.

12) As a direct and proximate result of the negligent consumption of alcohol by JACKSON, JACKSON struck and killed ADRIANE JEROME WILSON with her motor vehicle after leaving the premises of GENERAL TAVERN....

(Doc. 1; Ex. C). Interstate issued a Commercial Business Policy, No. CBP3002147 ("policy"), to General Tavern, incepting on December 15, 1999 and terminating on December 15, 2000. (Doc. 17; Ex. A). Interstate entered into a confidential settlement agreement with Wilson as to her claim against General Tavern.

Wilson's claim against Jackson forms the basis of this action. In pertinent part, the policy provides as follows:

HIRED AUTO AND NON-OWNED AUTO LIABILITY HIRED AUTO LIABILITY

The insurance provided under COVERAGE A (Section 1) applies to "bodily injury" or "property damage" arising out of the maintenance or use of eight "hired auto" by you or your employees in the course of your business.

* * * * * *

2. WHO IS AN INSURED (Section II) is replaced by the following:

Each of the following is an insured under this insurance to the extent set forth below:

a. You;

b. Any other person using any "hired auto" with your permission.

c. With respect to a "non-owned auto", any partner or executive officer of yours, but only while such "non-owned who auto" is being used in your business;

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d. Any other person or organization, but only with respect to their liability because of acts or omissions of an insured under a, b, or c above.

None of the following is an insured:

a. Any person engaged in the business of his or her employer with respect to "bodily injury" to any co-employee of such person injured in the course of employment;

b. Any partner or executive officer with respect to any "auto" owned by such partner or officer or a member of his or her household;

c. Any person while employed in or otherwise engaged in duties in connection with an "auto business", other than an "auto business" you operate;

d. The owner or lessee (of whom you are a sublessee) of a "hired auto" or the owner of a "non-owned auto" or any agent or employee of any such owner or lessee;

e. Any person or organization with respect to the, conduct of any current or past partnership or joint venture that is not shown as a Named Insured in the Declarations.

NON-OWNED AUTO LIABILITY

The insurance provided under COVERAGE A (Section 1) applies to "bodily injury" or "property damage" arising out of the use of any "non-owned auto" in your business by any person other than you.

The following additional definitions apply:

* * * * * *

"Hired auto" means any "auto" you lease, hire, or borrow. This does not include any "auto" you lease, hire, or borrow from any of your employees or members of their households, or from any partner or executive officer of yours. "Non-owned auto" means any "auto" you do not own, lease, hire or borrow which are used in connection with your business. However, if you are a partnership a "non-owned auto" does not include any auto owned by any partner.

(Doc. 1; Ex. B). At the time of the accident, Jackson had finished her shift at General Tavern and was driving home. (Jackson Deposition, throughout). At the time of the accident, Jackson was employed by General Tavern as a cook. During her entire period of employment at General Tavern she was employed as a cook. Jackson was neither a partner nor an executive officer, of General Tavern. (Jackson Deposition, 8). Jackson was driving her own automobile at the time of the accident. (May 3, 2006 Florida Department of Highway Safety Motor Vehicle Inquiry for 1999 Mazda, VINJM1NA3516L0107001; June 15, 2000 Florida Traffic Crash Report No. 5849427).

Jackson entered into a consent judgment with Decedent's estate for $1.85 million. Interstate was never notified of Jackson's intent to enter into a consent judgment. (Price Decl.). In fact, at no time while the underlying action was pending did Jackson tender same to Interstate for defense or indemnity. Jackson now seeks to enforce that judgment against Interstate, claiming she is covered, under the policy. Interstate and Wilson have filed cross-motions for summary judgment on the issue of whether Jackson is covered under the policy.

II. LEGAL STANDARD

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled

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to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106, S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). The movant may meet this standard, by presenting evidence demonstrating the absence of a, dispute of material fact or by showing that the nonmoving party has not presented evidence in support of an element of its case on which it bears the burden of proof. Id. at 322-23, 106 S.Ct. 2548. The...