Zurich Am. Ins. Co. v. Cernogorsky
| Decision Date | 22 February 2017 |
| Docket Number | No. 3D16–689,3D16–689 |
| Citation | 211 So.3d 1119 |
| Parties | ZURICH AMERICAN INSURANCE COMPANY, a foreign corporation licensed to do business in the State of Florida, Appellant, v. John CERNOGORSKY, Appellee. |
| Court | Florida District Court of Appeals |
Conroy Simberg and Hinda Klein, (Hollywood); McIntosh Sawran & Cartaya, and Douglas M. McIntosh and Kimberly Kanoff Berman (Fort Lauderdale), for appellant.
Law Offices of Hugh H. Bernstein, and Hugh H. Bernstein ; Law Offices of William R. Jones, III, and William R. Jones, III ; Jay M. Levy, for appellee.
Before WELLS, SALTER and LOGUE, JJ.
Zurich American Insurance Company appeals from a final judgment entered in favor of John Cernogorsky, the plaintiff below, after a jury trial on his claim for underinsured motorist ("UM") coverage under a business automobile liability policy issued to his employer, The Green Companies. Zurich claims that it was entitled either to a summary judgment or a directed verdict because coverage was a legal not a factual question, and because it was entitled to a judgment as a matter of law.1 We agree and reverse.
On February 18, 2011, Mr. Cernogorsky was injured when struck by an automobile while he was walking in front of The Green Companies' offices on the way into the building. The car that struck him was driven by an underinsured motorist. After Mr. Cernogorsky demanded and received payment up to the insurance policy limits ($100,000) of the motorist that struck him, he rejected the UM policy limits ($10,000) of his own insurance and sought UM coverage under The Green Companies' policy with Zurich.2 On August 24, 2011, alleging that he was injured as a pedestrian while in the course and scope of his employment with The Green Companies, Mr. Cernogorsky sued Zurich for $1,000,000 in UM benefits. The basis of Mr. Cernogorsky's claim for UM benefits was that: (1) he was a covered individual under The Green Companies' policy because the policy covered autos not owned by The Green Companies, which according to Mr. Cernogorsky included vehicles owned by employees; and, (2) the policy provided primary coverage which included UM coverage that extended to him because The Green Companies had failed to execute a UM coverage waiver as required by section 627.727(1) of the Florida Statutes.3
In response, Zurich argued that Mr. Cernogorsky was not entitled to UM benefits because: (1) he was not a named insured under the policy issued to The Green Companies; (2) the subject policy was not a primary liability auto insurance policy, but an excess liability policy, and thus not governed by section 627.727(1), but by section 627.727(2) of the Florida Statutes4 which does not require a written rejection of UM benefits; and (3) because Mr. Cernogorsky was a pedestrian at the time of the accident he could not recover UM benefits under this policy even had such coverage been provided.
Both Mr. Cernogorsky and Zurich moved for summary judgment, but both motions were denied and this matter was set for trial solely on the coverage issue. A jury thereafter rendered a verdict in Mr. Cernogorsky's favor determining that coverage existed. Zurich's renewed motions for a directed verdict, for judgment notwithstanding the verdict, and for a new trial were denied. Zurich appeals, we reverse.
We review the instant appeal from a final judgment interpreting the provisions of an insurance policy to determine coverage de novo . See Penzer v. Transp. Ins. Co. , 29 So.3d 1000, 1005 (Fla. 2010) (); Barcelona Hotel, LLC v. Nova Cas. Co. , 57 So.3d 228, 230 (Fla. 3d DCA 2011) (same).
Where the facts are not in dispute and the language of an insurance policy is unambiguous and not subject to conflicting inferences, "its construction is for the court, not the jury." Ellenwood v. S. United Life Ins. Co. , 373 So.2d 392, 394–95 (Fla. 1st DCA 1979). Moreover, even where an ambiguity exists, if the facts are not disputed "it is within the province of the trial judge not the jury to resolve the ambiguity as a matter of law." See id. ; see also Penzer , 29 So.3d at 1005 (quoting Garcia v. Fed. Ins. Co. , 969 So.2d 288, 291 (Fla. 2007) )).
Here, because neither a factual dispute nor an ambiguity was demonstrated to exist, the coverage issue raised below should have been decided by the court below and on the record below, and for the following reasons, should have been resolved in Zurich's favor.
First, Mr. Cernogorsky is not a named insured under the Zurich/Green Companies policy as he claimed below. This policy issued to The Green Companies is a package policy providing $1,000,000 in commercial general liability coverage to The Green Companies for "covered autos." This term, as identified in this policy, encompasses either "hired autos" or "nonowned autos." By definition, a "hired auto" covered by this policy is a vehicle leased, hired, rented or borrowed by The Green Companies. No such autos are involved in this matter. A "nonowned auto" as defined by this policy includes autos owned by employees, but only while they are being used for company business or "personal affairs" of The Green Companies:
Like "hired autos," no "nonowned" autos were involved in the incident that caused Mr. Cernogorsky's injury. In fact, Mr. Cernogorsky's vehicle was not involved in the incident at all. In short, no "covered autos" were involved in this matter, thereby utterly refuting Mr. Cernogorsky's claim that he was an insured under this policy by virtue of these provisions.
As the policy confirms, the only insured under this policy is The Green Companies. The Business Auto Coverage portions of the policy state that "the words ‘you’ and ‘your’ as used in the policy refer to the Named Insured shown in the Declarations." The insured named in the Business Auto Declarations is "THE GREEN COMPANIES INC (SEE NAMED INSURED ENDORSEMENT)." Not only is The Green Companies the only named insured in the policy, other portions of the policy also expressly exclude employees while using their own autos from the definition of the term "insured."
Specifically, the Designated Insured Endorsement, which expressly applies to the Business Auto Coverage Form, provides that "[e]ach person or organization shown in the Schedule [of Coverages and Covered Autos] is an ‘insured’ for Liability Coverage, but only to the extent that person or organization qualifies as an ‘insured’ under the Who Is An Insured Provision contained in Section II of the Coverage Form." (Emphasis added).5 Section II of the Business Auto Coverage Form in turn expressly excludes from the definition of the term "insured" any employee while driving his or her own vehicle:
(Emphasis added).
In sum, these provisions confirm that only The Green Companies is insured under this policy for any liability that may arise from the use of a covered vehicle even if that vehicle is owned by an employee and is being used in company business. Mr. Cernogorsky is not an insured under Zurich's policy.
Secondly, the policy at issue here is not a primary liability policy subject to the waiver of UM coverage mandate imposed by section 627.727(1) of the Florida Statutes as Mr. Cernogorsky claims. The liability section of the Business Auto Coverage Form provides that Zurich will pay "all sums an ‘insured’ [The Green Companies] must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto’ ["hired autos" or "nonowned autos"]." However, that same provision also expressly excludes from such coverage bodily injury to an employee incurred during the course of his or her employment:
The Business Auto Coverage Form also expressly states that the coverage provided to autos "owned" by The Green Companies (there are none) is primary while coverage provided as to "nonowned autos" (which includes an employee's vehicle) is excess:
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