Zurich American Ins. Co. v. Ainsworth

• Decision Date: 05 August 2009
• Docket Number: No. 3D08-3022.,3D08-3022.
• Citation: 18 So.3d 9
• Parties: ZURICH AMERICAN INSURANCE COMPANY, a foreign corporation, d/b/a Zurich U.S., a/k/a Zurich North America, Petitioner, v. Cathleen AINSWORTH, as parent and natural guardian of Joshua Ainsworth, and Colonial American Casualty and Surety Company, a/k/a Colonial American Casualty and Liability, Respondents.
• Court: Florida District Court of Appeals

18 So.3d 9

ZURICH AMERICAN INSURANCE COMPANY, a foreign corporation, d/b/a Zurich U.S., a/k/a Zurich North America, Petitioner, v. Cathleen AINSWORTH, as parent and natural guardian of Joshua Ainsworth, and Colonial American Casualty and Surety Company, a/k/a Colonial American Casualty and Liability, Respondents.

No. 3D08-3022.

District Court of Appeal of Florida, Third District.

August 5, 2009.

Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer and Hinda Klein, Hollywood, for petitioner.

Wasson & Associates and Roy Wasson and Annabel C. Majewski, Miami; Brett A. Weinberg, Coral Gables, for respondents.

Before RAMIREZ, C.J., and COPE and SUAREZ, JJ.

SUAREZ, J.

Zurich American Insurance Company ("Zurich") petitions this Court, pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B), for a writ of certiorari reversing the opinion of the Circuit Court Appellate Division. On review of the second tier petition for writ of certiorari, we grant the petition and quash the circuit court opinion, which interprets a MedPay coverage provision of a general liability insurance policy issued by Zurich to Total-Bank in favor of coverage on a claim made by Appellee, Cathleen Ainsworth. We find that the Circuit Court did not apply the correct law when it determined both that MedPay coverage was a liability issue and that Quail Roost Drive, where the accident occurred, met the MedPay coverage provision of "ways next to premises" owned or rented to TotalBank.

Zurich insured TotalBank under a general liability policy of insurance. The policy provided MedPay coverage,¹ regardless of fault, for bodily injury caused by an accident "[o]n ways next to premises you own or rent; or [b]ecause of your operations." TotalBank rents a building in a shopping center located on Quail Roost Drive. Between the parking lot of the shopping center and Quail Roost Drive there is a swale, a sidewalk and another swale. Quail Roost Drive does not abut or touch the parking lot, much less Total-Bank's rented premises in the shopping center. On September 4, 2002, Ms. Ainsworth and her son were involved in an automobile accident in which her son sustained injuries when her car, while proceeding on Quail Roost Drive, collided with two other vehicles. One of the vehicles struck her car as it was exiting a driveway from a Burger King in the shopping center. Ms. Ainsworth submitted a claim with TotalBank's insurer, Zurich, for MedPay benefits for the injuries that her son sustained. When Zurich denied her claim, Ms. Ainsworth, on behalf of her son, sued Zurich to recover his medical costs and lost wages under Zurich's MedPay policy with TotalBank.² She alleged that, while a passenger in her car driving on Quail Roost Drive, her son was a business invitee on "ways next to" the property of TotalBank when, as a result of an automobile accident, he was injured and received medical treatment and costs which she claims are covered by the MedPay provisions of TotalBank's insurance policy with Zurich. The trial court granted summary judgment in favor of Zurich holding that there was no coverage under the MedPay provision of the policy for the accident because it neither occurred on ways next to the premises nor out of TotalBank's operations. Ainsworth appealed to the Circuit Court Appellate Division which reversed the summary judgment, finding that a genuine issue of material fact remains as to whether the landscaping or design of TotalBank caused the bank to be liable for the accident and whether the Quail Roost Drive location meets the MedPay policy coverage provision of "ways next to premises" owned or rented by TotalBank.

We limit our review of the Circuit Court's decision on second tier petition for writ of certiorari to issues of whether the Circuit Court afforded due process and applied the correct law. We grant the petition for writ of certiorari and quash the opinion below on grounds that the Circuit Court did not apply the correct law. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995); City of Miami v. Cortes, 995 So.2d 604 (Fla. 3d DCA 2008).

Under a general liability insurance policy, MedPay coverage is primarily intended to pay for injuries sustained by the members of the general public while on the insured's premises or otherwise exposed to the insured's operations. See generally 11 Lee R. Russ & Thomas F. Segally, Couch on Insurance 3d § 158.35 (1998).³ Coverage is typically limited by the activity surrounding the area where the accident occurred or to the location where the injury occurred or both.

The first issue raised on appeal concerns whether the Circuit Court was correct in determining that a genuine issue of material fact on liability precluded summary judgment in favor of Zurich. Analysis of MedPay coverage does not require the application of principles of fault to resolve coverage. The issue is not fault, but is whether the accident meets the policy's MedPay provision for providing coverage. Because the Circuit Court considered issues of liability in determining the scope of coverage, by finding that a genuine issue of material fact remains as to whether "the design and landscaping of TotalBank caused [Ainsworth's] failure to see the car she initially struck," the Circuit Court misconstrued the MedPay coverage provision, which has no relation to fault, and therefore applied the incorrect law.

The next issue is whether the Circuit Court misconstrued the MedPay coverage provision when it determined that Quail Roost Drive met the Zurich MedPay policy provision of "ways next to premises" owned or rented by the insured, Total-Bank. We find that the Circuit Court misconstrued the policy provision. The interpretation of a contract is a matter of law subject to de novo review. Envtl. Servs. Inc. v. Carter, 9 So.3d 1258 (Fla. 5th DCA 2009); Imagine Ins. Co. v. State ex rel. Dep't of Fin. Servs., 999 So.2d 693 (Fla. 1st DCA 2008). This point on appeal concerns the interpretation of the term of the MedPay provision, "on ways next to."⁴ Both parties always have been in agreement that the place of the accident was on Quail Roost Drive. This fact is not in dispute. The question, then, is whether, based on the facts of this case, Quail Roost Drive meets the policy coverage provision of "ways next to premises" owned or rented by TotalBank. The term, "next to," is defined by Webster's New Collegiate Dictionary (1980) as "immediately...