entered an order denying the motion for reconsideration, rehearing and

Transcription

1 SUPREME COURT STATE OF FLORIDA CASE NO DANNY'S BACKHOE SERVICE, LLC, Appellant/Petitioner, First District Court of Appeals -vs- Case No. 1D AUTO OWNERS INSURANCE COMPANY, Appellee/Respondent. APPELLANT/PETITIONER'S JURISDICTIONAL BRIEF COMES NOW DANNY'S BACKHOE SERVICE, LLC (hereafter DANNYS), as Appellant/Petitioner, pursuant to Rule 9.120(d), Florida Rules of Appellate Procedure, and submits this jurisdictional brief and states: APPELLATE HISTORY The decision of the First District Court of Appeals was initially issued on May 30, DANNYS timely moved for reconsideration, rehearing and rehearing en banc on June 12, The First District Court of Appeals entered an order denying the motion for reconsideration, rehearing and rehearing en banc on July 10, Pursuant to Rule (h), Florida Rules of Appellate Procedure, the opinion sought to be reviewed was rendered on July 10, 2013.

2 DANNYS timely filed its Notice to Invoke Discretionary Jurisdiction of Supreme Court on August 4, The Notice was docketed by the Clerk of the First District Court of Appeals on August 5, 2013 and forwarded to this Court on the same day. OPINION OF THE FIRST DISTRICT COURT OF APPEALS The decision of the First District Court of Appeals, a conformed copy attached, held the commercial general liability policy issued by AUTO OWNERS INSURANCE COMPANY (hereafter AUTO OWNERS) did not provide coverage for the negligent damage to the excavator rented by DANNYS from Ring Power and affirmed the trial court's determination adverse to DANNYS. The opinion, at pages 1 and 2, notes that Ring Power sued DANNYS in a tort claim for damages to its equipment and the damage resulted when Danny Smith backed over a propane gas tank. The instant declaratory judgment action was filed by AUTO OWNERS seeking a determination of whether it had a duty under its insurance policy to defend DANNYS in the tort case. The opinion omits the undisputed material facts that Danny Smith was the managing member of DANNYS and that AUTO OWNERS admitted in a letter to Ring Power that its insured, DANNYS, was negligent in causing the damage to the rented excavator.

3 The opinion, at page 3, recites the two applicable policy exclusions which provide, 2. Exclusions(emphasis in original) This insurance does not apply to: J. Damage to Property(emphasis in original) "Property damage" to: (1) Property you own, rent, occupy or use, including any cost or expense incurred by you or any other person, organization or entity for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property; (2) Property that any of your: (a)"employees"; (b)"volunteer workers"; (c) Partners or members (if you are a partnership or joint venture); or (d) Members (if you are a limited liability company) own rent (sic), occupy or use. However this exclusion J.(2), (emphasis in original) shall not apply to your liability for damage to such property. The opinion, at page 4, recites the f'mdings of the trial court which included, "Further, there is no ambiguity between exclusion 2J (1) and (2). The opinion approves the trial court's determination by holding,

4 "We conclude the plain and unambiguous policy language excludes the leased equipment,..." The opinion, at page 5, reasons the two policy exclusion provisions are not ambiguous since, "Danny's Backhoe argues that paragraphs 2 J. (1) and 2 J. (2) create an ambiguity as to coverage that should operate in its favor. We disagree. Paragraph 2 J. (2) excludes coverage for damage to "Property that any of your (a) 'Employees'; (b)'volunteer Workers'; (c) Partners or Members (if you are a partnership or joint venture; or (d) Members (if you are a limited liability company, own, rent, occupy or use. However this exclusion J.(2), shall not apply to your liability for damage to such property." (italics added in original). It is clear in that paragraph 2 J. (1) excludes coverage for damage to property leased by the insured, while paragraph 2 J. (2) excludes coverage for damage to property leased by the insured's employees, etc., unless the insured is liable for damage to that property. (emphasis in original) The two provisions are independent of each other, are entirely consistent with each other, and are not ambiguous." ISSUE ONE: The District Court's opinion expressly and directly conflicts with the Supreme Court decision in Taurus Holdings, Inc. v. U.S. Fidelity & Guarantee, Co., 913 So.2d 528 (Fla. 2005) regarding the legal principle that insurance policy provisions must be construed according to their plain meamng. In Taurus Holdings, Inc. v. U.S. Fidelity & Guarantee, Co., 913 So.2d 528, 532 (Fla. 2005), this Court restated Florida law concerning interpretation of insurance policy provisions in the following terms, "Under Florida law, insurance contracts are construed according to their plain meaning....as we recently said: (W)e must follow the guiding principle that this Court has consistently applied that insurance contracts must be construed in accordance with the plain language of the policy. " and

5 "Moreover, "if a policy provision is clear and unambiguous it should be enforced according to its terms whether is a basic policy provision or an exclusionary provision." and The District Court's opinion expressly and directly conflicts with this Court's restatement of Florida law by refusing to enforce the clear meaning of the 2 J.(2) policy provision. Though labeled as an exclusion, that provision operates as a coverage provision by its very clear and plain terms when placed in the context of Ring Power suit against DANNYS. The 2 J.(2) policy provision, in context, would then read: "2. Exclusions This insurance does not apply to: J. Damage to Property "Property damage" to: (2)Property that any of your (DANNYS): (a) "Employees"; (b)"volunteer workers"; (c)partners or members (if you are a partnership or joint venture); or (d)members (Danny Smith) (if you are a limited liability company) own, rent, occupy or use (Negligently striking a propane tank). However this exclusion J.(2), shall not apply to your liability for damage to such property(ring Power tort suit against DANNYS). The District Court's opinion does not give the above express grant of liability coverage any legal effect and renders this policy provision a legal nullity.

6 ISSUE TWO: The District Court's opinion expressly and directly conflicts with the Supreme Court decisions in Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29 (Fla. 2000) and Taurus Holdings, Inc. v. U.S. Fidelity & Guarantee, Co., 913 So.2d 528 (Fla. 2005) regarding the construction of ambiguous insurance policies. In Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, (Fla. 2000), this Court restated Florida law regarding ambiguous insurance policies with the following principles, ",,,Florida law provides that insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties." and "If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and another limiting coverage, the insurance policy is considered ambiguous." and "Ambiguous policy provisions are interpreted liberally in favor of the insured and strictly against the drafter who prepared the policy" and "In fact, exclusionary clauses are construed more strictly against the insurer than coverage clauses." and " However, in construing insurance policies, courts should endeavor of give every provision its full meaning and operate effect." In Taurus Holdings, Inc. v. U.S. Fidelity & Guarantee, Co., 913 So.2d 528, 552 (Fla. 2005), this Court again restated Florida law concerning ambiguous insurance policy provisions in the following terms, "Under Florida law, insurance contracts are construed according to their plain meaning. Ambiguities are construed against the insurer and in favor of coverage." and "Although ambiguous provisions are construed in favor of coverage, to allow for such construction the provision must actually be ambiguous."

7 The District Court's opinion is in express and direct conflict with the decisions of this Court in Auto-Owners and Taurus Holdings, since it holds the 2 J. (1) and (2) policy exclusions are not ambiguous as a matter of law and operate to exclude the Ring Power tort claim against DANNYS from the AUTO OWNERS commercial general liability policy. The exclusion at 2 J. (1) refers to costs for repair, replacement, enhancement, restoration or maintenance of rented property associated with "Property Damage". This exclusion is akin to barring of coverage for a warranty claim for defective rented goods. The exclusion at 2 J. (2) provides for coverage of DANNYS' liability for the negligent act of its managing member that caused damage to rented property. These two policy provisions, the first excluding claims not based upon liability, and the second which provides for negligence claims based upon liability resulting from the insured's agents, can not be harmonized with each other and applied to exclude coverage of the Ring Power tort claim against DANNYS. The District Court concluded its review of the coverage issues with the following at page 5 of he opinion: "The two provisions are independent of each other, are entirely consistent with each other, and are not ambiguous"

8 The District Court's holding that "The two provisions are independent of each other..." is correct under the plain language principles of Auto- Owners and Taurus Holdings. However, the District Court's holding that "The two provisions... are entirely consistent with each other, and are not ambiguous." is in direct and irreconcilable conflict with its holding that "The two provisions are independent of each other..." The District Court's conclusion that the first exclusion, which bars warranty type claims, is consistent with the second exclusion, which provides for certain tort based claims for which the insured is liable and that results in an absence of liability coverage is in express and direct conflict with the ambiguity principles ofauto-owners and Taurus Holding which require that ambiguous policy provisions be construed against the insurer and in favor of coverage for the insured. The District Court's opinion violates and is in direct and express conflict with this Court's requirement in Auto-Owners Ins. Co v. Anderson "However, in construing insurance policies, courts should endeavor of give every provision its full meaning and operate effect."

9 WHEREFORE, the Appellant/Petitioner. DANNY'S BACKHOE SERVICE, LLC, request this Court take jurisdiction over this cause and direct filing of the record on appeal and briefs on the merits by the parties. Respectfully submitted, \ John Spiller 70HN E. SPILLER, P.A Cypress Mill Road Kissimmee, Florida Florida Bar No iesnoridalaw2ggi gom Telephone: (407) and John S. Kalil, Esq. LAW OFFICES OF JOHN S. KALIL, P.A South Point Parkway Jacksonville, Florida Florida Bar No Telephone: (904) Facsimile: (407)

10 Certificate of Service I hereby certify that a true copy of the foregoing was sent by and First Class U.S. Mail to Brett B. Little, Esq., 4719 NW 53'd Avenue, Gainesville, Florida and Thomas R. Ray, Esq., One Independent Drive, Suite 2301, Jacksonville, Florida _ i on this day of August, Spi q. Certificate of Compliance I hereby certify that this Jurisdictional Brief was prepared in Times New Roman 14-point font and complies Rules 9.100(1) and 9.210(a)(1)(2), Florida Rules of Appellate Procedure. ohn. Spil.