Steven G. Schwartz and David J. Pascuzzi of Schwartz & Horwitz, PLC, Boca Raton, for appellant.
James K. Clark of Clark, Robb, Mason, Coulombe & Buschman, Miami, for appellee, Geico General Insurance Company.
This declaratory judgment action pits Sunshine State Insurance Co., the issuer of a homeowner's policy, against Geico General Insurance Co., the issuer of an automobile insurance policy. Their dispute involves which one is liable for indemnity and defense of claims against a person they both insured. That person, a passenger in a car, grabbed the steering wheel. When the driver tried to get her passenger to stop being annoying, she lost control of
the car and it slammed into a concrete wall. The trial court determined that the passenger's actions did not constitute " use" of the car, so that Sunshine State's exclusion did not apply and it was responsible for indemnity and defense. We affirm.
The underlying lawsuit stems from an accident involving four teenagers and some horseplay. One Friday night, after a high school football game, Carley Moore was driving her parents' Toyota Corolla to a friend's house. In the front passenger seat was Nicho Watson, her boyfriend. Michele Baldasti and Kayla Mineo were in the backseat. Carley and Nicho were both seventeen; Michele and Kayla were a year younger.
During the drive, Nicho would reach over to beep the horn, as well as hold the steering wheel, to get a rise out of Carley. Even though Carley told Nicho to stop, he persisted. Keeping her left hand on the wheel, Carley tried to swat Nicho's hand away with her right hand. Nicho grabbed the wheel more than five, and probably more than ten, times; while Nicho himself never made the car swerve, the car swerved when Carley tried to swat Nicho away. As Carley was driving on an exit ramp, Nicho grabbed the wheel again; when Carley tried to push him away, she lost control of the car and its left side hit a concrete wall.
Through their parents, Michele and Kayla each filed a negligence suit against Carley and Nicho, also through their parents. Apparently, Carley settled Michele's and Kayla's claims against her, so that the action proceeded solely against Nicho. Sunshine State then filed a declaratory judgment action against Geico and others.
The aim of the declaratory judgment action was (1) to avoid liability for indemnity and the responsibility of providing a defense and (2) to pin those obligations on Geico. Sunshine State had issued a homeowner's insurance policy to Nicho's parents. Geico had issued an automobile insurance policy to Nicho and his mother, but denied both coverage and a defense.
Geico's auto insurance policy stated in its " Section I— Liability Coverages," that it would pay for the following:
Under Section I, we will pay damages which an insured becomes legally obligated to pay because of:
1. bodily injury, sustained by a person, and
2. damage to or destruction of property,
arising out of the ownership, maintenance or use of the owned auto or a non-owned auto. We will defend any suit for damages payable under the terms of this policy. We may investigate and settle any claim or suit.
(Emphasis in original.) With regard to a non-owned car, in describing the persons covered, the Geico policy also provided, in pertinent part:
Section I applies to the following with regard to a non-owned auto:
1. you and your relatives when driving the non-owned auto. Such use must be with the permission, or reasonably believed to be with the permission of the owner ...