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Gotham Insurance Co. v. West Coast Fire Protection Corp.

United States District Court, M.D. Florida, Fort Myers Division

August 15, 2017

GOTHAM INSURANCE COMPANY, Plaintiff,
v.
WEST COAST FIRE PROTECTION CORP., GIOVANNI R. BLANCO, MARIA FORESTE, individually, and as parents and natural guardians of E.F., and RAYMOND FORESTE, individually, and as parents and natural guardians of E.F., Defendants.

          OPINION AND ORDER

          JOHN E. STEELE SENIOROR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the parties' cross Motions for Summary Judgment (Docs. ##79, 80, 82), and supporting materials (Docs. ##64-78, 81), filed on June 19, 2017. The parties filed responses in opposition to each other's motions (Docs. ##86, 87, 88, 89) on July 13, 2017. Both parties seek judgment in their favor as to plaintiff's duty to defend and indemnify defendants in an underlying auto accident lawsuit pursuant to a commercial general liability insurance policy and an excess/umbrella insurance policy. For the reasons set forth below, the Court grants summary judgment in favor of plaintiff.

         I.

         Plaintiff seeks a declaration as whether it has a duty to defend and indemnify its insureds for an underlying negligence action styled Maria Foreste and Raymond Foreste, individually and as parents and natural guardians of E.F., a minor v. Giovanni Blanco and West Coast Fire Protection Corp., Case No. 2015-CA-2073, filed on August 10, 2015, in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida (“Underlying Action”). This lawsuit arises from an auto accident involving a company truck driven by defendant Giovanni Blanco which caused traumatic injuries to E.F., a minor child.

         This coverage dispute centers around an auto exclusion contained in a commercial general liability insurance policy (CGL Policy) and an excess/umbrella policy (UMB Policy) that plaintiff Gotham Insurance Company (plaintiff or Gotham) issued to defendant West Coast Fire Protection Corp. (defendant or West Coast Fire) (collectively, “Policies”). (Docs. ##5-1, 5-2.)[1] Pursuant to the Policies, Gotham agreed to defend and indemnify West Coast Fire in lawsuits asserting certain types of claims, subject to certain enumerated exclusions. In its Complaint (Doc. #5), Gotham seeks a declaration that there is no coverage for the underlying claim, and West Coast Fire and Blanco have filed a counterclaim (Doc.#38), seeking a declaration that there is coverage for such occurrences and has demanded that Gotham tender its policy limits to the Forestes (E.F.'s parents). (Id. at ¶ 20.) The Forestes also contend coverage exists based upon their interpretation of the Policies, estoppel, and other theories. (Doc. #40.)

         II.

         The following facts are undisputed by the parties:

         A. The CGL Policy

         Gotham, a surplus-lines insurance carrier, first began issuing insurance coverage to West Coast Fire, a fire suppression contractor, in 2011, with the first policy period beginning in 2012. Renewal policies were issued each year and, as relevant here, Gotham provided CGL coverage to West Coast Fire pursuant to Policy Number GL2015FSC00161 for policy period January 19, 2015 to January 19, 2016 (the “CGL Policy”). (Doc. #5-1.) The CGL Policy carried an occurrence limit of $1, 000, 000 and a general aggregate limit of $2, 000, 000, subject to the terms, conditions, and exclusions of the policy. (Id. at 5.) The CGL Policy states, in relevant parts:

         1. Insuring Agreement

         a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies…

         2. Exclusions

         This insurance does not apply to:

         g. Aircraft, Auto or Watercraft

“Bodily Injury” or “property damage” arising out of the ownership, maintenance use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading.”

         (Doc. #5-1, pp. 13-15.) “Auto” is defined as “a land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment.” (Id. at 22.)

         B. The Umbrella Policy (UMB)

         Gotham provided commercial liability umbrella coverage to West Coast Fire pursuant to Policy Number UM2015FSC00064 for policy period January 19, 2015 to January 19, 2016 (the “UMB Policy”). (Doc #5-2.) The UMB Policy carried an occurrence limit of $2, 000, 000, subject to the terms, conditions, and exclusions of the policy. (Id. at 4.) The UMB Policy states, in relevant parts:

1. Insuring Agreement
a. We will pay on behalf of the insured the “ultimate net loss” in excess of the “retained limit” because of “bodily injury” or “property damage” to which this insurance applies….
2. Exclusions
This insurance does not apply to:
f. Auto Coverages
(1) “Bodily injury” or “property damage” arising out of the ownership, maintenance or use of any “auto” which is not a “covered auto”….

         (Id. at 6-7.) “Covered auto” is defined as “only those ‘autos' to which underlying insurance applies.” (Id. at 17.) “Underlying insurance” is defined as “any policies of insurance listed in the declarations under the schedule of ‘underlying insurance.'” (Id. at 19.)

         The Declarations page does not identify any underlying policy insurance numbers. See Doc. #5-2, p. 4, Item 6 left blank. Item 7 of the Declarations page provides:

Item 7. Form(s) and Endorsement(s) made a part of the police at time of issue: EX00271010, IL00010910, CU00010900.

(Id.)[2] Endorsement EX00271010 is the “Schedule of Primary Insurance, ” which is a chart with spaces to itemize sources of primary insurance. (Id. at 5.) The Court sets forth the Schedule in full here:

         (Table Omitted)

         (Doc. #5-2, p. 5.) To highlight the relevant portions of the Schedule of Primary Insurance, the Court notes that the word “EXCLUDED” was typed in the pre-printed section of the Schedule of Primary Insurance for auto coverage. No auto carrier is identified, and there is no reference to Allstate Insurance Company, which was West Coast Fire's auto insurance carrier at the time of the auto accident. The only insurance policy identified in the Schedule of Primary Insurance is the Gotham CGL Policy, GL2015FSC00161, which excludes auto coverage. See supra, Sec. II.A.

         The UMB Policy also includes an “AUTO EXCLUSION ENDOREMENT, ” form ...


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