HARRY DALRYMPLE, APPELLANT,
v.
IHNEN POOL SERVICE AND SUPPLY, INC., A FLORIDA CORPORATION, ANTHONY AYRA, DANIEL STARKE AMICK AND SOUTH CAROLINA INSURANCE COMPANY, APPELLEES
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Plaintiff sought recovery from an insurance company for injuries sustained in an automobile accident caused by an intoxicated employee of the insured. The court affirmed summary judgment for the insurance company, holding that the policy's explicit exclusion for injuries arising from vehicle operation barred coverage regardless of whether plaintiff's theory was based on negligent hiring and retention of the employee.
The court held that the exclusion applies and bars coverage because plaintiff's injuries clearly arose out of the operation or use of an automobile operated by a person in the course of employment by the insured, regardless of whether negligent hiring and retention was alleged as the legal theory of liability.
[1] An insurance policy exclusion for "bodily injury" or "property damage" "arising out of" the ownership, maintenance, use, or entrustment of an "auto" owned or operated by…
[2] The phrase "arising out of" in an insurance policy exclusion is not ambiguous and is to be interpreted in its normal context.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“This insurance does not apply: (b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of (1) any automobile or aircraft owned or operated by or rented or loaned to any insured, or (2) any other automobile or aircraft operated by any person in the course of his employment by any insured.”
The policy exclusion language that the court found barred coverage for plaintiff's claims
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Join FLexlaw to unlock all legal intelligencePlaintiff was severely injured when a vehicle owned by the insurance company's insured and driven by a drunken employee of the insured collided with p…
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WEBSTER, PETER D., Associate Judge.
Appellant, plaintiff below, seeks review of a summary final judgment in favor of appellee South Carolina Insurance Company, holding that a multi-peril policy issued by the Company explicitly excluded coverage for injuries sustained by plaintiff in an auto accident.
Plaintiff was severely injured when a vehicle owned by the Company’s insured and driven by a drunken employee of the insured collided with plaintiffs vehicle. Plaintiff sued the Company and its insured, proffering a number of theories for recovery. For purposes of this appeal, however, the only relevant theory is that based on an alleged cause of action for negligent hiring and retention of the employee by the insured. The Company eventually moved for summary judgment on the ground that the following language in its multi-peril policy issued to the insured explicitly excludes coverage:
This insurance does not apply:
(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of (1) any automobile or aircraft owned or operated by or rented or loaned to any insured, or (2) any other automobile or aircraft operated by any person in the course of his employment by any insured....
The court below granted summary judgment, resulting in this appeal.
In Cesarini v. American Druggist Ins. Co., 463 So. 2d 451 (Fla. 2d DCA 1985), the court upheld summary judgment in favor of an insurance company on a cause of action for negligent hiring and supervision of an employee who, while driving a vehicle owned by the insured, was involved in an accident resulting in injury to the plaintiff. The decision was based on an exclusion in substance identical to that contained in the multi-peril policy here. Plaintiff does not seriously argue that Cesarini was incorrectly decided. Rather, plaintiff seeks to distinguish Cesarini, arguing that in Ces-arini negligent entrustment was the sole proximate cause of plaintiffs injuries, whereas, in this case there existed concurring causes for the injuries — retaining the employee at all and allowing him to drive— and that only the latter cause is excluded under the policy.
This Court does not believe that Cesarini is distinguishable from the present case. In Cesarini, the plaintiff made precisely the type of argument made by plaintiff here — “[ajppellant argues that the exclusion is ambiguous because it does not address this type of circumstance in which joint acts of negligence (those of the [insured] and the driver) combined to cause injury.” 463 So. 2d at 452. The court in Cesarini rejected that argument, concluding that the injuries clearly arose from use of the vehicle and that, therefore, the exclusion applied.
This Court believes that Cesarini was correctly decided and that it is consistent with other decisions expressing the law in this State. See, e.g., Volkswagen Ins. Co. v. Dung Ba Nguyen, 405 So. 2d 190 (Fla. 3d DCA 1981), pet. for rev. den., 418 So. 2d 1280 (Fla.1982); Atkins v. Bellefonte Ins. Co., 342 So. 2d 837 (Fla. 3d DCA 1977). Because plaintiffs injuries clearly arose out of the “operation” or “use” of an “automobile ... operated by [a] person in the course of his employment by [the] insured,” the exclusion applies. Accordingly, the summary final judgment must be affirmed.
AFFIRMED.
LETTS and WALDEN, JJ„ concur.
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Westmoreland v. Lumbermens Mut. Cas. Co., 704 So. 2d 176 (Fla. 4th DCA 1997)…y reasoned, such negligence must necessarily be — at the most — a concurring cause. But, he concluded, this court has expressly rejected the concurring cause theory as regards this kind of exclusion in Dalrymple v. Ihnen Pool Service & Supply, Inc., 498 So. 2d 646 (Fla. 4th DCA 1986). He also concluded that our later decision in Frontier Insurance Co. v. Pinecrest Preparatory School, Inc., 658 So. 2d 601 (Fla. 4th DCA 1995), rev. den., 664 So. 2d 248 (Fla.1995), does not recede from the holding in Dalrymple.…1 / 2
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Transamerica Ins. Co. v. Snell, 627 So. 2d 1275 (Fla. 1st DCA 1993)…ison and Associates’ agents is necessarily related to such insolvency, thus precluding resort to the concurrent cause doctrine. See also Krempl v. Unigard Sec. Ins. Co., 69 Wash.App. 703, 850 P. 2d 533 (1993); Dalrymple v. Ihnen Pool Serv. & Supply, 498 So. 2d 646 (Fla. 4th DCA 1986). Our conclusion that Snell’s action arises out of FHBHBT’s insolvency, and that Tison [*1277] and Associates is thus not afforded coverage under the Transamerica policy due to the insolvency exclusion, accords with the ruling of…
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Frontier Ins. Co. v. Pinecrest Preparatory Sch. Inc., 658 So. 2d 601 (Fla. 4th DCA 1995)…le policy is not afforded under a general liability policy simply by alleging negligence in hiring or supervising the negligent party or agency, because the two policies are deemed complementary. E.g., Dalrymple v. Ihnen Pool Serv. and Supply, Inc., 498 So. 2d 646 (Fla. 4th DCA 1986) (business multi-peril policy); Johnson v. Unigard Ins. Co., 387 So. 2d 1058 (Fla. 5th DCA 1980) (homeowner’s policy). However, that is not to say that there can never be overlapping coverage between a general liability and an aut…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Atkins v. Bellefonte Ins. Co., 342 So. 2d 837 (Fla. 3d DCA 1977)
- Cesarini v. Am. Druggist Ins. Co., 463 So. 2d 451 (Fla. 2d DCA 1985)
- Volkswagen Ins. Co. v. Dung BA Nguyen, 405 So. 2d 190 (Fla. 3d DCA 1981)