HARVARD FARMS, INC., JAMES SCHNEIDER, CONNIE SCHNEIDER, AND STEVE SAKS, APPELLANTS,
v.
NATIONAL CASUALTY COMPANY, APPELLEE

Fla. 3d DCA | 1990-01-02
No. 89-209
Before HUBBART, NESBITT and JORGENSON, JJ.
555 So. 2d 1278 Florida District Court of Appeal, Third District (1990) Negative Treatment
Cited by 4 cases

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Synopsis

Harvard Farms sought recovery under an animal insurance policy for a stolen purebred Arabian horse. The insurer denied coverage based on an exclusionary clause for mysterious disappearance, but the appellate court reversed the summary judgment, holding that the exclusionary clause required a showing of fraud to apply and that factual questions remained for a jury.


Holding

The exclusionary clause is not susceptible to multiple interpretations, but the trial court erred in interpreting it to exclude coverage for any mysterious disappearance regardless of fraud. The clause excludes coverage for mysterious disappearance only if loss resulted from fraud. Questions of whether there was actual theft and whether the insured was fraudulently induced are factual matters for jury determination.


Headnotes

[1] An insurance policy's exclusionary clause is construed in favor of the insured when susceptible to more than one meaning.

[2] A mysterious disappearance exclusion in an insurance policy only applies if the loss resulted from the insured being induced by fraudulent scheme, trickery, or false pret…

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Key Quotes

“exclusionary provisions which are susceptible to more than one meaning as they apply to the given facts must be construed in favor of the insured and against the insurer who chose the language in drafting the policy”

Establishes the governing rule that ambiguous exclusions are interpreted in favor of the insured

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Facts & Procedural History

Harvard Farms, Inc. and others obtained an insurance policy from National Casualty Company covering theft and unlawful removal of a purebred Arabian h…

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Opinion of the Court
JORGENSON, Judge.

JORGENSON, Judge.

Harvard Farms, Inc., et al., appeal from an order of final summary judgment in an action to recover under an animal insurance policy covering theft and unlawful removal of a horse. For the following reasons, we reverse.

Harvard Farms entered into an insurance contract with National Casualty Company which covered the “theft and unlawful removal” of a purebred Arabian horse named Sahr Hal Sahr. The policy contained an exclusionary clause which stated:1

BUT IN NO EVENT DOES THIS EXTENSION COVER: a) any loss arising from mysterious disappearance, escape, or voluntary parting of possession or title to the animal(s) as a result of the insured (or others to whom the animals may have been entrusted) being induced by a fraudulent scheme, trickery, or similar false pretense, or consequential loss. Sometime between April 2, 1985, and November 6, 1985, the horse was lost. Upon notification of the loss, the insurer denied coverage, claiming that the exclusion for loss due to mysterious disappearance applied. Thereafter, Harvard Farms filed a lawsuit against National Casualty for breach of contract. Both parties moved for summary judgment. Based on the terms of the animal insurance contract, the trial court granted National Casualty’s motion and, in doing so, erred.

It is well settled that exclusionary provisions which are susceptible to more than one meaning as they apply to the given facts must be construed in favor of the insured and against the insurer who chose the language in drafting the policy. State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245, 1248 (Fla.1986); Edward J. Gerrits, Inc. v. Royal Marine Serv. Co., 456 So. 2d 1316, 1317 (Fla. 3d DCA 1984), rev. denied sub nom. Lexington Ins. Co. v. Royal Marine Serv. Co., 464 So. 2d 555 (Fla.1985). After examining the exclusionary clause in question, as well as the coverage provided, we conclude that the exclusionary clause is not susceptible to more than one interpretation.

However, we hold that the trial court erred in interpreting the policy to exclude coverage for any mysterious disappearance.

By its plain terms, the exclusionary clause excludes from coverage any loss which results from mysterious disappearance only if it can be shown that some type of fraud induced the insured to lose the horse. A grammatical analysis reveals that the restrictive clause “as a result of” necessarily modifies each preceding clause within the sentence and not merely “voluntary parting of possession.” See H.W. Fowler, A Dictionary of Modern English Usage 588 (2d Ed.1965). If the insurer wanted to make it clear that the “as a result of” clause qualified only the words “voluntary parting of possession,” then this could have been done by inserting “as a result of” immediately before “voluntary parting of possession.” Id.

Moreover, the insurer erroneously argues that “as a result of” cannot modify “mysterious disappearance” because there is no comma before “as a result of.” In fact, a comma before the “as a result of” clause would be improper. See R. Gavin & E. Hutchinson, Reference Manual for Stenographers and Typists 46 (3d Ed.1961) (a restrictive, or essential, clause is necessary to the meaning of the sentence. Because it cannot be omitted, commas are not used to set it off); W. Himstreet & W. Baty, Business Communications Principles and Methods (7th Ed.1984) (a comma is used to separate words in a series and to separate a nonrestrictive clause from the rest of the sentence) (emphasis supplied).

Thus, we agree with the insured that the trial court erred in entering final summary judgment in favor of the insurer based on the terms of the insurance policy. We also conclude that the questions of whether there in fact was a theft and whether the insured was fraudulently induced are questions of fact to be determined by a jury.

Reversed and remanded for further proceedings consistent with this opinion.

. The exclusionary language used in the instant case is unique. More commonly, policies insure against theft and exclude only for mysterious disappearance. See generally Coastal Plains Feeders, Inc. v. Hartford Fire Ins. Co., 545 F. 2d 448 (5th Cir.1977); 10A Couch on Insurance § 42.84 (2d Ed. 1982).


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Citator

Cited By

  • PMR Constr., Inc. v. Ranger Ins. Co., 587 So. 2d 549 (Fla. 3d DCA 1991)
    …nd” entitling PMR to coverage under the policies for Phases II and III, remains to be determined by the trier of fact. Thus, summary judgment was improper. Moore v. Morris, 475 So. 2d 666 (Fla.1985); see Harvard Farms, Inc. v. National Casualty Co., 555 So. 2d 1278 (Fla. 3d DCA), review denied, 564 So. 2d 1086 (FIa.1990). Reversed and remanded.…
  • Saks v. Nat'l Cas. Co., 623 So. 2d 853 (Fla. 3d DCA 1993)
    …PER CURIAM. This is the second time this case appeared before this comí; after entry of summary judgment. Harvard Farms, Inc. v. Nat’l Casualty Co., 555 So. 2d 1278 (Fla. 3d DCA1990). The background of the mysterious disappearance of the horse, Sahr Hal Sahr, is set forth in our previous opinion. After remanding the case for trial on the issue of whether the insurance policy covered the loss of the horse, Sahr…

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