THE ITNOR CORPORATION, ET AL., APPELLANTS,
v.
MARKEL INTERNATIONAL INSURANCE COMPANY, LTD., APPELLEE

Fla. 3d DCA | 2008-05-21
Nos. 3D07-1449, 3D07-1613
Before GERSTEN, C.J., and LAGOA, J., and DAMOORGIAN, Associate Judge.
981 So. 2d 661 Florida District Court of Appeal, Third District (2008) Positive Treatment
Cited by 5 cases

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Holding

The court held that the independent contractor and cross-liability exclusions in the insurance policy were unambiguous and applicable, barring coverage for the plaintiff's injuries.


Headnotes

[1] An insurance policy's independent contractor exclusion is unambiguous and bars coverage for injuries arising out of operations performed by an independent contractor, eve…

[2] A caption in an insurance policy, or the failure to define a term, cannot create an ambiguity where the policy language is otherwise plain and clear.

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Facts & Procedural History

An employee of a trailer park was injured in a propane explosion while working. The trailer park had a commercial liability policy with exclusions for…

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Opinion of the Court
GERSTEN, C.J.

GERSTEN, C.J.

The Itnor Corporation (“Itnor”) and Shirley Murphy (“Murphy”) appeal a final summary judgment in favor of Markel International Insurance Company, Ltd. (“Markel”). We affirm.

While working at Itnor’s trailer park, Murphy was injured in a propane gas explosion. Itnor, meanwhile, had a commercial liability policy with Markel. The policy excluded: (a) bodily injury “arising out of operations performed for you by independent contractors” (“independent contractor exclusion”); and (b) bodily injury “arising out of actions ... initiated or caused to be brought about by any insured covered by the policy against any other insured covered by this policy” (“cross liability exclusion”).

Markel sent a reservation of rights letter and filed a declaratory action to deter mine coverage for Murphy’s lawsuit. Ultimately, the parties filed cross motions for summary judgment.

Based on the pleadings, motions, affidavits, and depositions, the trial court determined that Murphy was an independent contractor injured in the course and scope of her employment. Thus, the trial court determined Murphy was barred from coverage under the policy’s independent contractor and cross liability exclusions.

Itnor and Murphy contend that neither the independent contractor nor the cross liability exclusions are applicable for two reasons: (l) the independent contractor exclusion is ambiguous and should be interpreted against Markel; and (2) the cross liability exclusion does not apply because Murphy is not an insured manager. Markel, on the other hand, asserts that both exclusions are unambiguous and applicable.

Upon review of the record, we agree with the trial court that no genuine issue of material fact exists concerning Murphy’s status as an independent contractor injured in the course and scope of her employment. Therefore, we agree with Markel.

Courts must construe insurance contracts in accordance with their plain meaning. Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla.2005). Moreover, an insurance contract must be read as a whole. § 627.419(1), Fla. Stat. (2007). Where policy language is susceptible to more than one reasonable interpretation, it is considered ambiguous, and will be liberally construed in favor of the insured. Taurus Holdings, 913 So. 2d at 532. However, neither the caption nor a failure to define a term may be used to create an ambiguity. See Auto-Owners Ins. Co. v. Above All Roofing, LLC, 924 So. 2d 842, 847 (Fla. 2d DCA 2006); Winter Garden Ornamental Nursery, Inc. v. Cap-pleman, 201 So. 2d 479, 480 (Fla. 4th DCA 1967).

Turning first to the independent contractor exclusion, we conclude that this provision plainly and unambiguously excludes coverage. The ambiguity purportedly arises from the caption and its failure to define the term “operation.” Although the caption refers only to employees of independent contractors, the remaining language clearly includes the independent contractors. Notably, in this case, Itnor and Murphy admitted in their motions for summary judgment that Murphy was an independent contractor. Further, the failure to define the term “operation” does not create an ambiguity. The term should be given its plain and ordinary meaning. See Auto-Owners, 924 So. 2d at 847. The American Heritage Dictionary defines “operation” as “a process or series of acts involved in a particular form of work.” The American Heritage Dictionary of the English Language, Fourth Edition (2004), available at http:// dictionary.reference.com/browse/operation. Here, Murphy testified that she was readying an apartment for a tenant when she was injured. Thus, the trial court properly found that Murphy’s injury arose out of “operations” performed in the course and scope of her employment.

Turning next to the cross liability exclusion, under this type of exclusion, claims brought by one insured against another insured covered by the same policy are barred. See Underwriters at Lloyds London v. STD Enters., Inc., 395 F. Supp. 2d 1142, 1144 (M.D.Fla.2005). Further, a commercial liability policy is designed to protect the insured from claims by the public, not from individuals working for the insured. See Fla. Ins. Guar. Ass’n v. Revoredo, 698 So. 2d 890, 892 (Fla. 3d DCA 1997). Here, Itnor is the named insured. The policy provides that “any person ... acting as your real estate manager” is also an insured. Murphy acted as the real estate manager of Itnor’s trailer park. Therefore, the cross liability exclusion barred coverage for Murphy’s lawsuit against It-nor. Because coverage is excluded under Market’s policy, we affirm the final summary judgment entered below.

Affirmed.


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Cited By

  • …this were an issue that could be properly raised in the majority opinion, the courts have consistently held that a caption in an insurance policy may not be used to create an ambiguity in the policy provisions. Itnor Corp. v. Market Int’l Ins. Co., 981 So. 2d 661 (Fla. 3d DCA 2008); Winter Garden Ornamental Nursery, Inc. v. Cappleman, 201 So. 2d 479 (Fla. 4th DCA 1967). . "[Florida Statute section] 627.736(6)(c) has long been construed to empower insurers, upon good cause shown, to petition a court for a bi…
  • Amado Trinidad v. Fla. Peninsula Ins. Co., 99 So. 3d 502 (Fla. 3d DCA 2011)
    …. Transp. Ins. Co., 29 So. 3d 1000, 1005 (Fla.2010). The policy’s language governs the outcome of this case, and Florida law mandates that we construe insurance contracts in accordance with their plain meaning. Itnor Corp. v. Markel Int’l Ins. Co., 981 So. 2d 661, 663 (Fla. 3d DCA 2008). Thus, “[wjhere the language of an insurance policy is clear and unambiguous, it must be construed to mean what it says and nothing more.” Telemundo Television Studios, LLC v. Aequicap Ins. Co., 38 So. 3d 807, 809 (Fla. 3d DC…
  • …ent Contractor, Black's Law Dictionary (8th ed. 2004). Therefore, Mr. Delaney-Ogorek was acting as an an employee of an independent contractor that was performing work for Defendants when he tragically died. See Itnor Corp. v. Markel Int’l Ins. Co., 981 So. 2d 661, 663 (Fla. 3rd DCA 2008) (finding that an independent contractor was performing work on behalf of the policyholder when the independent contractor “was readying an apartment for a tenant when she was injured”). The Court is unpersuaded by Defendant…

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