PEOPLE'S TRUST INSURANCE COMPANY, ETC.,

v.

PROGRESSIVE EXPRESS INSURANCE COMPANY,

Third District Court of Appeal State of Florida

Opinion filed December⁸, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D19-1952 Lower Tribunal No. 18-13137 ________________

People's Trust Insurance Company, etc., Appellant,

vs.

Progressive Express Insurance Company, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces, Judge.

Beck Law P.A., and Joshua S. Beck (Boca Raton); Brett R. Frankel, Jonathan Sabghir, Robert B. Gertzman and Mark T. Babcock (Deerfield Beach), for appellant.

Kelley Kronenberg, and Jack T. Frost and Louis Reinstein (Fort Lauderdale), for appellee.

Before SCALES, LINDSEY and BOKOR, JJ.

BOKOR, J.

2

In this appeal, we examine a commercial automobile insurance policy issued by Appellee Progressive Express Insurance Company (“Progressive”) to determine whether, as a threshold matter, Progressive properly denied coverage for a claim involving a Ford F-750 Super Duty truck. Specifically, we examine whether this otherwise “insured auto” was acting as “mobile equipment” such that the insurer properly denied coverage under a relevant policy exclusion. The trial court grappled with this question at summary judgment and determined that the policy excluded coverage and a duty to defend for bodily injury or property damage resulting from the use and operation of a crane permanently mounted on the otherwise-covered truck. For the reasons explained herein, we conclude that the trial court correctly applied the policy provisions to the facts of the case and properly determined that the policy provides no coverage under these circumstances.

BACKGROUND

Yudel Plasencia and Yilian Perez, the insureds of Appellant People’s Trust Insurance Company (“People’s Trust”), contracted with Suncrest Shed for the installation of a shed at the insureds’ property. Suncrest Shed contracted with King Service Crane to deliver and install the shed. During the installation, the insureds claimed, King Service Crane improperly operated the crane and caused the shed to fall and damage the insureds’

1 Initially, People’s Trust filed a subrogation lawsuit against Suncrest Shed and King Service Crane, seeking reimbursement of the damages paid to People’s Trust’s insureds. Progressive, the insurer of the Ford F-750 Super Duty truck owned by King Service Crane, denied coverage and refused to provide a legal defense. People’s Trust and King Service Crane then agreed to a consent judgment of $60,200 in favor of People’s Trust and against King Service Crane. As part of the settlement and release, King Service Crane assigned its rights, claims, and benefits under the Progressive policy to People’s Trust.

ANALYSIS

We apply a de novo standard of review to questions of insurance policy construction and interpretation.2 We start by noting that the policy leaves no doubt that King Service Crane’s Ford F-750 Super Duty truck with the crane attached is an “insured auto.” The crux of the lawsuit, and this appeal, is whether the policy excludes coverage based on the operation of the crane mounted onto the truck. The parties concede that a mobile equipment exclusion in the policy would exempt coverage if it applied. The policy defines “mobile equipment” as follows:

8.

“Mobile equipment” means any of the following types of land vehicles including, but not limited to, any attached machinery or equipment:

a. Bulldozers, farm implements and machinery, forklifts and other vehicles designed for use principally off public roads;

b. Vehicles you use solely on premises you own or rent and on accesses to public roads from these premises, unless specifically described on the declarations page and not defined as mobile equipment under other parts of this definition;

2 See Arguelles v. Citizens Prop. Ins. Corp., 278 So. 3d 108, 111 (Fla. 3d DCA 2019) (“Insurance policy construction is a question of law subject to de novo review.”); see also Fayad v. Clarendon Nat. Ins. Co., 899 So. 2d 1082, 1085 (Fla. 2005) (citing Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp., 636 So. 2d 700, 701 (Fla. 1993) (“The issue of whether an exclusionary clause precludes coverage for damages is a question of law.”).

d. Vehicles, whether self-propelled or not, used primarily to provide mobility to permanently attached:

(i) Power cranes, shovels, loaders, diggers or drills

. . . .

However, mobile equipment does not include land vehicles that are subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state or province where it is licensed or principally garaged. Land vehicles subject to a compulsory or financial responsibility law or other motor vehicle law are considered autos.

(Emphasis in original). The Ford F-750 Super Duty truck is a “land vehicle[] subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state or province where it is licensed or principally garaged.” Accordingly, the truck does not constitute excluded mobile equipment under that definition. However, the inquiry does not end there. Progressive, and the trial court, relied on a policy exclusion based on the fact that the damage at issue was caused by the operation of the mobile mounted crane. People’s Trust asks us to ignore the plain language of the relevant exclusion, the “13.b. exclusion,” which states:

EXCLUSIONS

-

PLEASE

READ

THE

FOLLOWING

EXCLUSIONS CAREFULLY. IF AN EXCLUSION APPLIES,

6

COVERAGE FOR AN ACCIDENT OR LOSS WILL NOT BE

AFFORDED UNDER THIS PART I - LIABILITY TO OTHERS.

Coverage under this Part I, including our duty to defend, does not apply to:

. . . .

13. Operations

Bodily injury, property damage, or covered pollution cost or expense arising out of the operation of:

a. any equipment listed in Paragraphs b. and c. of the definition of auto; or b. machinery or equipment that is on, attached to, or part of, a land vehicle that would qualify under the definition of mobile equipment if it were not subject to a compulsory or financial responsibility law where it is licensed or principally garaged.

(Emphasis in original). We construe clear and unambiguous policy language “in accordance with ‘the plain language of the polic[y] as bargained for by the parties.’” Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 33 (Fla. 2000) (quoting Prudential Property & Cas. Ins. Co. v. Swindal, 622 So. 2d 467, 470 (Fla. 1993).3 When applying the plain language of this “13.b. exclusion” to

3 To accept People’s Trust’s interpretation would render 13.b. mere surplusage and would lead to absurd results whereby a clear and unambiguous commercial auto policy would be construed to cover damages caused by mobile equipment. We must give effect to every provision, and “avoid treating a word [or provision] as mere surplusage ‘if any meaning, reasonable and consistent with other parts, can be given to it.’” Equity Lifestyle Props., Inc. v. Florida Mowing and Landscape Serv., Inc., 556 F. 3d 1232, 1242 (11th Cir. 2009) (quoting Roberts v. Sarros, 920 So. 2d 193, 196

Washington Nat. Ins. Corp. v. Ruderman, 117 So. 3d 943, 948 (Fla. 2013).

People’s Trust invites us to manufacture an ambiguity where none exists. We find no ambiguity and give effect to each provision considering the policy as a whole. The underlying commercial automobile policy which excludes mobile equipment, whether under the definition of mobile equipment, or under the “13.b. exclusion” for the operation of “machinery or equipment that is on, attached to, or part of, a land vehicle that would qualify under the definition of mobile equipment if it were not subject to a compulsory or financial responsibility law where it is licensed or principally garaged.”

Affirmed.