Geico Indemnity Company v. Joe Dan Nelson, Jr. , 448 F. App'x 925 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11341 ELEVENTH CIRCUIT
DECEMBER 1, 2011
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D. C. Docket No. 3:10-cv-00163-RS-EMT
GEICO INDEMNITY COMPANY,
Plaintiff - Appellant,
versus
JOE DAN NELSON, JR.,
TIM WARD,
et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 1, 2011)
Before HULL, PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Geico Indemnity Company (“Geico”) appeals the district court’s grant of
summary judgment to Joe Dan Nelson, Jr., Tim Ward, Sarah Ward, and Mary
French (“Defendants”). Nelson was driving French’s car when it was involved in
a crash. The Wards were also occupants in the car, and Tim Ward suffered serious
injuries. Tim Ward sued Nelson, who was insured by Geico. Geico then filed this
case, seeking a declaratory judgment that Nelson’s insurance policy with Geico
did not cover French’s vehicle or injuries to Tim Ward. The only issues in the
case are two legal questions: (1) whether French’s vehicle was provided for
Nelson’s regular use and thereby excluded from Nelson’s policy; and (2) whether
Nelson resided in the same household as Tim Ward, thereby excluding him from
recovering under Nelson’s policy. We review a grant of summary judgment de
novo. Clemons v. Dougherty Cnty., 684 F.2d 1365, 1368 (11th Cir. 1982).
Neither party disputes that the insurance contract is governed by Florida
law. In Florida, terms in insurance policies that tend to limit or avoid liability are
“to be construed most liberally in favor of the insured and strictly against the
insurer.” U.S. Sugar Corp. v. Nationwide Mut. Ins. Co., 475 So. 2d 1350, 1352
(Fla. Dist. Ct. App. 1985).
I. “Non-owned auto” Provision
Nelson’s Geico policy states that it will cover injuries “arising out of the
ownership, maintenance or use of the owned auto or a non-owned auto.” The
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policy defines “non-owned auto” in relevant part as a “private passenger, farm or
utility auto or trailer not owned by, or furnished for the regular use of either you or
a relative, other than a temporary substitute auto.”
Neither party contends that Nelson owned French’s car. The question is
whether French “furnished [her car] for the regular use” of Nelson. If so, injuries
arising from Nelson’s use of the car will not be covered by Geico’s policy. In
Florida, when used in an automobile insurance policy, the phrase “furnished for
regular use” reasonably suggests “principal use.” U.S. Sugar, 475 So. 2d at 1352.
That is, the Geico policy will provide coverage if Nelson was “engaged in
infrequent or casual use” of French’s vehicle. Id.There is substantial evidence that Nelson’s use of French’s car was
infrequent or casual. French testified that she was “very touchy” about other
people using her car because it had been completely paid for, and she also said that
Nelson never drove the vehicle to work, never drove it to visit his parents, and
never drove it on his frequent hunting trips. Nelson testified that he did not
possess a key to French’s car and that he had to seek her permission to drive it,
with such permission sometimes being withheld. He drove it up to eight times a
month with her in the car when they would go out to dinner. The only times he
drove it without her being in the vehicle were the two or three short trips a month
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to the store when his own vehicle was blocked in the driveway. Nelson did not
use French’s vehicle in any regular or continual way, nor did he treat the car as
one he could use whenever he wanted.
With the holding of United States Sugar on point, we need not accept
Geico’s invitation to interpret Nelson’s insurance policy by analogizing it to cases
dealing with policies that use broader language when defining a “non-owned
auto.” See Allstate Prop. & Cas. Ins. Co. v. Weny, No. 3:07-cv-1185-J16-HTS,
2009 WL 88576, at *3 (M.D. Fla. Jan. 13, 2009) (analyzing a policy defining a
non-owned auto as one that is merely made “available or furnished for the regular
use” of the insured); Valiant Ins. Co. v. Evonosky, 864 F. Supp. 1189, 1191 (M.D.
Fla. 1994) (“available for the regular use”); Lumbermens Mut. Cas. Co. v. Lesly,
433 So. 2d 1299, 1300 (Fla. Dist. Ct. App. 1983) (“furnished or available for your
regular use”).
Geico also argues that Nelson and French were in a “committed
relationship,” and thus there was an expectation that they could share each other’s
property. See Fidelity & Cas. Co. of N.Y. v. Fonseca, 358 So. 2d 569, 575 (Fla.
Dist. Ct. App. 1978) (“[H]usbands and wives who reside in the same household
potentially have their spouse’s vehicles available for use on a regular basis.”).
However, Nelson and French were not married. And as Geico concedes, the
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Fonseca court did not even reach the issue of what was necessary to show that a
vehicle had been “furnished for the regular use” of the insured. Id. at 574.1 Also,
Nelson’s limited use of French’s car would dispel any assumption that her car was
“potentially . . . available for [her boyfriend’s] use on a regular basis.” Id.On the undisputed facts, Nelson’s use of French’s car was “infrequent” or
“casual,” and the district court properly granted summary judgment to Defendants
on this issue.
II. “Insured’s family” Provision
Nelson’s policy also states that it will “not cover any bodily injury to any
insured or any member of an insured’s family residing in the insured’s household.”
Geico argues that Nelson and Tim Ward are “family” and lived in the same
“household” at the time of the accident, which means the policy would not cover
Tim Ward’s injuries.
However, as noted by the district court, the flaw in Geico’s argument is as
follows. The first question is whether Tim Ward is actually a member of Nelson’s
family. The policy does not define “family.” Tim Ward is Nelson’s step-father,
1
In Fonseca, the wife was driving the husband’s car, and the issue was coverage
under the wife’s policy pursuant to the nonowned car provision. 358 So. 2d at 570-71. The court
held that the husband’s car was not a non-owned car because that provision was defined to
exclude a car owned by the “named insured,” and the husband was defined in the policy as a
named insured. Id. at 574.
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and they are not related by blood. Florida courts seem to construe family
exclusion policies to include all relatives who have “become integrated into the
insured’s household.” Larsen v. State Farm Mut. Auto. Ins. Co., 485 So. 2d 458,
459 (Fla. Dist. Ct. App. 1986). Under this definition, Florida courts have found
that a “family” would include a niece living in the same house as her aunt and
uncle, id., and two sisters living with each other in the same house, Reid v. State
Farm Fire & Cas. Co., 352 So. 2d 1172, 1172-73 (Fla. 1977).
Accordingly, Florida courts’ analysis of “family” seems to overlap heavily
with the analysis they would use to answer our second question: were Nelson and
Tim Ward actually in the same “household” at the time of the accident?
“Household” is not defined in the policy. To answer this question, Florida courts
look to these factors: “(1) close ties of kinship, (2) fixed dwelling unit, and (3)
enjoyment of all the living facilities.” Dwelle v. State Farm Mut. Auto. Ins. Co.,
839 So. 2d 897, 899 (Fla. Dist. Ct. App. 2003).
At the time of the accident, Nelson had not lived at the Wards’ house for at
least six months, did not have a key to the house, and his bedroom had been
converted into a study. At most, he spent only a few nights at the Wards’ house
after he moved in with French. If he arrived when no one was home, he had to
wait for Tim or Sarah Ward to arrive and let him in. All of his belongings were at
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French’s house, except perhaps for some of his hunting gear that remained at the
Wards’ house. While he did receive his Geico insurance bill at the Wards’ mailing
address, most of his mail was sent to French’s house. Given Nelson’s lack of
access to the Wards’ house and its facilities, the district court properly concluded
from the undisputed facts that Nelson was not a member of Tim Ward’s
“household” at the time of the accident. Accordingly, the family exclusion portion
of Nelson’s policy does not apply, and the district court properly granted summary
judgment to Defendants on this count.
AFFIRMED.2
2
All parties’ requests for oral argument are DENIED.
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