Officer Jose R. Estevez, individually vs Northern Assurance Company of America , 428 F. App'x 966 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14647
JUNE 7, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D. C. Docket No. 1:09-cv-23234-WMH
OFFICER JOSE R. ESTEVEZ,
individually,
Plaintiff-Appellant,
versus
NORTHERN ASSURANCE COMPANY OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 7, 2011)
Before EDMONDSON, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
City of Miami Police Officer Jose R. Estevez appeals the district court’s
denial of his motion for judgment on the pleadings, or alternatively, motion for
summary judgment in an indemnity action against Northern Assurance Company
of America (the Insurer). This action arises out of a collision in Biscayne Bay
involving a City of Miami (the City) police boat operated by Officer Estevez and a
vessel owned by Contender Fishing Team, LLC (Contender). Richard S. Sol, a
passenger on the Contender vessel, filed a complaint against the City and others,
including Officer Estevez seeking damages for his alleged bodily injuries
sustained during the collision. The Insurer refused to defend or indemnify Officer
Estevez in Sol’s negligence action.
The primary issue on appeal is whether the district court erred when it found
Officer Estevez was not covered under the protection and indemnity coverage
section of the City’s Marina Operators Legal Liability Policy (the Policy).1
Officer Estevez contends that a plain reading of the protection and indemnity
section of the Policy clearly and unambiguously requires the Insurer to defend and
indemnify him for Sol’s personal injury claim because (1) Estevez is an
1
Because we conclude that the Policy in question is unambiguous, we need not reach the
issue of whether Officer Estevez automatically wins under the Florida Rule that ambiguous
insurance contracts are construed against the insurer. Furthermore, Officer Estevez’s argument
that extrinsic evidence is not admissible to resolve ambiguities in an insurance contract is
without merit. See Reinman, Inc. v. Preferred Mut. Ins. Co., 513 So. 2d 788 (Fla. 3d DCA 1987)
(holding that “extrinsic evidence may be introduced to explain [an] ambiguity.”).
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“employee” of the City, (2) he operated a “watercraft,” and (3) the operation of the
City vessel was “in conjunction with normal business operations.” After careful
review, we affirm the district court.2
We review a district court’s grant of summary judgment de novo. Huff v.
Dekalb County, Ga., 516 F.3d 1273, 1277 (11th Cir. 2008). The interpretation of
disputed provisions in an insurance contract is a question of law reviewed de
novo. James River Ins. Co. V. Ground Down Eng’g, Inc. 540 F.3d 1270, 1274
(11th Cir. 2008).
“[I]n the absence of a specific and controlling rule, the interpretation or
construction of a marine insurance contract is to be determined by state law.” See
All Underwriters v. Weisberg, 222 F.3d 1309, 1313 (11th Cir. 2000). Under
Florida law, “[t]he mere failure to provide a definition for a term involving
coverage does not necessarily render the term ambiguous.” Jefferson Ins. Co. of
New York v. Sea World of Florida, Inc., 586 So. 2d 95, 97 (Fla. 5th DCA 1991).
Further, “[a]n isolated provision of an insurance policy cannot be considered as
determinative on the issue of coverage[;] [r]ather, the ‘insurance contract shall be
2
A panel of this Court has recently decided the issue of whether the protection and
indemnity section contained within the Policy provides coverage for the City. See Contender
Fishing Team, LLC v. City of Miami, No. 10-10454, 2010 WL 5095873 (11th Cir. Dec. 15,
2010). The opinion in Contender holding that the Policy did not provide indemnity coverage for
the accident in question is consistent with our decision in this case.
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construed according to the entirety of its terms and conditions as set forth in the
policy and as amplified, extended, or modified by any application therefore or any
rider or endorsement thereto.’” AAA Life Insurance Co. v. Nicolas, 603 So. 2d
622, 623 (Fla. 3d DCA 1992).
Estevez first argues the phrase “normal business operations,” which is not
defined in the policy, includes any business the City regularly engages in. Under
Florida rules of contract construction, Officer Estevez’s reading of this section of
the Policy is in error. When we read the entire policy, as amplified by the
application,3 we conclude that the phrase “normal business operations” clearly
means “marina operations” and not other operations in which the City may happen
to engage. The Policy itself is called “Marina Operators Legal Liability Policy,”
and the introduction to the Policy states that the Policy is one for “marina owners”
and covers “marina operations.” Moreover, the City listed “municipal marinas and
mooring facility” on its renewal application. Under the principle that specific
phrases (marina operations) govern general phrases (business operations), it is
clear the phrase “normal business operations” is limited to normal marina
operations. See Pottsburg Utilities, Inc. v. Gaugharty, 309 So. 2d 199, 201
3
Although Officer Estevez argues the application is separate from the insurance contract,
it is clear under Florida law that the document is part of the contract. See Fla. Stat. § 627.419(1);
AAA Life Insurance, 603 So. 2d at 623.
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(Fla. 1st DCA 1975) (stating “where both general and specific language [is] used
in a contract, the specific language will govern where there is a conflict.”)
Officer Estevez’s claim that the “watercraft” referred to in the protection
and indemnity section encompasses all watercraft owned or operated by the City is
equally without merit. First, the declarations pages show that “5 Work Boats” are
included under this provision. Further, the City knew that only listed vessels were
included in the Policy, as evidenced by its request to add an additional vessel on
its most recent renewal. Lastly, the City chose which subsections of protection
and indemnity to include in its policy. It could have chosen to cover “other owned
boats,” or “rental boats,” but instead, the City chose only the “work boats” and
“marina operators” subsections.
Accordingly, we affirm the district court’s denial of Officer Estevez’s
motion for judgment on the pleadings, or alternatively, motion for summary
judgment.
AFFIRMED.
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