Evanston Insurance Co. v. Budget Group, Inc. , 199 F. App'x 867 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
_______________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCT 5, 2006
No. 06-12928
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 04-00400-CV-4-SPM-AK
EVANSTON INSURANCE COMPANY,
an Illinois Corporation,
Plaintiff-Appellant,
versus
BUDGET GROUP INC.,
a Florida Corporation,
JAYNE POTTS, as Personal Representative of the
Estate of William E. Potts, Mary Potts and Anna Potts,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 5, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
This is an appeal from the district court’s order on cross-motions for
summary judgment wherein the district court granted summary judgment in favor
of the appellees and against the appellant, Evanston Insurance Company
(“Evanston”), in a declaratory judgment action brought by Evanston to determine
insurance coverage.
The issue presented in the district court and on appeal is whether the
commercial general liability policy that Evanston issued to the Budget Group, Inc.,
(“Budget”) provides coverage for a wrongful death suit against Budget, by Jane
Potts (“Potts”), as personal representative of the estates of Dr. William E. Potts,
Mary Potts and Anna Potts.1
In the underlying action, Jane Potts, as personal representative of the estates
of Dr. William E. Potts, Mary Potts and Anna Potts sued various defendants for
negligence which proximately caused the death of Dr. Potts and his daughters.
Evanston issued a commercial general liability policy to Budget. The policy
contained two exclusions – one is a standard auto-use exclusion. The other one is
a professional liability exclusion. In its summary judgment order, the district court
determined that neither exclusion applied to exclude coverage for Potts’s loss.
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Dr. Potts and his daughters were tragically killed in an automobile accident.
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We review de novo a district court’s grant of summary judgment. Jackson
v. Bellsouth Telecomms., 372 F.3d 1250, 1279 (11th Cir. 2004). We will affirm
the summary judgment entered for Potts if there is no genuine issue of material
fact and Potts is entitled to summary judgment as a matter of law. See Fed. R. Civ.
P. 56(c). In this case, the parties stipulate that there are no genuine issues of
material fact.
The law in Florida is that insurance coverage must be construed broadly and
its exclusions narrowly. Demshar v. AAACon Auto Transport, Inc., 337 So.2d
963, 965 (Fla. 1976). Moreover, insurance contracts are to be construed most
strongly against the insurer and liberally in favor of the insured. Hartnett v.
Southern Ins. Co., 181 So.2d 524, 528 (Fla. 1965).
Taking the auto exclusion first, we conclude that it only applies when the
auto is owned or operated by or rented or loaned to any insured. First, Budget did
not own the 15-passenger van at the time of the accident. It is undisputed that the
van was owned by a separate company called P.C. Rental, Inc. Second, the van
was not operated by Budget. It was being operated by Dr. William E. Potts at the
time of the accident. Third, the van was not rented to Budget. The van was rented
to Dr. William E. Potts. Finally, the van was not loaned to Budget or to any one at
all at the time of the accident. Given the qualifiers included in the plain language
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of the auto exclusion, we agree with the district court’s finding that the exclusion
cannot be applied to bar coverage for Potts’s claim.
With respect to the professional liability exclusion, the exclusion precludes
claims “arising out of the rendering of or for failure to render any professional
services and the conduct of the insured’s business.” The term “professional”
refers to persons who belong to a learned profession or whose occupations require
a high level of training and proficiency. See Aerothrust Corp. v. Granada Ins.
Co., 904 So.2d 470, 472 (Fla. Dist. Ct. App. 2005). We agree with the district
court’s finding that renting vehicles to the public is not a professional service.
The cases cited by Evanston in its brief demonstrate that the exclusion has been
applied to attorneys, psychiatrists, and medical technicians, but there are no cases
applying the provision in the context of an auto-rental like we have in the present
case.
For the foregoing reasons, we affirm the district court’s grant of Potts’s
motion for summary judgment and the denial of Evanston’s motion for summary
judgment.
AFFIRMED.
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