Third District Court of Appeal
State of Florida
Opinion filed December 8, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-1952
Lower Tribunal No. 18-13137
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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.
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’
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roof. The insureds presented a claim for damages under an operative
homeowners’ policy to the property resulting from the shed installation, which
People’s Trust paid.
People’s Trust, now as subrogee of the insureds, sued Progressive for
breach of contract and declaratory relief regarding Progressive’s purported
improper denial of coverage and refusal to provide a legal defense.1
People’s Trust and Progressive filed cross-motions for summary judgment.
Progressive claimed it properly denied coverage based on an exclusion or
exception contained in King Service Crane’s automobile liability insurance
policy for damages resulting from the operation of the crane mounted on the
Ford F-750 Super Duty truck. People’s Trust sought a determination that the
policy exclusion either did not apply or was ambiguous and therefore should
be construed against Progressive and in favor of coverage. The trial court
granted summary judgment in favor of Progressive, finding that Progressive
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.
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properly applied the policy exclusion and had no duty to defend or indemnify
King Service Crane for the loss. This resulted in the final order on appeal.
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.”).
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c. Any vehicle that travels on crawler treads, or that does not
require licensing in the state in which you live or your business
is licensed;
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,
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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
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the facts of the case, the trial judge correctly granted summary judgment in
favor of Progressive.
The truck, “used primarily to provide mobility to a mounted crane,”
would be excluded “mobile equipment” under the relevant definition, but for
(Fla. 2d DCA 2006)) (applying Florida law). As the Supreme Court of Florida
explained:
Where the language in an insurance contract is plain and
unambiguous, a court must interpret the policy in accordance
with the plain meaning so as to give effect to the policy as written.
See State Farm Mut. Auto. Ins. Co. v. Menendez,
70 So. 3d 566,
569–70 (Fla. 2011). In construing insurance contracts, “courts
should read each policy as a whole, endeavoring to give every
provision its full meaning and operative effect.” U.S. Fire Ins. Co.
v. J.S.U.B., Inc.,
979 So. 2d 871, 877 (Fla. 2007) (quoting
Anderson,
756 So. 2d at 34); see also Swire Pac. Holdings v.
Zurich Ins. Co.,
845 So. 2d 161, 166 (Fla. 2003) (same). Courts
should “avoid simply concentrating on certain limited provisions
to the exclusion of the totality of others.”
Id. at 165. However,
“[p]olicy language is considered to be ambiguous ... if the
language ‘is susceptible to more than one reasonable
interpretation, one providing coverage and the other limiting
coverage.’” Menendez,
70 So. 3d at 570 (quoting Travelers
Indem. Co. v. PCR Inc.,
889 So. 2d 779, 785 (Fla. 2004) (quoting
Swire,
845 So. 2d at 165)).
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.”
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the fact that it is subject to a compulsory or financial responsibility law. The
contract contemplates this exact situation. Next, we look to the “13.b.
exclusion” which directs us to exclude any claim for property damage “arising
out of 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.” There is no dispute that the
crane was in use at the time of the incident and that the property damage
arose out of the operation of the crane. Where, as here, the record clearly
established that the damage at issue was caused by the mounted crane, in
operational use, on a vehicle that would otherwise qualify as mobile
equipment, the trial court correctly granted summary judgment in favor of
Progressive on the policy exclusion and properly entered final judgment in
accord with such findings.
Affirmed.
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