Salvatore Miglino v. Universal Property & Casualty Insurance Company and Harvey Ira Stein , 2015 Fla. App. LEXIS 12470 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SALVATORE MIGLINO,
Appellant,
v.
UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY and
HARVEY IRA STEIN,
Appellees.
No. 4D13-4161
[August 19, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John B. Bowman, Judge; L.T. Case No. 12-13010 (09).
Joseph S. Kashi of Sperry & Kashi, P.A., Plantation, for appellant.
Sara M. Sandler and John P. Joy of Walton Lantaff Schroeder &
Carson LLP, Fort Lauderdale, for appellee Universal Property & Casualty
Insurance Company.
CIKLIN, C.J.
Salvatore Miglino (“Miglino”) timely appeals an order granting
summary final judgment in favor of Universal Property & Casualty
Insurance Company (“Universal”) and determining that, pursuant to an
exclusion in a homeowner’s insurance policy, Universal had no duty to
indemnify or defend its insured in a separate personal injury action
arising from a shooting. Finding no error, we affirm, and we write to
address an issue of first impression in Florida regarding the subject
policy exclusion.
The insured is Harvey Stein (“the insured”). The insured lent a gun to
his sister, Cheryl Hepner (“the sister”), and the sister then used the gun
to shoot her son-in-law, Miglino, outside of her home. Miglino and the
sister’s daughter were in the midst of divorce proceedings at the time.
Miglino brought a personal injury action against the insured and the
sister, alleging that the sister intentionally shot him and asserting a
negligent entrustment claim against the insured. Universal initially
defended the insured in Miglino’s action under a reservation of rights,1
but then filed an action for a judgment declaring that it had no duty of
defense or indemnity with regard to the personal injury action under
“exclusion k.” of the insured’s homeowner’s insurance policy.
The insurance policy states that, in the event of a suit brought against
the insured because of ‘“bodily injury’ . . . caused by an ‘occurrence,’”
Universal will pay for the insured’s defense and the amount of damages
for which the insured is liable. Exclusion k. of the policy excludes
payments to others for damages “[a]rising out of sexual molestation,
corporal punishment or physical or mental abuse.” The policy does not
define “physical abuse.”
Universal moved for summary judgment, arguing that, pursuant to
exclusion k., there was no coverage under the policy for the intentional
shooting of Miglino. The trial court agreed and granted the motion.
On appeal, Miglino argues that the trial court erred in determining
that exclusion k. applies to exclude coverage because the shooting does
not fit within the dictionary or case law definitions of physical abuse, and
therefore, the insurance policy exclusion does not apply to the shooting.
He specifically likens the definition of physical and mental abuse to
torture or actions meant to humiliate or demean. We must disagree, as
the plain meaning of the words “physical abuse” includes an instance
such as the subject shooting.
We review the order granting summary judgment de novo. Volusia
Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)
(citation omitted).
With regard to insurance contract interpretation, the Florida Supreme
Court has 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
1 When an insurance company disputes coverage for one or more claims under
an insurance policy, it may choose to provide a defense for an insured under a
“reservation of rights.” See generally Jim Black & Assocs., Inc. v. Transcon. Ins.
Co., 932 So. 2d 516, 517-18 (Fla. 2d DCA 2006). Where it is ultimately
determined that the insurance company had no duty to defend, under a proper
reservation of rights, the insurance company may be entitled to reimbursement
for its defense expenditures. See id. at 518.
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policy as written. In construing insurance contracts, courts
should read each policy as a whole, endeavoring to give every
provision its full meaning and operative effect. Courts
should avoid simply concentrating on certain limited
provisions to the exclusion of the totality of others. However,
policy 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.
Wash. Nat’l Ins. Corp. v. Ruderman, 117 So. 3d 943, 948 (Fla. 2013)
(internal citations and quotation marks omitted).
The lack of a definition of a term in a policy does not render it
ambiguous or in need of interpretation by the courts, but rather such
“terms must be given their every day meaning and should be read with
regards to ordinary people’s skill and experience.” Harrington v. Citizens
Prop. Ins. Corp., 54 So. 3d 999, 1003 (Fla. 4th DCA 2010) (citation
omitted). “Florida courts will often use legal and non-legal dictionaries to
ascertain the plain meaning of words that appear in insurance policies.”
Id. (citation omitted).
Black’s Law Dictionary defines “physical,” in pertinent part, as
“[r]elating or pertaining to the body, as distinguished from the mind or
soul or the emotions.” BLACK’S LAW DICTIONARY 1147 (6th ed. 1990). In
pertinent part, Black’s defines “abuse” as “[p]hysical or mental
maltreatment, often resulting in mental, emotional, sexual, or physical
injury,” and “[t]o injure (a person) physically or mentally.” BLACK’S LAW
DICTIONARY 10 (8th ed. 2004). Similarly, a non-legal dictionary defines
abuse as “[t]o hurt or injure by maltreatment.” THE AMERICAN HERITAGE
DESK DICTIONARY 5 (1981) (emphasis added).
The plain meaning of “physical abuse” encompasses the intentional
shooting of Miglino by the sister. Such an act clearly constitutes
“physical . . . maltreatment,” “physical injury,” and “hurt or injur[y] by
maltreatment” as described in the definitions used in deciding this issue.
Miglino argues that the exclusion does not apply because there was
no torture, torment, humiliation, or degradation present in the sister’s
act of shooting him. He cites case law from other jurisdictions
interpreting the same or a highly similar exclusion. See, e.g., Merrimack
Mut. Fire Ins. Co. v. Ramsey, 982 A.2d 195, 197-98 (Conn. App. Ct. 2009)
(finding that “[t]he stabbing of the defendant [twenty-four times] clearly
constituted physical abuse within the language of the policy”); Auto-
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Owners Ins. Co. v. Am. Cent. Ins. Co., 739 So. 2d 1078, 1081 (Ala. 1999)
(holding that acts of fraternity hazing, such as paddling, forcing
consumption of foods, kicking, pushing, and hitting, “clearly constituted
physical and mental abuse”). Although the facts of these cases included
tormenting or humiliating acts, none of the courts held that these
elements were necessary for the acts in question to rise to the level of
physical abuse or for the policy exclusion to apply. Furthermore, we
have found no definitions that include the words torture, torment,
humiliate, or any of the other similar words that Miglino insists are a
part of “physical abuse.” Common sense and common meaning dictate
otherwise as well.
Consequently, we affirm. We leave for another day, however, the
question of which other types of occurrences may reasonably be excluded
within the framework of the policy exclusion.
Affirmed.
CONNER, J., and BOORAS, TED, Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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