Southern-Owners Insurance Co. v. Easdon Rhodes & Associates LLC

Case: 14-15386 Date Filed: 09/29/2017 Page: 1 of 21
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15386
________________________
D.C. Docket No. 3:12-cv-00601-RV-EMT
SOUTHERN-OWNERS INSURANCE COMPANY,
Plaintiff - Counter Defendant - Appellee,
versus
EASDON RHODES & ASSOCIATES LLC, et al.,
Defendants - Counter Claimants,
LINNIE D. RHODES,
Defendant,
DAVID W. MOORE, DENISE MOORE,
Defendants - Counter Claimants - Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 29, 2017)
Case: 14-15386 Date Filed: 09/29/2017 Page: 2 of 21
Before TJOFLAT and ROSENBAUM, Circuit Judges, and GOLDBERG, ∗ Judge.
TJOFLAT, Circuit Judge:
This case arises from a dispute over the scope of the insurance coverage
provided by a standard form Hired Auto and Non-Owned Auto Liability
Endorsement to a corporate general liability insurance policy (the “Endorsement”)
issued by Southern-Owners Insurance Company (“Southern-Owners”) to Easdon
Rhodes & Associates, LLC (“Easdon Rhodes”). Following an auto accident
involving one of its members, Joshua Rhodes, Easdon Rhodes was named as one
of several defendants in a state court negligence action filed by David Moore, who
suffered serious injuries in the crash.1 Southern-Owners agreed to defend the suit
in state court but reserved its rights to deny coverage under the terms of the
Endorsement. Subsequently, Southern-Owners filed an action in the United States
District Court for the Northern District of Florida seeking a declaratory judgment
absolving it of the duty to indemnify or defend Easdon Rhodes, or the other
defendants, against Moore’s negligence suit. After Southern-Owners moved for
summary judgment, the District Court held that the vehicle driven by Joshua
∗
Honorable Richard W. Goldberg, Senior Judge for the U.S. Court of International
Trade, sitting by designation.
1
David Moore’s wife, Denise Moore, also brought a loss of consortium claim based on
the injuries suffered by her husband. Because her cause of action is entirely derivative of her
husband’s negligence claim, we will refer to David Moore as the sole plaintiff in the underlying
state court action. See Gates v. Foley, 247 So. 2d 40, 45 (Fla. 1971) (explaining that loss of
consortium “is a derivative right”). Further, for ease of reference, we treat Moore as the only
appellant presently before us.
2
Case: 14-15386 Date Filed: 09/29/2017 Page: 3 of 21
Rhodes did not qualify for coverage under the terms of the Endorsement, and, even
if the vehicle had qualified, the existence of a separate insurance policy also
covering the accident triggered the Endorsement’s exclusion clause absolving
Southern-Owners of its duties under the policy. Easdon Rhodes appealed, arguing
the vehicle driven by Joshua Rhodes qualified for coverage and that the
Endorsement’s exclusion clause was ambiguous and could not provide Southern-
Owners with a basis to deny coverage for the accident under Florida law. With the
benefit of oral argument, and after a searching review of the parties’ briefs and the
record, we affirm the District Court’s judgment.
I.
Joshua Rhodes and Mark Easdon formed Easdon Rhodes, a limited liability
company, to provide a variety of maintenance- and construction-related services.
Shortly after formation, the company purchased a corporate general liability
insurance policy from Southern-Owners. Automobiles were specifically excluded
from coverage under the original policy, but Easdon Rhodes purchased an
Endorsement which expanded coverage to include certain categories of
automobiles. The text of the Endorsement included an exclusion clause explaining
coverage was only provided under the provision if “you do not have any other
insurance available to you which affords the same or similar coverage.” The
3
Case: 14-15386 Date Filed: 09/29/2017 Page: 4 of 21
policy limit for bodily injury and property damage claims covered by the
Endorsement was $1,000,000.00.
On April 1, 2011, a Chevrolet Silverado driven by Joshua Rhodes collided
with a motorcycle driven by David Moore, causing Moore serious injuries. At the
time of the accident, the Silverado was protected by a personal auto insurance
policy issued by Nationwide Mutual Insurance Company (the “Nationwide
policy”). In addition to the Silverado, that policy also insured two other vehicles
and provided, among other things, coverage for bodily injury and property damage.
The Nationwide policy limit for bodily injury was $25,000.00.
Following the collision, David Moore and his wife Denise Moore filed a
negligence suit against Joshua Rhodes in state court. Approximately a year later,
the action was amended to name Easdon Rhodes as an additional defendant. In
response to Moore’s filings, Nationwide tendered its policy limit of $25,000, and,
under a reservation of rights, Southern-Owners agreed to provide Easdon Rhodes
with a defense. Southern-Owners then filed this action in the United States District
Court for the Northern District of Florida seeking a declaration that it has no
obligation to defend or indemnify Easdon Rhodes, or the other defendants, against
Moore’s negligence claim.
Southern-Owners moved for summary judgment on April 1, 2014, arguing
the Nationwide policy provided coverage similar to that available under the
4
Case: 14-15386 Date Filed: 09/29/2017 Page: 5 of 21
Endorsement and consequently relieved Southern-Owners of any duty to defend or
indemnify Easdon Rhodes under the plain terms of the insurance contract.
Southern-Owners also argued the Silverado driven by Joshua Rhodes was not
covered by the Endorsement in the first instance because it did not meet the
policy’s definition of a hired or non-owned auto. The District Court agreed with
Southern-Owners’ interpretation of the Endorsement and, on October 30, 2014,
granted summary judgment in Southern-Owners’ favor, absolving the insurer of
any duty to defend or indemnify Easdon Rhodes against Moore’s underlying
negligence suit.
II.
We review “a district court’s grant of summary judgment de novo applying
the same legal standards used by the district court.” Galvez v. Bruce, 552 F.3d
1238, 1241 (11th Cir. 2008). “Summary judgment is appropriate where ‘there is
no genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law.’” Wooden v. Bd. of Regents of the Univ. Sys. of Ga.,
247 F.3d 1262, 1271 (11th Cir. 2001) (quoting Fed. R. Civ. P. 56(c)). We also
review de novo a district court’s interpretation of contract language. Nat’l Fire Ins.
Co. v. Fortune Constr. Co., 320 F.3d 1260, 1267 (11th Cir. 2003).
III.
A.
5
Case: 14-15386 Date Filed: 09/29/2017 Page: 6 of 21
In this diversity action, we must apply “the substantive law of the forum
state.” Tech. Coating Applicators, Inc. v. U.S. Fid. & Guar. Co., 157 F.3d 843,
844 (11th Cir. 1998). Here, we look to Florida law to determine whether Southern-
Owners owed a duty to indemnify or defend its insured against Moore’s suit in
state court. In Florida, the terms used in an insurance contract are given their
ordinary meaning, and the policy must be construed as a whole “to give every
provision its full meaning and operative effect.” Auto-Owners Ins. Co. v.
Anderson, 756 So. 2d 29, 34 (Fla. 2000). The Florida Supreme Court has
emphasized the necessity of interpreting the “terms of an insurance policy . . . in
their ordinary sense [to provide] a reasonable, practical and sensible interpretation
consistent with the intent of the parties.” Siegle v. Progressive Consumers Ins. Co.,
819 So. 2d 732, 736 (Fla. 2002) (quoting Gen. Accident Fire & Life Assurance
Corp. v. Liberty Mut. Ins. Co., 260 So. 2d 249, 253 (Fla. Dist. Ct. App. 1972)).
An unambiguous policy provision is “enforced according to its terms whether it is
a basic policy provision or an exclusionary provision.” Hagen v. Aetna Cas. &
Sur. Co., 675 So. 2d 963, 965 (Fla. Dist. Ct. App. 1996).
If policy language is susceptible to multiple, reasonable interpretations,
however, the policy is considered ambiguous and must be “interpreted liberally in
6
Case: 14-15386 Date Filed: 09/29/2017 Page: 7 of 21
favor of the insured and strictly against the drafter who prepared the policy.” 2
Auto-Owners, 756 So. 2d at 34. To allow for such a construction, the insurance
policy “must actually be ambiguous.” Taurus Holdings, Inc. v. U.S. Fid. & Guar.
Co., 913 So. 2d 528, 532 (Fla. 2005). Courts are not authorized “to put a strained
and unnatural construction on the terms of a policy in order to create an uncertainty
or ambiguity.” Jefferson Ins. Co. of N.Y. v. Sea World of Fla., Inc., 586 So. 2d 95,
97 (Fla. Dist. Ct. App. 1991). The mere fact that an insurance provision is
“complex” or “requires analysis” does not make it ambiguous. Swire Pac.
Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003).
B.
The central interpretative question presented here is whether the existence of
a separate insurance policy, which paid policy limits for the underlying claim at
issue, qualifies as “similar insurance” under the Endorsement’s exclusion clause
thereby absolving Southern-Owners of any duty toward its insured, Easdon
Rhodes. The exclusion clause provides that insurance protection is only available
under the Endorsement “if you do not have any other insurance available to you
which affords the same or similar coverage.” The parties do not dispute that the
Nationwide policy insuring the Silverado driven by Joshua Rhodes qualifies as
2
This rule applies with even greater force in the context of exclusion clauses which
courts must “construe[] even more strictly against the insurer than coverage clauses.” Auto-
Owners, 756 So. 2d at 34.
7
Case: 14-15386 Date Filed: 09/29/2017 Page: 8 of 21
“other insurance” and that the Nationwide policy does not offer the “same”
coverage as the Endorsement. So, whether the Endorsement’s exclusion clause
applies to relieve Southern-Owners of a duty to defend or indemnify Easdon
Rhodes depends on the meaning of “similar coverage,” a term left undefined by the
policy. 3
Southern-Owners contends the phrase “similar coverage” is susceptible to
only a single reasonable interpretation within the context of the Endorsement’s
exclusion clause: “that it triggers whenever another policy . . . is available to pay
for the same liability claimed under the policy at issue.” Moore disagrees and
argues the “similar coverage” language is ambiguous because it could also be
reasonably interpreted to require the presence of another insurance policy covering
the same overall set of risks as the Southern-Owners corporate general liability
policy, not just the specific liability claimed. As Florida law requires the
interpretation of ambiguous insurance policies in favor of coverage, Moore asserts
Southern-Owners cannot use the Endorsement’s exclusion clause to justify
disclaiming its duty to defend and indemnify Easdon Rhodes. Because we find
only a single reasonable interpretation of the Endorsement’s exclusion clause
exists, we decline Moore’s invitation to manufacture uncertainty and now hold that
3
Because we ultimately hold the Endorsement’s exclusion clause unambiguously applies
to deny Easdon Rhodes coverage here, we need not address the parties’ other interpretative
arguments regarding the provision’s overall scope.
8
Case: 14-15386 Date Filed: 09/29/2017 Page: 9 of 21
the clause unambiguously operates to deny Easdon Rhodes insurance coverage
here.
Neither party has provided binding authority interpreting the phrase “similar
coverage,” nor have we been able to locate such authority on our own. 4 We must
interpret the clause ourselves beginning with discerning the phrase’s plain meaning
via “references [that are] commonly relied upon to supply the accepted meaning of
[the] words.” Penzer v. Transp. Ins. Co., 29 So. 3d 1000, 1005 (Fla. 2010)
(quoting Garcia v. Fed. Ins. Co., 969 So. 2d 288, 292 (Fla. 2007)). Similar means
“alike in substance” or “having characteristics in common.” MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY 1093 (10th ed. 1999). And, in the insurance context,
coverage is defined as the “[i]nclusion of a risk under an insurance policy; the risks
within the scope of an insurance policy.” Coverage, BLACK’S LAW DICTIONARY
446 (10th ed. 2014). This definition suggests “coverage,” as used in the
Endorsement, has two potential meanings. The term may either refer specifically
to the inclusion of an individual risk covered by an insurance policy, or it may
broadly refer to the overall scope of protection a particular insurance policy offers.
4
Moore primarily relies on a single unpublished decision, Southern-Owners Ins. Co. v.
Wall 2 Walls Constr., LLC, 592 F. App’x 766 (11th Cir. 2014), interpreting identical language in
another Southern-Owners policy. However, we are not bound by unpublished decisions. See
U.S. Ct. of App. 11th Cir. R. 36-2 (providing that “[u]npublished opinions are not considered
binding precedent”).
9
Case: 14-15386 Date Filed: 09/29/2017 Page: 10 of 21
Fortunately, we may use the broader context surrounding the phrase “similar
coverage” to select between these two possible meanings. See, e.g., State Farm
Mut. Auto Ins. Co. v. Mashburn, 15 So. 3d 701, 704 (Fla. Dist. Ct. App. 2009)
(explaining a “single policy provision should not be read in isolation and out of
context, for the contract is to be construed according to its entire terms, as set forth
in the policy and amplified by the policy application, endorsements, or riders”).
Here, the wording of both the Endorsement’s exclusion clause and the Coverages
section of the Southern-Owners corporate general liability policy supports adopting
the narrower definition of “coverage” which specifically refers to the “[i]nclusion
of a risk under an insurance policy.” Coverage, BLACK’S LAW DICTIONARY 446
(10th ed. 2014).
First, an examination of the exclusion clause itself reveals the term
“coverage” is intended to reference particularized risks included within a policy
rather than the entire scope of protection the policy offers. The word “coverage” in
the exclusion clause is immediately preceded by the verb “affords” and the
identification of the two discrete risks, bodily injury and property damage, for
which the Endorsement provides protection. To “afford” is commonly defined as
“to furnish, bestow, grant, [or] yield.” OXFORD ENGLISH DICTIONARY 222 (2d ed.
2001). So, with this definition in mind, the exclusion clause most naturally reads
as disclaiming insurance protection under the Endorsement “if you do not have any
10
Case: 14-15386 Date Filed: 09/29/2017 Page: 11 of 21
other insurance available to you which [furnishes protection against the same or
similar risks, property damage or bodily injury, as provided by the Endorsement].”
This interpretation conforms to the typical understanding of the word
“coverage” when it is employed in ordinary conversation regarding discrete,
particularized risks—insurance consumers simply want to know whether insurance
will cover, or assume the cost of, the risk at issue. The full suite of protections
provided by the insurance policy is not relevant to the basic inquiry into whether a
policy insures against a particular identifiable risk. As the District Court succinctly
explained, common sense tells us that in the context of an endorsement to an
insurance contract adding protection against specific risks otherwise excluded by
the policy, the word “coverage” refers to the specific risk protection being added
rather than the universe of risks covered by the entire policy. Such an
understanding fully comports with the requirements of Florida law which urges us
to interpret the words of an insurance policy in their “ordinary sense.” See Siegle,
819 So. 2d at 736.
Our understanding of “coverage” as referring to the inclusion of a specific
risk in an insurance policy is reinforced by the term’s repeated use within the
Coverages section of the Southern-Owners corporate general liability policy at
issue here. The Endorsement itself explicitly uses coverage in reference to the two
specific types of risks it covers, “Bodily Injury and property damage liability . . .
11
Case: 14-15386 Date Filed: 09/29/2017 Page: 12 of 21
arising out of the maintenance or use of an ‘auto.’” Elsewhere, the Coverages
section of the Southern-Owners corporate general liability policy delineates the
particular risks of which Southern-Owners pledges to assume the costs. In both
cases, the use of the term “coverage” is tied to the specific types of risk protected
by the policy. Nowhere in the policy does Southern-Owners use the term
“coverage” to broadly refer to the entire universe of risks associated with the
insurance contract. Instead, the word continually appears in the context of detailed
explanations for a specific risk for which the policy provides coverage.
Additionally, Florida law tells us we must give each term and provision in
an insurance policy operative effect and that we must avoid constructions
rendering particular phrases mere surplusage. See U.S. Fid. & Guar. Co. v.
Romay, 744 So. 2d 467, 471 (Fla. Dist. Ct. App. 1999). Only by interpreting
“coverage” to mean the “[i]nclusion of a risk under an insurance policy” do we
ensure that our construction of the Endorsement gives full effect to the proceeding
phrase in the provision’s exclusion clause, “any other insurance.” See Coverage,
BLACK’S LAW DICTIONARY 446 (10th ed. 2014). Any means “one or some
indiscriminately of whatever quantity.” MERRIAM WEBSTER’S COLLEGIATE
DICTIONARY 53 (10th ed. 1999). So, the phrase “any other insurance” must refer to
all forms of insurance regardless of the type of policy or the amount of protection
provided. Interpreting coverage to refer to the inclusion of a specific risk in an
12
Case: 14-15386 Date Filed: 09/29/2017 Page: 13 of 21
insurance policy preserves this meaning by indicating the form or type of the other
insurance at issue is irrelevant. Instead, the Endorsement’s exclusion clause
remains solely concerned with whether the other available insurance protects
against the same risks as the Endorsement rather than whether it offers the same
overall level of protection. If both the Endorsement and the other available policy
specifically protect against the same or similar risk at issue, the exclusion clause
would apply and eliminate Southern-Owners’ obligations under the terms of the
Endorsement.
On the other hand, interpreting “coverage” to refer to the overall scope of
the protection provided by an insurance policy effectively reads the “any other
insurance” phrase out of the Endorsement’s exclusion clause. Such an
interpretation shifts the clause’s frame of analysis from an evaluation of the
specific risk insured against to the overall scope of coverage offered by the
Endorsement and underlying corporate general liability policy. Under this
construction, the clause would functionally apply only to other non-owned auto
endorsements to corporate general liability policies, because any form of individual
auto insurance would by definition protect a broader universe of vehicles from a
different set of risks. This approach would render the “any other insurance”
language in the Endorsement essentially meaningless since only a very specific
type of insurance would ever fall within the exclusion clause’s purview.
13
Case: 14-15386 Date Filed: 09/29/2017 Page: 14 of 21
Not only would this reading of the Endorsement directly contravene Florida
law by reading out relevant policy language, but it would also ignore the practical
realities of the insurance market. Companies and individuals purchase insurance
for the purposes of protecting themselves against particular risks. It is in their
interest to minimize duplicative insurance which serves only to increase cost
without providing a commensurate increase in protection. Thus, the typical
insurance consumer is extremely unlikely to buy insurance policies with the idea of
providing duplicative coverage for risks their existing insurance already covers. If
increased insurance protection for such a risk becomes necessary, it would almost
always be simpler to increase the amount of coverage on the existing policy rather
than incur the transaction costs associated with acquiring duplicative coverage
through another policy. 5 We see that exact scenario born out here through the
Endorsement which provides a limited amount of non-duplicative coverage at a
very low cost as compared to a generalized duplicative insurance policy. Indeed,
the Endorsement carries an annual premium of only $61.29 and provides a policy
limit of $1,000,000.00 for bodily injury or property damage. By comparison, the
bodily injury coverage provided by the personal Nationwide policy also in place on
5
Excess-liability and umbrella policies are also available to provide additional insurance
where consumers desire more coverage than their policies extend. These policies are not
duplicative because they are not triggered until the policy limits of the underlying insurance
policy are exhausted.
14
Case: 14-15386 Date Filed: 09/29/2017 Page: 15 of 21
the Silverado at the time of the collision provided a policy limit of only $25,000.00
at an annual cost of $470.00.
This basic understanding of the insurance market also offers strong evidence
that the parties intended to define “coverage” as “[i]nclusion of a risk under an
insurance policy.” Coverage, BLACK’S LAW DICTIONARY 446 (10th ed. 2014). In
the original corporate general liability policy Southern-Owners provided to Easdon
Rhodes, risks stemming from the use of automobiles were expressly excluded from
the policy. As Florida law makes clear, the addition of a non-owned automobile
Endorsement was for a specific purpose—to “provide coverage to the insured
while engaged in infrequent or casual use of an automobile.” Lancer Ins. Co. v.
Gomez, 799 So. 2d 334, 336 (Fla Dist. Ct. App. 2001). While the Endorsement
would not totally exempt Easdon Rhodes from paying premiums for ordinary auto
insurance, it would provide cheap, emergency protection for bodily injury and
property damage stemming from the temporary business use of a hired or
borrowed auto that might not be adequately insured otherwise. The Endorsement’s
exclusion clause reinforces this narrow purpose by making clear the provision only
applies when this particularized risk is not protected against by “any other
[available] insurance.”
Easdon Rhodes must have been aware of the basic functioning of the
Endorsement because the company affirmatively added the provision to its
15
Case: 14-15386 Date Filed: 09/29/2017 Page: 16 of 21
Southern-Owners corporate general liability insurance policy. Presumably, this
action was taken because the maintenance and construction business conducted by
the company would occasionally necessitate the temporary use of various
automobiles not separately insured by the corporation or its members. In order to
cheaply protect itself from the potential risks stemming from the use of these
temporary vehicles, Easdon Rhodes requested and received a narrowly tailored
Hired Auto and Non-Owned Auto Liability Endorsement to its corporate general
liability policy. It cost about $400 less per year than the Nationwide policy also
covering the Silverado at the time of the collision while providing a policy limit
approximately forty times higher. This substantial discrepancy in cost and policy
limit speaks volumes regarding the intended reach of the Endorsement’s exclusion
clause. Such a low price for such expansive coverage is only adequately explained
by the presence of an exclusion clause which routinely applies, since the specific
risks dealt with by the Endorsement would almost always be covered by some
other auto insurance policy. Interpreting coverage to refer to the overall scope of
the risks dealt with by a particular policy, as Moore suggests, would gut the
exclusion clause’s intended effect, and Easdon Rhodes would effectively be
receiving an insurance windfall via the Endorsement, a nonsensical result.
Accordingly, in the context of the Endorsement’s exclusion clause, only a
single reasonable interpretation of the phrase “similar coverage” exists: that it
16
Case: 14-15386 Date Filed: 09/29/2017 Page: 17 of 21
refers to “another policy . . . [that] is available to pay for the same [or similar]
liability claimed under the policy at issue.” In this case, the Nationwide policy in
place at the time of the accident easily falls within this definition. As the District
Court explained, the simple fact the Nationwide policy has already paid its policy
limit to cover the underlying accident sufficiently evidences that it provides similar
coverage to that offered by the Endorsement. Indeed, the Nationwide policy goes
beyond mere similarity and includes protection against exactly the same risks as
the Endorsement, bodily injury and property damage. Accordingly, the
Endorsement’s exclusion clause operates unambiguously to relieve Southern-
Owners of any duty to defend or indemnify Easdon Rhodes, or the other
defendants, against Moore’s negligence action. 6
Moore is correct to point out that we recently reached the opposite
conclusion when interpreting identical language in an unpublished decision,
Southern-Owners Insurance Co. v. Wall 2 Walls Construction, LLC, 592 F. App’x
766 (11th Cir. 2014). However, that decision’s rationale was almost entirely
focused on the ambiguity introduced by the exclusion clause’s use of the term
6
This common sense conclusion is hardly controversial. Indeed, applying Michigan law,
we have previously applied an exclusion clause using comparable “same or similar coverage”
language without any discussion of potential ambiguity. See McGow v. McCurry, 412 F.3d
1207, 1218–20 (11th Cir. 2005), abrogated on other grounds by Diamond Crystal Brands, Inc. v.
Food Movers Int’l, Inc., 593 F.3d 1249 (11th Cir. 2010).
17
Case: 14-15386 Date Filed: 09/29/2017 Page: 18 of 21
“similar.” See id. at 770.7 We agree with our decision in Wall 2 Walls to the
extent that we found the word “similar” ambiguous, standing alone. Id. Without
an adequate frame of comparative reference, it becomes extremely difficult to
pinpoint exactly in what respects and to what extent insurance policies must be
alike to properly qualify as “similar.” However, the opinion in Wall 2 Walls failed
to consider the meaning of “coverage” within the context of the policy it examined.
See id. Properly defined as the inclusion of a specific risk under an insurance
policy, “coverage” supplies the exact limiting factor required to sensibly deploy a
word like “similar.” As we have discussed, the plain meaning of “coverage” limits
the application of “similar” to the simple question of whether a risk is included in
an insurance policy or not. This provides a reasonably precise metric to guide a
reader’s understanding of the word “similar” and obviates any ambiguity the term,
standing alone, might otherwise have.
Moore’s argument that differences in policy limits between the Nationwide
policy and the Endorsement indicates the coverages are not similar is likewise
unavailing. First, as extensively discussed above, “coverage,” within the context
of the insurance industry, refers to the risks a particular policy protects against, not
7
Our decision in Wall 2 Walls, like Moore, also relied on the longstanding Florida rule
that ambiguous policy provisions ought to be construed in favor of coverage. See Wall 2 Walls,
592 F. App’x at 770. We do not quibble with this doctrinal point. We simply conclude the
meaning of the policy provision before us is plain and susceptible to only a single reasonable
interpretation.
18
Case: 14-15386 Date Filed: 09/29/2017 Page: 19 of 21
how much protection the insurance policy actually provides. Thus, the amount of
protection offered is a distinct inquiry from the type of coverage and is not
implicated by the phrase “same or similar coverage.” See Bergman v. Hutton, 101
P.3d 353, 357–58 (Or. 2004) (defining coverage separately from the limits of
insurer liability provided by the policy itself); Am. States Ins. Co. v. Kesten, 561
N.W.2d 486, 487 (Mich. Ct. App. 1997) (rejecting an argument that coverages are
not similar based on different available policy limits as “specious”); Smart v.
Safety Ins. Co., 643 N.E.2d 435, 437 (Mass. 1994) (determining that, so long as
coverage of a particular risk was “not illusory,” it would still qualify as similar
insurance to another policy offering a substantially greater amount of coverage);
see also Hamilton v. Gov’t Emps. Ins. Co., 662 A.2d 568, 571–72 (N.J. Super. Ct.
App. Div. 1995) (defining the type or scope of coverage a policy provides as a
distinct inquiry from the coverages’ policy limit).
Furthermore, interpreting “coverage” as referencing not just the type but
also the amount of coverage produces absurd results. Adopting this interpretation
would mean “similar coverage” exclusion clauses would trigger only if the other
available insurance policy dealing with the same risks also had an analogous
coverage limit. This position reflects an unrealistic view of the method in which
consumers purchase insurance. Given the transaction costs involved, purchasing
multiple duplicative coverages for the same risk simply does not make sense. To
19
Case: 14-15386 Date Filed: 09/29/2017 Page: 20 of 21
the extent coverages overlap at all, it is likely that different policy limits would be
available under each policy to reflect the different insurance objectives sought by
the insured. It is difficult to imagine a scenario offering a rational justification for
purchasing multiple policies all offering the same amount of protection for the
same risk and even more difficult to imagine a potential justification for
purposefully drafting an exclusion clause to bar coverage in this most unlikely
context. We are satisfied that the plain meaning of the Endorsement’s exclusion
clause is concerned only with the type rather than amount of available “similar
[insurance] coverage.”
IV.
Admittedly, we have engaged in extensive analysis to justify the common
sense conclusion that an exclusion clause denying coverage in the event the
insured has available “any other insurance with the same or similar coverage”
applies when the insured has another insurance policy paying policy limits for the
underlying liability. But Florida law is clear that ambiguity does not result simply
because complex analysis is required to discern the plain meaning of a provision of
an insurance contract. See Swire Pac. Holdings, 845 So. 2d at 165. Indeed,
Florida courts have repeatedly cautioned that it is improper to “rewrite contracts,
add meaning that is not present, or otherwise reach results contrary to the
intentions of the parties” while seeking to identify ambiguity not actually present
20
Case: 14-15386 Date Filed: 09/29/2017 Page: 21 of 21
in the insurance policy. Id. (quoting State Farm Mut. Auto. Ins. Co. v. Pridgen,
498 So. 2d 1245, 1248 (Fla. 1986)).
The Endorsement at issue here is not a model of clarity or precision. But
before the policy may be construed against Southern-Owners and in favor of the
insured, we must determine if an ambiguity exists based upon the presence of
multiple reasonable interpretations of the policy language, not the inherent
indeterminacy of linguistic expression. See Excelsior Ins. Co. v. Pomona Park Bar
& Package Store, 369 So. 2d 938, 942 (Fla. 1979) (noting the Florida rule
requiring the interpretation of ambiguous insurance policies in favor of coverage
applies “[o]nly when a genuine inconsistency, uncertainty, or ambiguity in
meaning remains after resort to the ordinary rules of construction”). Southern-
Owners does not need to create a crystal clear insurance policy. It need only
provide an unambiguous one. It has carried that modest burden. We decline
Moore’s invitation to manufacture ambiguity where none exists. Because we find
the Endorsement’s exclusionary clause unambiguously denies coverage in this
case, we affirm the District Court’s grant of summary judgment.
AFFIRMED.
21