Larry Musselwhite v. Florida Farm General Insurance Company and Florida Farm Bureau Casualty Insurance Company, Joseph Hart, an individual, JODH3, Inc., d/b/a Bell Feed & Farm, Well & Pump

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-780
_____________________________
LARRY MUSSELWHITE,
Appellant,
v.
FLORIDA FARM GENERAL
INSURANCE COMPANY and
FLORIDA FARM BUREAU
CASUALTY INSURANCE COMPANY,
JOSEPH HART, an individual,
JODH3, INC., d/b/a Bell Feed &
Farm, Well & Pump,
Appellees.
_____________________________
On appeal from the Circuit Court for Gilchrist County.
Monica J. Brasington, Judge.
May 28, 2019
PER CURIAM.
In this appeal from a final summary judgment in an action for
declaratory relief, Appellant asserts that the trial court erred in
concluding that two insurance policies did not provide coverage for
personal injuries that Appellant sustained while drilling a water
well for a residential customer of the insureds. In doing so,
Appellant claims that (1) the declaration page’s reference to the
fictitious name of the insureds’ feed store business did not limit
coverage because a fictitious name is not a legal and insurable
entity separate and apart from the named insured; and (2) the well
drilling activity arose out of operations necessary or incidental to
business conducted on the feed store premises. Finding both claims
to be without merit, we affirm.
I.
Appellant filed a negligence action against JODH3, Inc. d/b/a
Bell Feed & Farm, Well & Pump and its principal, Joseph Hart,
for injuries he sustained after he had been hired to assist in a
water well drilling project in Trenton, Florida. Subsequently,
Appellees, Florida Farm General Insurance Company and Florida
Farm Bureau Casualty Insurance Company, filed a complaint for
declaratory relief seeking a determination that they had no duty
under two commercial general liability policies to defend or
indemnify JODH3 and Hart as to Appellant’s claims against them.
The subject policies were first issued on August 19, 2011, and
renewed annually without any changes. The declarations page to
the first policy identified “JODH3, Inc. d/b/a Bell Feed & Farm” as
the named insured and described the business as a “feed store.”
The declarations page of the second policy identified Joseph Hart
and his wife as named insureds and also described the business as
a “feed store.” Both polices contained a specific endorsement
limiting coverage to “‘bodily injury,’ ‘property damage,’ ‘personal
injury,’ ‘advertising injury’ and medical expenses arising out of . .
. [t]he ownership, maintenance or use of the premises shown in the
Schedule and operations necessary or incidental to those
premises[.]” The schedule described the premises as follows:
1159 S PARIS ST BELL, FL 32619-2396
FEED/GRAIN/HAY DEALER
NON-COMBUSTIBLE
The second policy was issued because Hart and his wife owned the
business premises—which they leased to JODH3—and might be
subject to personal liability for claims arising out of their
ownership of the premises.
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During the 2014-2015 policy period, Hart began a new
business that offered well drilling services under the fictitious
name “JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump.” Most
of the well drilling—65 to 75 percent—was for residential
customers. Hart continued to maintain the fictitious name
“JODH3, Inc. d/b/a Bell Feed & Farm” for his feed store business.
While both businesses were owned by JODH3, each business had
separate banks accounts, email addresses, business cards,
invoices, and phone numbers.
In 2015, Hart contacted his insurance agent, Ben Colson, to
inquire about obtaining insurance for his new well drilling
business, JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump. On
May 26, 2015, Colson contacted an underwriter for Appellees and
requested a quote for liability insurance covering the well drilling
business. That same day, the underwriter informed Colson that
Appellees did not insure well drilling operations. Colson then told
Hart that he could not obtain the requested coverage from
Appellees. On July 20, 2015, Colson obtained a quote for well
drilling liability coverage from Atlantic Casualty Insurance
Company with an effective date of June 22, 2015. When Colson
communicated the quote to Hart, Hart responded that he did not
have the cash on hand to pay the premium and chose not to obtain
coverage at that time.
On January 28, 2016, Appellant was hired as an independent
contractor by JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump
and sustained injuries while drilling a well on a residential
customer’s property. The next day, Hart contacted Colson to obtain
the liability policy that Colson previously quoted for his well
drilling business. On February 2, 2016, Colson received an
updated quote from Atlantic Casualty Insurance Company. Hart
applied for the insurance in the name of “Bell Feed & Farm, Well
& Pump” and obtained liability coverage for the well drilling
business on June 3, 2016.
Appellant filed a motion for summary judgment in Appellees’
declaratory judgment action. Specifically, he argued that since a
fictitious name was not a viable legal entity separate from its
principal, JODH3 should be insured under the “Bell Feed & Farm”
policy for any type of business it operated because there was no
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express exclusion for well drilling in the policy. He also argued that
the well drilling activity was incidental or related to the operation
of the feed store.
Appellees filed a cross-motion for summary judgment on the
grounds that the policies did not insure the well drilling business
and Appellant’s claims were entirely unrelated to the insured
business premises, which had been described as a feed store.
Specifically, Appellees asserted that while both the feed store and
the well drilling operation were owned by the same legal entity,
JODH3, the only insured business was the feed store as evidenced
by the specification of the named insured as “JODH3, Inc. d/b/a
Bell Feed & Farm” and Hart’s application describing the business
as a feed store with no mention of well drilling. Appellees also
claimed that they never knowingly undertook the risk of insuring
a well drilling business because they did not write coverage
insuring that type of risk. Finally, they argued that it was
undisputed that the well drilling operations were neither
necessary nor incidental to the feed store premises.
After holding a hearing, the trial court denied Appellant’s
motion for summary judgment, granted Appellees’ motion for
summary judgment, and entered final judgment for Appellees. In
doing so, the court concluded that the insurance policies did not
provide coverage for claims arising out of the insureds’ drilling
operations, but only covered claims arising out of their business
premises, which was described by the declaration’s page as a “feed
store.” The court further found that well drilling operations were
neither necessary nor incidental to the feed store business or its
premises. This appeal followed.
II.
The interpretation of an insurance contract is a question of
law subject to de novo review. Gov’t Emps. Ins. Co. v. Macedo, 228
So. 3d 1111, 1113 (Fla. 2017); Lee v. Montgomery, 624 So. 2d 850,
851 (Fla. 1st DCA 1993). Where the language in an insurance
contract is unambiguous, a court must interpret the contract in
accordance with its plain meaning. Allstate Ins. Co. v. Orthopedic
Specialists, 212 So. 3d 973, 975-76 (Fla. 2017). “Policy language is
considered to be ambiguous . . . if the language ‘is susceptible to
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more than one reasonable interpretation, one providing coverage
and the other limiting coverage.’” Travelers Indem. Co. v. PCR Inc.,
889 So. 2d 779, 785 (Fla. 2004) (quoting Swire Pac. Holdings, Inc.
v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003)). “[A]mbiguous
insurance policy exclusions are construed against the drafter and
in favor of the insured.” Auto–Owners Ins. Co. v. Anderson, 756 So.
2d 29, 34 (Fla. 2000). “To find in favor of the insured on this basis,
however, the policy must actually be ambiguous.” Penzer v.
Transp. Ins. Co., 29 So. 3d 1000, 1005 (Fla. 2010) (emphasis
omitted). “The ambiguity must be genuine, and the lack of a
definition for an operative term ‘does not, by itself, create an
ambiguity.’” Macedo, 228 So. 3d at 1113 (quoting Botee v. S. Fid.
Ins. Co., 162 So. 3d 183, 186 (Fla. 5th DCA 2015)). “‘When a term
in an insurance policy is undefined, it should be given its plain and
ordinary meaning, and courts may look to legal and non-legal
dictionary definitions to determine such a meaning.’” Id.A.
In this case, Appellant claims that the trial court erred in
entering summary judgment for Appellees upon concluding that
the insurance policies they issued to the insureds—JODH3 and
Hart—did not provide coverage for the personal injuries Appellant
suffered while drilling a water well for a residential customer of
the insureds. First, he argues that since a fictitious name is not a
viable legal entity separate from its principal, JODH3 should be
insured under the “Bell Feed & Farm” policy for any type of
business it operated because there is no express exclusion for well
drilling in the policy. It is undisputed that the declarations page
to the policy in question identified “JODH3, Inc. d/b/a Bell Feed &
Farm” as the named insured and described the business as a “feed
store.” It is also undisputed that JODH3’s well drilling business
(“JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump”) was not in
existence when this policy was initially issued. Based on the above,
the trial court concluded that under the plain language of the
policy, JODH3 was insured under the policy only for the operation
of its feed store business under the fictitious name “Bell Feed &
Farm.”
A number of courts in other jurisdictions have held that when
a liability policy identifies a named insured as doing business
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under a fictitious name, coverage is limited only to business done
under the fictitious name and does not extend to any other
business operated by the insured. See Lincoln Gen. Ins. Co. v.
Pacheco, No. EP-1 1-CV-482-DB, 2012 WL 12539325, at *5 (W.D.
Tex. Mar. 2, 2012); Charter Oak Fire Ins. Co. v. Coleman, 273 F.
Supp. 2d 903, 913 (W.D. Ky 2003); Miller v. Hehlen, 104 P.3d 193,
199 (Ariz. Ct. App. 2005); Fidelity & Deposit Co. v. Charter Oak
Fire Ins. Co., 78 Cal. Rptr. 2d 429, 432 (Cal. Ct. App. 1998); Consol.
Am. Co. Ins. v. Landry, 525 So. 2d 567 (La. Ct. App. 1988); Hertz
Corp. v. Ashbaugh, 607 P.2d 1173 (N.M. Ct. App. 1980); Budget
Rent-A-Car Sys., Inc. v. Shelby Ins. Grp., 541 N.W.2d 178, 181
(Wis. Ct. App. 1995). At least one Florida court appears to agree
with this position. See Rosen v. Nat’l Union Fire Ins. Co. of
Pittsburgh, Pa., 249 So. 2d 701 (Fla. 3d DCA 1971) (holding that
an insurance policy did not cover an accident involving a vehicle
owned by partner and driven by partner’s daughter where the
policy listed the named insured as partner doing business as
Market Truck Stop). However, other courts have held to the
contrary. See Providence Washington Ins. Co. v. Valley Forge Ins.
Co., 50 Cal. Rptr. 2d 192, 195-96 (Cal. Ct. App. 1996); Hall v. Auto-
Owners Ins. Co., 658 N.W.2d 711, 720 (Neb. 2003).
We conclude that the greater weight of authority supports the
trial court’s conclusion that the “d/b/a” designation limited liability
to JODH3’s feed store business operated under the fictitious name.
To hold otherwise would frustrate the intent clearly expressed in
the policy declarations, subject Appellees to open-ended exposure
to liability for any new business operations that JODH3 might
unilaterally decide to undertake, and force Appellees to insure
risks that they never contracted to cover. JODH3 cannot be
allowed to effectively rewrite the policy by requiring Appellees to
insure risks arising from a well drilling business that did not exist
when the policy terms were agreed upon.
B.
In addition, Appellant asserts the trial court erred in further
finding that the policies provided no coverage for well drilling
operations unrelated to the insureds’ feed store premises. Both
policies contained a specific endorsement limiting coverage to
“‘bodily injury,’ ‘property damage,’ ‘personal injury,’ ‘advertising
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injury’ and medical expenses arising out of . . . [t]he ownership,
maintenance or use of the premises shown in the Schedule and
operations necessary or incidental to those premises[.]” The
schedule described the premises as a “FEED/GRAIN/HAY
DEALER.”
In Union American Insurance Co. v. Haitian Refugee
Center/Sant Refijie Ayisyin, Inc., 858 So. 2d 1076 (Fla. 3d DCA
2003), the Third District held that an identical endorsement in a
commercial liability policy effectively converted the policy into the
equivalent of a premises or owner’s, landlord’s and tenant’s policy.
Id. at 1078 n.1. As a result, the court held that the policy did not
provide coverage for the shooting death of a bystander at a street
rally sponsored by the insured that was held a mile away from the
insured’s headquarters. Id. at 1077-78. The court rejected the trial
court’s conclusion that coverage was provided because the event at
which the decedent was killed was an operation necessary or
incidental to the insured’s business, explaining that this involved
an improper judicial rewriting of the policy by substituting
“business” for the policy word “premises.” Id. at 1078. Based on
this decision, the policies issued by Appellees would not provide
coverage for Appellant’s accident because it occurred away from
the insureds’ premises while Appellant was drilling a well on a
third party’s property, which did not concern an operation
necessary or incidental to the insureds’ premises as described in
the schedule.
However, in Southeast Farms, Inc. v. Auto-Owners Insurance
Co., 714 So. 2d 509 (Fla. 5th DCA 1998), the Fifth District came to
a different conclusion in a case involving the same designated
premises endorsement to a commercial general liability policy,
holding that it provided coverage for an off-premises auto accident
arising from the alleged negligence of the insured—a produce
broker primarily brokering potatoes—in failing to inspect the
delivery truck and driver. The court found that the endorsement
created an ambiguity as to whether the policy was a general
liability policy or a premises liability policy, requiring it to be
construed in favor of the insured. Id. at 511. The court also noted
that the insurer made the “surprising” assertion that the policy
would cover operations necessary or incidental to the main
business of the insured, even though the policy referred only to
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premises, which “pretty much gives the ball game away.” Id. at 511
n.3. Based on this concession, the court concluded that the insurer
recognized that “‘premises’ includes the business operated on the
premises.” Id. at 512. The court further concluded that “the act of
obtaining transportation for brokered potatoes is an incident of the
brokering of potatoes.” Id. at 511. Accordingly, the court reversed
the entry of summary judgment for the insurer and remanded for
judgment in favor of the insured. Id. at 512.
Citing this decision, federal courts have construed Florida law
as providing that the endorsement’s use of the term “premises”
includes business operations conducted from the premises. See
Evanston Ins. Co. v. Gaddis Corp., 145 F. Supp. 3d 1140, 1149-53
(S.D. Fla. 2015); Szczeklik v. Markel Int’l Ins. Co., 942 F. Supp. 2d
1254, 1262 (M.D. Fla. 2013); but see Nationwide Mut. Fire Ins. Co.
v. Wilbon, 960 F. Supp. 2d 263, 268-69 (D.D.C. 2013) (“There is no
consensus among courts whether a ‘limitation of liability to
designated premises’ provision limits insurance coverage to injury
at only the specified insured premises or whether it extends
insurance coverage to all business operations conducted from the
insured premises, thereby covering off-site injuries.”).
Assuming the designated premises endorsement in this case
created an ambiguity and that the term “premises” includes the
business operated on the premises, the trial court correctly found
that the polices did not provide coverage for well drilling
operations that were not necessary or incidental to the feed store
business conducted on the premises. The schedule described the
feed store premises as a “FEED/GRAIN/HAY DEALER.” The plain
or ordinary meaning of this description is that the business
operated on the premises involved the sale of animal feed,
particularly that for farm animals. An operation necessary or
incidental to such a business might include the delivery of feed
products to customers.
Contrary to Appellant’s assertion, this very specific business
description does not encompass the general sale of farm products
and services, which could include well drilling for farming
purposes. Because well drilling is not necessary or incidental to the
business of selling animal feed, the trial court properly concluded
that Appellant’s off-premises injury was not covered by the policies
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issued to JODH3 and Hart. Furthermore, even if the business
description encompassed the general sale of farm products and
services, this would not include Appellant’s drilling a well for a
residential customer unrelated to farming.
III.
In short, we conclude that the trial court properly entered
summary judgment for Appellees because Appellant’s off-premises
injury was not covered under the policies issued to JODH3 and
Hart where (1) the “d/b/a” designation limited liability to JODH3’s
feed store business operated under the fictitious name; and (2) well
drilling was not necessary or incidental to business conducted on
the feed store premises. * Accordingly, the final judgment is
affirmed in all respects.
*We also note that there is compelling extrinsic evidence
further establishing that the policies issued to JODH3 and Hart
did not cover well drilling operations. Despite this evidence, there
is considerable doubt as to whether extrinsic evidence can still be
used to construe insurance policies to the extent they contain any
ambiguities. In Washington National Insurance Corp. v.
Ruderman, 117 So. 3d 943 (Fla. 2013), Justice Labarga in a
plurality opinion (joined by two justices with one justice concurring
in the result) opined that the ambiguous policy “must be construed
against the insurer and in favor of coverage without resort to
consideration of extrinsic evidence.” Id. at 952. However, Chief
Justice Polston in a dissenting opinion (joined by two justices)
accused the plurality of silently receding from precedent providing
that “an ambiguous contract is construed against the insurer only
as a last resort, meaning only after all available construction aids,
including extrinsic evidence, fail to resolve the ambiguity.” Id. at
954-58 (citing case law). To the extent there was no actual majority
opinion in Ruderman, it arguably does not constitute binding
precedent prohibiting the consideration of extrinsic evidence when
construing an ambiguous insurance contract in Florida. Even if
consideration of extrinsic evidence is prohibited, the trial court
properly found that the plain language of the policies did not cover
off-premises well drilling activities.
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AFFIRMED.
ROBERTS, RAY, and JAY, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Daniel M. Bachi of Sellars, Marion & Bachi, P.A., West Palm
Beach, for Appellant.
Hinda Klein of Conroy Simberg, Hollywood, for Appellees Florida
Farm General Insurance Company and Florida Farm Bureau
Casualty Insurance Company.
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