Strained, Forced or Unrealistic Construction Of Insurance Not Allowed

Ambiguity Is not Certain When Term Not Defined

Insurance policies cover many and varied causes of loss. Insurance policies do not cover every possible cause of loss. Even the most broad all risk policy of insurance contains exclusions describing risks of loss the insurer is not willing to take.

In Ducksbury v. Progressive Express Insurance Company, District Court of Appeal of Florida, — So.3d —-, 2017 WL 192028 (1/18/17) an insurer applied what it believed to be a clear and unambiguous policy of insurance. After the trial court agreed with the insurer that an exclusion applied Dennis Ducksbury (“Ducksbury”), the insured, appealed a final judgment on a third party complaint entered in favor of Progressive Express Insurance Company and Progressive Select Insurance Company (“Progressive”).

FACTS

Ducksbury and his friend were planning a trip to Key West to participate in a motorcycle-related charity event. The two planned to drive Ducksbury’s SUV part of the way while hauling their motorcycles in a trailer. The friend secured his motorcycle in the trailer with “tie downs” and the two headed south. Somewhere near Boynton Beach, the trailer began to sway and then flipped, causing approximately $15,000 in damage to the friend’s motorcycle.

The friend submitted a claim to his insurance company, Allstate, which paid it. Allstate then sued Ducksbury for subrogation. Progressive, Ducksbury’s insurer, refused to indemnify and defend Ducksbury, leading Ducksbury to file a third-party complaint against Progressive.

Progressive responded, citing exclusion 10 of Ducksbury’s insurance policy. In pertinent part, the exclusion provides: “Coverage under this Part I, including our duty to defend, will not apply to any insured person for: …. 10. property damage to any property owned by, rented to, being transported by, used by, or in the charge of that insured person.”

Progressive then moved for summary judgment based on the exclusion, contending that the motorcycle was “being transported by” Ducksbury at the time of the incident. The trial court agreed.

ANALYSIS

On appeal, Ducksbury argues that a proper reading of the phrase “being transported by” indicates that possessory control of the property is required before the exclusion can apply. He further contended that, because the friend never relinquished control of the motorcycle, the friend was the one transporting it, and thus the exclusion does not apply.

When it comes to insurance contract interpretation, the Florida Supreme Court has explained that 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. In construing insurance contracts, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect. The terms of an insurance policy should be taken and understood in their ordinary sense and the policy should receive a reasonable, practical and sensible interpretation consistent with the intent of the parties — not a strained, forced or unrealistic construction.

The word “transport” is not defined in the policy.

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. There are no cases interpreting the phrase “being transported by” as it is used in the exclusion at issue in this case or in any individual’s insurance policy. Black’s Law Dictionary defines “transport” as “[t]o carry or convey (a thing) from one place to another.” Black’s Law Dictionary (10th ed. 2014). Similarly, a non-legal dictionary defines “transport” as “[t]o carry from one place to another.” The American Heritage Desk Dictionary 985 (1981).

The Court of Appeal opined that it could see only one reasonable interpretation of the language. The plain meaning of “being transported by” encompasses the friend’s motorcycle as being carried or conveyed to Key West by Ducksbury while it was inside a trailer being pulled by a vehicle that Ducksbury was driving. No further interpretation of the very simple, unambiguous language is required.

As found by the trial court and asserted by Progressive on appeal, Ducksbury seeks to interject words and meanings not present in the language of the exclusion when he argues that the exclusion must be read to require that the insured was exercising dominion and control over the property being transported. Exclusion 10 clearly contemplates the scenario at hand and thus the trial court judgment was affirmed.

ZALMA OPINION

Writing a clear and unambiguous insurance policy in “easy to read” language is extremely difficult. For that reason some policies contain multiple definitions giving special meaning to words different from their ordinary meaning. However, when the ordinary meaning of a term, like “transported” is obvious, clear and unambiguous a court has no choice but to apply that meaning as the District Court of Appeal of Florida found.

ZALMA-INS-CONSULT                      © 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business.

Mr. Zalma is the first recipient of theLEGEND-TROPHY-2 first annual Claims Magazine/ACE Legend Award.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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