Adkins v. Allstate Fire and Casualty Insurance Company

Filing 32

ORDER granting 29 Defendant's Motion for Summary Judgment Declaring No Uninsured Motorist Coverage. All pending motions are DENIED AS MOOT. The Clerk is directed to CLOSE this action and enter judgment accordingly. Signed by Judge Sheri Polster Chappell on 6/15/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GLEN ADKINS,
Plaintiff,
v.

Case No: 2:14-cv-588-FtM-38DNF

ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY,
Defendant.
/
ORDER1
This matter comes before the Court on Defendant's Motion for Summary Judgment
Declaring No Uninsured Motorist Coverage (Doc. #29) filed on May 15, 2015. Plaintiff
filed a Response in Opposition on May 27, 2015. (Doc. #31). The matter is now ripe for
review.
Background
Plaintiff Glen Adkins is an individual seeking underinsured motorist coverage
benefits. Defendant Allstate Fire and Casualty Insurance Company is the underwriter of
an insurance policy issued to Plaintiff’s now ex-wife.

In August 2014, Plaintiff was

involved in an altercation at a sports bar in Cape Coral, Florida, which resulted in a tragic
accident. (Doc. #28-3 at 17). As Plaintiff explains, during the altercation, he was standing
in the sports bar’s parking lot when a vehicle accidentally ran him over. (Doc. #28-3 at

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19). As a result, Plaintiff suffered two broken sacrums, a dislocated hip, five broken ribs,
a laceration on his head, a laceration in his pelvic area, and a laceration on his testicles.
(Doc. #28-3 at 20).
Jennifer Adkins, Plaintiff’s now ex-wife, maintained an auto insurance policy with
Defendant that included underinsured motorist coverage. (Doc. #28-1 at 30-78). After
receiving a minimal monetary recovery from the driver-at-fault’s insurance company,
Plaintiff filed a claim under his ex-wife’s policy, averring that it covered him for this
accident because the driver at fault was underinsured. (Doc. #24 at 1-5). Defendant
disagreed and denied Plaintiff’s claim. (Doc. #24 at 1-5). Faced with limited options,
Plaintiff filed the instant action asserting two counts: Declaratory Action for Coverage
(Count 1) and Uninsured/Underinsured Motorist Claim Against Allstate (Count 2). (Doc.
#24 at 3-5). Now, Defendant moves for summary judgment in its favor.
Legal Standard
Summary judgment is appropriate only when the Court is satisfied that “there is no
genuine issue as to any material fact” and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). An issue is genuine if there is sufficient evidence
such that a reasonable jury could return a verdict for either party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L. Ed. 2d 202 (1986). Similarly, an
issue is material if it may affect the outcome of the suit under governing law. Id.
The moving party bears the burden of showing the absence of any genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L. Ed.
2d 265 (1986). In deciding whether the moving party has met this initial burden, the Court
must review the record and all reasonable inferences drawn from the record in the light

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most favorable to the non-moving party. Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313
(11th Cir. 1999). Once the Court determines that the moving party has met its burden,
the burden shifts and the non-moving party must present specific facts showing that there
is a genuine issue for trial that precludes summary judgment. Matsushita Elec. Indus.
Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, S.Ct. 1348, 89 L. Ed. 2d 538 (1986).
“The evidence presented cannot consist of conclusory allegations, legal conclusions or
evidence which would be inadmissible at trial.” Demyan v. Sun Life Assurance Co. of
Canada, 148 F.Supp.2d 1316, 1320 (S.D. Fla. 2001) (citing Avirgan v. Hull, 932 F.2d
1572, 1577 (11th Cir. 1991)). Failure to show sufficient evidence of any essential element
is fatal to the claim and the Court should grant the summary judgment. Celotex, 477 U.S.
at 322-323. Conversely, if reasonable minds could find a genuine issue of material fact
then summary judgment should be denied. Miranda v. B & B Cash Grocery Store, Inc.,
975 F.2d 1518, 1532 (11th Cir. 1992).
Discussion
The issue before the Court today is whether Plaintiff is eligible to receive
underinsured motorist benefits under his ex-wife’s automobile insurance policy (“the
Policy”). The Policy provides underinsured motorists coverage for “damages which an
insured person is legally entitled to recover. . . .” (Doc. #24 at 34). Insured person is
defined, in pertinent part, as “any relative who resides in [the policyholder’s] household.”
(Doc. #24 at 34). Within that definition, “Reside” is defined as a “physical presence in
[the policyholder’s] household with the intention to continue living there.” (Doc. #24 at
18).

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With these definitions in hand, Defendant seeks summary judgment in its favor,
averring that Plaintiff is not covered by the Policy because he did not reside in his exwife’s household at the time of the accident, and has not resided there since. In support,
Defendant points to several facts that appear favorable to its position, including the fact
that, prior to the accident, Plaintiff’s ex-wife secured a domestic violence injunction
against him, preventing him from returning to their marital home for two years, and that
two weeks prior to the accident, Plaintiff entered into a one-year lease agreement on his
own apartment. Plaintiff disagrees, arguing that there is little question whether he was
covered by the Policy because he qualified as a relative who “resided” at his ex-wife’s
residence. To that end, Plaintiff notes that he left certain personal items at the residence
and that he was attending anger management classes in an attempt to reconcile his
marriage. After considering the Parties’ respective positions, the Court finds Defendant’s
argument persuasive.
Under Florida law, “insurance contracts are construed according to their plain
meaning.” Garcia v. Federal Ins. Co., 969 So.2d 288, 291 (Fla. 2007). Courts should not
“rewrite contracts, add meaning that is not present, or otherwise reach results contrary to
the intentions of the parties.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d
528, 532 (Fla. 2005) (internal citations and quotations omitted). Instead, “if a policy
provision is clear and unambiguous, it should be enforced according to its terms whether
it is a basic policy provision or an exclusionary provision.” Id. (internal citations and
quotations omitted). Here, when the Court construes the Policy’s clear and unambiguous
definition of “reside,” it is evident that Plaintiff failed to maintain the physical presence
necessary to receive underinsured motorist benefits.

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It is undisputed that Plaintiff and his ex-wife separated on July 15, 2013, when she
initiated divorce proceedings and secured a domestic violence injunction against him.
(Doc. #28-2 at 4:12-5:1). The terms of the injunction were simple – Plaintiff was not
allowed to return to the martial home for two years or have any communication with his
ex-wife, except by email when it related to their children. (Doc. #28-2 at 19:17; Doc. #283 at 14:17-21). As a result, on the date that the state court issued the injunction, Plaintiff
was escorted from the marital home by sheriff’s deputies.

(Doc. #28-3 at 5:5-11).

Plaintiff’s ex-wife, however, continued to reside in the home with their children. (Doc.
#28-2 at 7:18-8:7). In the months that followed, Plaintiff abided by the terms of the
injunction, returning to the home only once to retrieve some personal property, while
accompanied by a sheriff’s deputy. (Doc. #28-2 at 17:4-6). Plaintiff also ceased all
communications with his ex-wife other than running into her on a few occasions related
to their children and seeing her in the hospital after the accident. (Doc. #28-2 at 16:112). Plaintiff’s residence during this period consisted of sleeping on friends’ couches,
renting hotel rooms, and, two weeks prior to the accident, securing a one-year lease on
an apartment. (Doc. #28-3 at 3:30-6:5). Other than the sole occasion when Plaintiff
returned to the home accompanied by a sheriff’s deputy, Plaintiff had no physical
presence in the marital home. (Doc. #28-2 at 20:18-22). And this lack of physical
presence, in the Court’s view, fails to meet the policy’s definition of “reside.” See Kiplinger
v. Kiplinger, 2 So.2d 870, 873 (Fla. 1941) (“Residence indicates place of abode, whether
permanent or temporary.”) (citations omitted).
Notably, Plaintiff fails to present any facts indicating that his ex-wife lifted the
injunction at any point. Nor does Plaintiff present any facts indicating that he returned to

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the home on another occasion.2 Instead, Plaintiff directs the Court’s attention to Trezza
v. State Farm Mut. Auto Ins. Co., 519 So.2d 649 (Fla. 2d DCA 1988), which, Plaintiff
avers, “fit[s] like a glove” to the facts of this action. (Doc. #31 at 8-10). There, the court
examined “[w]hether a person in the Armed Forces remains a ‘resident’ of his former
household when he has not evidenced an intent to alter his residence and is only
physically absent from his home for the purposes of serving his country in the naval or
military services of the United States.” Id. at 650.
In answering this question in the affirmative, the court focused on case law from
around the country dealing with uninsured/underinsured motorist coverage and the
residency of members of the Armed Forces. Needless to say, the instant action is clearly
distinguishable. In Trezza, the plaintiff’s absence from the policyholder’s household was
due to his deployment to a military base; after which, he was certain to return to that
household. Here, not only did Plaintiff have an injunction entered against him that
prevented him from returning to his ex-wife’s household for two years, but it also forbid
him from communicating with her except on a very limited basis. And more importantly,
Plaintiff’s ex-wife initiated divorce proceedings against him on the same day that the
injunction was entered. Therefore, even when the injunction term ended, Plaintiff would
not be able to return to his ex-wife’s household because they would likely be divorced.
These proceedings were not simply a temporary arrangement analogous to a military

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Plaintiff appears to rely on, and provide cites to, a deposition of his ex-wife that was taken in connection
with the divorce proceedings. But that deposition has not been submitted to the Court, and therefore cannot
be used to defeat summary judgment. See Avirgan, 932 F.2d at 1577. Nevertheless, even if Plaintiff had
presented this deposition to the Court (which he has not), it does not appear that it would be enough to
defeat summary judgment.

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deployment; they were a means to remove Plaintiff from his ex-wife’s household, and they
succeeded in doing so.
Plaintiff’s other primary citations fair no better.

In Sanders v. Wausau

Underwriters Ins. Co., 392 So.2d 343 (Fla. 5th DCA 1981), the plaintiff filed a claim on
her mother’s policy, who she was living with at the time, after becoming injured in an
accident. The defendant insurance company denied her claim, finding that she was not
a member of her mother’s household because she was “only temporarily estranged from
her husband.” Sanders, 392 So.2d at 344. The Florida trial and appellate courts agreed,
citing cases from Washington and Texas state courts that held “whether a wife is no
longer a member of her husband’s household is not just physical absence, but physical
absence coupled with an intent to return.” Id. at 344-45.
The instant action is distinguishable in several respects. To begin, in Sanders, the
plaintiff was not residing in her mother’s household because of a domestic violence
injunction filed against her by her husband. This is significant because without such an
injunction, the plaintiff could seemingly reunite with her husband and return to his
household at any moment. Here, a court order forbid Plaintiff from returning to his exwife’s household for at least two years, and he seemingly could not reunite with his exwife because their communication was limited to emails regarding their children.
Moreover, unlike the instant action, the Sanders Court fails to mention that divorce
proceedings had begun between the plaintiff and her husband. This is also significant
because it is doubtful that the plaintiff and her husband would be considered only
“temporarily separated” if such proceedings were ongoing.

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Likewise, in Row v. United Services Auto. Ass’n, 474 So.2d 348 (Fla. 1st DCA
1985), the plaintiff, a father who maintained an automobile insurance policy, filed suit
against his insurer, on behalf of his son’s estate, seeking insurance coverage for his son
after he was tragically killed in a hit-and-run accident. In doing so, the plaintiff averred
that his son was part of his household for the purposes of his insurance policy because
his son lived in one of twelve apartments that the plaintiff owned and also resided in. Id.
at 349. The trial court found that living in separate apartments in the same complex did
not amount to sharing a household as required by the policy, but the appellate court
disagreed. Id. The appellate court focused on the fact that all the family members who
lived in the apartment complex, although in different apartments, shared keys to the family
apartments and could come and go as they please. Id. at 350. The court also noted that
the son continued to rely on the plaintiff for support both financially and emotionally, as
he was suffering from a mental illness at the time of his death. Id.
Interestingly, the Row Court made clear that in Florida, “what constitutes residency
in a household is a mixed question of law and fact to be determined from the facts of each
individual case.” Id. at 349. And the facts here are easily distinguishable from Row. To
be sure, Plaintiff was not residing in the same apartment complex or other multi-family
housing unit as his ex-wife. He was not able to come and go from his ex-wife’s household
as he pleased – not only because of the injunction, but also because his ex-wife changed
the locks shortly after the sheriff escorted him out. It is also unlikely that Plaintiff was
relying on his ex-wife for emotional support, as their communications were limited to
emails regarding their children. Nor does it appear that he was relying on her financially

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either, as he signed his own one-year lease without any form of assistance from his exwife.
Altogether, the facts of this case illustrate that Plaintiff did not “reside” in his exwife’s household at the time of his tragic accident. While Plaintiff attempts to analogize
cases dealing with military deployments and temporary estrangements, the fact remains
that these cases are easily distinguishable. Plaintiff was not temporarily removed from
his wife’s household; he was forcibly removed by a court order that was accompanied
with the initiation of divorce proceedings. The fact that Plaintiff still had personal items at
his ex-wife’s household speaks more to the urgency with which he was removed from the
household than to any possibility that he would return. There is no doubt that Plaintiff
suffered a tragic accident. But the facts before the Court clearly indicate that at the time
of the accident, Plaintiff was no longer considered a member of his ex-wife’s household
– physically or mentally. Consequently, Plaintiff is not entitled to underinsured motorist
benefits under his ex-wife’s automobile insurance policy.
Accordingly, it is now
ORDERED:
Defendant's Motion for Summary Judgment Declaring No Uninsured Motorist
Coverage (Doc. #29) is GRANTED. All pending motions are DENIED AS MOOT. The
Clerk is directed to CLOSE this action and enter judgment accordingly.
DONE and ORDERED in Fort Myers, Florida, this 15th day of June, 2015.

Copies: All Parties of Record

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