American Economy Insurance Company v. Traylor/Wolfe Architects, Inc. et al
Filing
43
ORDER granting 22 Plaintiff's Motion for Summary Judgment; finding as moot 21 Plaintiff's Motion to Strike/Exclude Expert Witness Richard Brock and Memorandum of Law in Support. The Clerk is directed to enter judgment in favor of Plaintiff and against Defendants as stated in the Order. Signed by Judge Timothy J. Corrigan on 8/6/2014. (BJB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
AMERICAN ECONOMY INSURANCE
COMPANY,
Plaintiff,
v.
Case No. 3:12-cv-1094-J-32JBT
TRAYLOR/WOLFE ARCHITECTS,
INC., a Florida corporation, RICKY
LANE TRAYLOR, an individual, and
PATRICK WHELAN, an individual,
Defendants.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT AND MOTION TO EXCLUDE EXPERT WITNESS
The plaintiff insurance company in this declaratory judgment action moves for
summary judgment because it believes the automobile accident at the heart of the
underlying state court action is not covered by its insurance policy.
Plaintiff
separately moves to exclude the expert testimony offered by one of the defendants on
the grounds that the expert is unqualified to provide the opinion offered and that the
opinion is unsupported by the facts. Only one defendant opposes the motions, the
individual injured in the accident. The defendant argues that the facts do implicate
coverage and that its reliable expert testimony helps prove that.
The Court held a hearing on these motions on June 12, 2014, the record of which
is incorporated herein. (Hr’g Tr., Doc. 38.) Upon review of the parties’ submissions
and oral arguments, the applicable law, and the record, the Court rules as follows.
I.
BACKGROUND
On July 31, 2012, Patrick Whelan filed a personal injury lawsuit against Ricky
Lane Traylor and Traylor/Wolfe Architects, Inc. (“Traylor/Wolfe”) in the Circuit Court
for the Fourth Judicial Circuit in Duval County, Florida relating to a March 7, 2011
automobile accident involving Whelan and Traylor. (Compl. ¶ 8, Doc. 1.) Whelan
alleges in his state court complaint that Traylor negligently operated his 2004 Ford
Expedition by making an improper left turn in front of Whelan as he was driving his
motorcycle, causing the front of Whelan’s motorcycle to strike the side of Traylor’s
vehicle and resulting in personal injuries to Whelan. (Id. at 10-11.) Whelan brings
one count for negligence against Traylor and another count for negligence against
Traylor/Wolfe based on its alleged vicarious liability for Traylor’s negligence as its
employee. (Id. at 11-12.) Plaintiff American Economy Insurance Company filed this
declaratory judgment suit against Traylor/Wolfe, Traylor, and Whelan seeking a
declaration that it had no duty to defend or indemnify either Traylor/Wolfe or Traylor
under a business owner’s insurance policy it issued to Traylor/Wolfe. (Id. at 2, 8.)
American Economy now moves for summary judgment, arguing that there can
be no genuine dispute that it is not obligated under the “Hired Auto and Non-Owned
Auto Liability” endorsement and amendatory endorsement to the policy to provide
either a defense to Traylor/Wolfe or Traylor in the underlying lawsuit or indemnity for
any damages from the accident. (Mot. for Summ. J., Doc. 22; Reply to Mot. for Summ.
J., Doc. 32.) Whelan responds that the allegations in the state court complaint and
the actual facts developed in discovery do support coverage or at least create a genuine
issue of fact preventing the entry of summary judgment for American Economy.
2
(Resp. in Opp’n to Mot. for Summary J., Doc. 27.)
II.
STANDARD OF REVIEW
“When the only question a court must decide is a question of law, summary
judgment may be granted.” Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290
(11th Cir. 2011). “The interpretation of an insurance contract is a question of law.”
N.H. Indem. Co. v. Scott, 910 F. Supp. 2d 1341, 1344 (M.D. Fla. 2012) (quotations
omitted).
“Summary judgment is appropriate in declaratory judgment actions
seeking a declaration of coverage when the insurer’s duty, if any, rests solely on the
applicability of the insurance policy, the construction and effect of which is a matter
of law.” Northland Cas. Co. v. HBE Corp., 160 F. Supp. 2d 1348, 1358 (M.D. Fla.
2001) (citation omitted).
Even though American Economy has moved for complete summary judgment in
this case, and only Whelan, not Traylor or Traylor/Wolfe, has responded, the Court
cannot simply enter summary judgment against a party as unopposed, but must still
consider the merits of the motion and the evidence submitted in support to determine
whether summary judgment is appropriate. Mann v. Taser Int’l, Inc., 588 F.3d 1291,
1303 (11th Cir. 2009).
III.
ANALYSIS
American Economy contends that neither the allegations of the underlying state
complaint nor the facts revealed in discovery establish any duty to defend or indemnify
on its part. (Doc. 22 at 1-2.) The underlying state complaint alleges that Traylor
was an executive officer of Traylor/Wolfe and the owner of the 2004 Ford Expedition
at the time of the accident, which, American Economy claims, are enough to exclude
3
him from qualifying as an insured under the terms of the Hired Auto and Non-Owned
Auto Liability endorsement and to establish that there is no duty to defend. (Id. at
9-10; Doc. 32 at 3-4.)
American Economy further argues that the actual facts
demonstrate that, contrary to the allegations in the state complaint, Traylor was not
using the vehicle for a business purpose at the time of the accident, which would also
mean he is not an insured and would move the vehicle outside the definition of a “nonowned auto” covered by the endorsement. (Doc. 22 at 11-20; Doc. 32 at 4-10.) Thus,
according to American Economy, it has no duty to indemnify either Traylor/Wolfe or
Traylor and any prior duty to defend it might have had would cease once it is held to
have no duty to indemnify. (Doc. 22 at 9; Doc. 32 at 1.)
In response, Whelan urges the Court to limit its focus to only the allegations in
the state complaint and the language of the policy. (Doc. 27 at 6-7, 10.) In his view,
the allegations establish that Traylor, not Traylor/Wolfe, owns the vehicle and that he
was using it in the course of his work for Traylor/Wolfe at the time of the accident.
These allegations sufficiently fall within the language of the policy to trigger a duty to
defend, particularly because, in Whelan’s view, the policy exclusion of owners of hired
and non-owned autos does not apply to an executive officer like Traylor. (Id. at 8-9.)
But if the Court must look beyond the state complaint at the actual facts, Whelan
argues that there is at least a genuine issue as to whether Traylor was using the
vehicle in connection with the business of Traylor/Wolfe. 1 (Doc. 27.)
Whelan has not filed his own motion for summary judgment, though, at a
couple points in his response brief, he does request the Court to enter an order finding
that American Economy has a duty to defend the state lawsuit (Doc. 27 at 4, 20).
1
4
A.
Duty to Indemnify
The parties agree, and the case law confirms, that Florida law applies to this
diversity insurance contract case. (Doc. 22 at 7; Doc. 27 at 5); Hartford Accident &
Indem. Co. v. Beaver, 466 F.3d 1289, 1291 (11th Cir. 2006). Florida law provides that
an insurer’s “duty to defend an insured is determined solely from the allegations in
the complaint against the insured, not by the true facts of the cause of action against
the insured, the insured’s version of the facts or the insured’s defenses.” State Farm
Fire & Cas. Co. v. Steinberg, 393 F.3d 1226, 1230 (11th Cir. 2004) (citation omitted);
Nat’l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So. 2d 533, 535 (Fla. 1977). The
duty to indemnify, on the other hand, “is not determined by the allegations in the
complaint, but is instead controlled by the actual facts of the underlying lawsuit.”
Scottsdale Ins. Co. v. GFM Operations, Inc., 789 F. Supp. 2d 1278, 1285 (S.D. Fla.
2011) (citing Underwriters at Lloyds London v. STD Enters., Inc., 395 F. Supp. 2d
1142, 1147 (M.D. Fla. 2005)); State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.
2d 1072, 1077 n.3 (Fla. 1998).
American Economy has thus far offered a defense under a reservation of rights
in the underlying state court action, but contends in its motion that it has no duty to
defend or indemnify. Citing to an accurate statement of Florida law that the duty to
defend is gleaned from the four corners of the complaint in the underlying action,
Whelan suggests that the Court look no further.
It is true that, under Florida law, for there to be a duty to indemnify, there must
first be a duty to defend. Wilson ex rel. Estate of Wilson v. Gen. Tavern Corp., 469 F.
Supp. 2d 1214, 1218 (S.D. Fla. 2006). But even if there is a duty to defend, it “does
5
not continue indefinitely” and cuts off once “it is certain that the claim is not covered
by the policy at issue.” Scottsdale Ins. Co., 789 F. Supp. 2d at 1284. “Put another
way, ‘the duty to defend ceases when it is shown that there is no potential for coverage,
i.e, when there is no duty to indemnify.’” Id. (quoting Underwriters at Lloyds London,
395 F. Supp. 2d at 1146 and citing Sinni v. Scottsdale Ins. Co., 676 F. Supp. 2d 1319,
1329 (M.D. Fla. 2009); First Specialty Ins. Corp. v. 633 Partners, Ltd., 300 F. App’x
777, 777-78 (11th Cir. 2008)).
Discovery in this case is over, and the record is complete. Thus, the Court now
must determine if the “actual facts” establish that American Economy has an
obligation under the policy to indemnify either Traylor or Traylor/Wolfe. 2 If it does,
it must, of course, continue to defend. But if there is no duty to indemnify, American
Economy’s duty to defend ceases as well.
1.
The Insurance Policy
American Economy issued Business Owners policy number BP-761449-3 to
Traylor/Wolfe with a policy period of August 27, 2010 to August 27, 2011. (Doc. 1 at
14-101; Doc. 1-1.) The policy includes a “Hired Auto and Non-Owned Auto Liability”
endorsement and an amendment to the endorsement that extend the coverage to
Additionally, American Economy acknowledged at oral argument that a
ruling in its favor on the duty to indemnify would render unnecessary a ruling on its
argument regarding the application to the allegations in the underlying complaint of
policy exclusions for executive officers and other persons operating their own autos.
(Hrg. Tr. 10, June 12, 2014, Doc. 38.) Moreover, American Economy concedes in its
briefs that these owners exclusions would not resolve the issue of coverage for
Traylor/Wolfe anyway. (Doc. 32 at 4.) The Court agrees on both points and therefore
resolves the motion based on the duty to indemnify, rather than on the applicability
of the exclusions.
2
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include “‘bodily injury’ or ‘property damage’ arising out of the maintenance or use of a
‘hired auto’ 3 by you or your ‘employees’ in the course of your business” (Doc. 1-1 at 20),
or “arising out of the use of any ‘non-owned auto’ in your business by any person other
than you; or any ‘non-owned’ auto by you or your employees for the purpose of picking
up, delivering or road testing the ‘non-owned auto.’”
(Doc. 1-1 at 4.)
The
endorsement and the amendatory endorsement together also identify “Who Is An
Insured” and what is a “hired auto” and a “non-owned auto”:
2.
Paragraph C. Who Is An Insured in Section II – Liability,
is replaced by the following:
Each of the following is an insured under this endorsement
to the extent set forth below:
a.
You; 4
b.
Any other person using a “hired auto” with your
permission;
c.
For a “non-owned auto,” any partner or “executive
officer” of yours, but only while such “non-owned
auto” is being used in your business; and
d.
Any other person or organization, but only for their
liability because of acts or omissions of an insured
under a., b. or c. above. . . .
....
C.
The following additional definitions apply:
....
Elsewhere, the policy defines “auto” as “a land motor vehicle, trailer or
semitrailer designed for travel on public roads, including any attached machinery or
equipment. But ‘auto’ does not include ‘mobile equipment.’” (Doc. 1 at 69.)
3
The policy earlier defines “you” as “the Named Insured shown in the
Declarations” (Doc. 1 at 28), which is Traylor/Wolfe here (Doc. 1 at 21).
4
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2.
“Hired Auto” means any “auto” you lease, hire or borrow.
This does not include any “auto” you lease, hire or borrow
from any of your “employees” or members of their
households, or from any partner or “executive officer” of
yours.
3.
“Non-Owned Auto” means any “auto” you do not own,
lease, hire or borrow which is used in connection with your
business. However, if you are a partnership, a “non-owned
auto” does not include any “auto” owned by any partner.
(Doc. 1-1 at 21.)
The amendatory endorsement includes, among other things, a
modified definition of “non-owned auto”:
Paragraph C.3 is replaced with the following:
3.
“Non-Owned Auto” means any “auto” you do not own,
lease, hire or borrow which is used in connection with your
business.
This includes “autos” owned by your
“employees,” partners (if you are a partnership), members
(if you are a limited liability company), or members of their
households but only while used in your business affairs.
(Doc. 1-1 at 4.)
No one disputes that the vehicle here does not qualify as a “hired auto” under
the endorsement. For the accident to be covered by the “non-owned auto” liability
endorsement, it must have arisen “out of the use of any ‘non-owned auto’ in
[Traylor/Wolfe’s] business by any person other than you.” (Doc. 1-1 at 4 (emphasis
added).)
Moreover, an auto can qualify as a non-owned auto only if “used in
connection with [Traylor/Wolfe’s] business,” and the autos of employees like Traylor
only qualify “while used in [Traylor/Wolfe’s] business affairs.” (Id. at 4 (emphasis
added).) As an executive officer, Traylor himself would only qualify as an insured
“while the ‘non-owned auto’ is being used in [Traylor/Wolfe’s] business.” (Id. at 21
8
(emphasis added)). 5
American Economy argues that Traylor’s undisputed testimony shows that the
accident did not occur while he was using the vehicle in Traylor/Wolfe business, but
while he was on a personal trip. Whelan responds with facts that he feels call into
question Traylor’s testimony on this issue.
2.
The Facts
American Economy and Whelan both rely almost exclusively on Traylor’s
deposition testimony and, other than their characterizations of the trip he was on at
the time of the accident, they agree on nearly all the facts. Thus, unless indicated
otherwise, the facts set forth here are undisputed.
At the time of the March 7, 2011 accident, Traylor/Wolfe was an architecture
firm that Traylor operated out of an office in his home in Jacksonville, Florida.
(Traylor Dep. 5-6, 8, 12, 47, Doc. 20-1.) The firm has since been dissolved, and Traylor
is now retired. (Id. at 6, 29-30.) But at the time of the accident, he was the president
and the sole architect in the firm. (Id. at 5-6, 45.) The firm’s only other employee
was his wife Millie, who worked at most ten hours a week as a secretary and
bookkeeper. (Id. at 5-7.)
Most days of the week, Traylor would try to work from 8:00 a.m. to 5:00 p.m. so
as to be available to the firm’s clients, but he did not clock-in or otherwise record his
Neither American Economy nor Whelan suggests that there is any
significance to the differences between “used in your business” and “used in connection
with your business,” or between “business” and “business affairs.” American
Economy stated at oral argument it was unaware of any case law construing these
formulations differently and could not think of a way to do so. (Doc. 38 at 18.)
5
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hours on a daily basis. (Id. at 48, 50-52.) As the firm’s owner, working out of his
home, he would regularly take time out of the day for personal reasons. (Id. at 48,
73, 113.) By 2011, work had fallen off such that Traylor worked perhaps fifteen-totwenty hours a week. (Id. at 11-12.) At that time, Traylor/Wolfe’s sole client was
Winn-Dixie, and the sole project the firm had for Winn-Dixie was a large
interior/exterior remodeling project in Fern Park, Florida. (Id. at 11.)
In 2004, Traylor bought a 2004 Ford Expedition, using his own personal funds
for a down payment and financing the rest through a bank. (Id. at 8-10.) He and his
wife were the only names on the title at the time of the accident, and he paid for all its
servicing from his personal funds. (Id. at 9, 67.) He also purchased an automobile
liability policy for the vehicle from State Farm, naming only him and his wife as
insureds. (Id. at 9-10.) Traylor/Wolfe did not own or lease the Expedition (id. at 66),
but it was the vehicle Traylor would primarily use for any Traylor/Wolfe business (id.
at 60-61).
Traylor kept a mileage log of every work-related trip, whether it was a trip to
the post office or a trip to the store to pick up office supplies, so that he could be
reimbursed from Traylor/Wolfe. (Id. at 57-60.) Of the approximately seventy-five
mileage log entries in 2010 through March 2011, all but three were for trips made in
the Ford Expedition. (Id. at 61-62.) The other trips he made in a 2004 Chrysler
Sebring he owned that his wife primarily used unless the Expedition was in the shop.
(Id. at 10, 61-62.) Still, Traylor did not use the Expedition solely for work, but also
regularly for personal purposes. (Id. at 113-14.)
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On March 7, 2011, the day of the accident, Traylor’s wife was out of town visiting
the couple’s daughter and her family in North Carolina. (Id. at 19.) Traylor was still
in Jacksonville. His plan for the day was to replace his cell phone at a local AT&T
store on Southside Boulevard in Jacksonville.
(Id. at 14-15.)
He had no other
business appointments or meetings scheduled that day. (Id. at 19.)
The cell phone was in his wife’s name (id. at 15-16, Ex. 5), but he used it for
both personal and business purposes (id. at 13, 75-76). For instance, between 8:36
a.m. and 9:38 a.m. that morning, Traylor made or received four calls on his cell phone
that related to work on the Winn-Dixie project in Fern Park. (Id. at 68-72.) But the
first call he made on that morning on that cell phone was to his wife in North Carolina
to see how things were going with their grandsons. (Id. at 67.) The phone number
he called for his wife was to a cell phone that at some point was listed to Traylor/Wolfe.
(Id. at 54-55.) Relying on a printout from a website and a search on LexisNexis,
Whelan posits that the number is still listed as belonging to Traylor/Wolfe. (Id. at
Ex. 4; Doc. 27 at 16; Doc. 27-1.)
Traylor left his house on March 7 at approximately 10:00 a.m. and headed
straight for the AT&T store, approximately ten minutes away. (Doc. 20-1 at 74, 77.)
During his trip to the store, he made another short call to the cell phone his wife uses.
(Id. at Ex. 5.) At the store, he bought a replacement for the cell phone he had been
using, paying for it with a check on a Traylor/Wolfe checking account. (Id. at 58.)
On the firm’s 2011 tax return, Traylor listed the cell phone as a company expense (id.
at 59); he testified at his deposition that he had intended to reimburse Traylor/Wolfe
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for the phone from his personal funds, but never did (id. at 58-59). The phone account
was still in his wife’s name, though. (Id. at 14-15.) He was at the AT&T store for
about twenty-to-twenty-five minutes before he left. (Id. at 15.)
After leaving the AT&T store, Traylor continued to head further away from his
house and towards a condominium development in the Palencia neighborhood north
of St. Augustine, Florida. (Id. at 14, 16-17.) Palencia was roughly twenty-to-twentyfive minutes away from the AT&T store. (Id. at 16.) Other than the trip to Palencia,
Traylor had no other plans for the day. (Id. at 27-28.)
Traylor and his wife had been to the Palencia neighborhood before, and his
purpose in going back was to look at the condos in this unfinished development to see
if construction had continued and with some eye for possibly investing personally in a
unit. (Id. at 17, 78-79, 89.) Traylor/Wolfe had never worked in Palencia, and it had
no plans for any work in the neighborhood.
(Id. at 18.)
Traylor’s personal
investment idea had not developed much further than a vague idea; he had not made
a plan to purchase a unit, had not spoken with any real estate agents, had not gone
into a unit, and had not thought about financing beyond that he would have used his
personal funds, not Traylor/Wolfe’s. (Id. at 79-82.) During his deposition, Traylor
described the trip to Palencia that day as “just trying to fill up time.” (Id. at 83.)
On the way to Palencia, Traylor spoke with his wife another three times while
she was on her cell phone and made one call to his daughter. (Id. at 24-25, 98, Ex. 5.)
He described each of these call as personal conversations. (Id. at 24-25.) His call to
his daughter started at 10:58 a.m. and he spoke with her and his wife during that call
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for four minutes and fifty-nine seconds. (Id. at 98, Ex. 5.) When he hung up, he had
nearly arrived at Palencia and had already pulled his vehicle into the left turn lane at
the intersection for the neighborhood. (Id. at 98.) Less than a minute later, the
accident occurred as he was completing the turn across the opposite lanes of traffic
and Whelan’s motorcycle collided with the side of the 2004 Ford Expedition. (Id. at
90, 98-99.)
3.
“Used in Your Business,” “Used in Connection with Your
Business,” or “Used in Your Business Affairs”
Since it is undisputed that, at the time of the accident, Traylor owned the
vehicle and was an employee and executive officer of Traylor/Wolfe, the deciding factor
on coverage for Traylor/Wolfe is whether the vehicle was being “used in,” or “in
connection with,” Traylor/Wolfe’s business or “business affairs” at the time of the
accident.
There is no evidence, other than speculation, to support the conclusion that
Traylor’s trip to Palencia served any purpose other than his own personal interest.
His main purpose in making the trip was to “fill up time” by checking on the status of
the Palencia condo development. (Id. at 83.) He had some idea about potentially
purchasing a Palencia unit with his own funds, but it is clear from his deposition
testimony that he had not taken any steps to make this more than a vague idea.
Contrary to Whelan’s suggestion, the possibility that, if Traylor decided at some point
in the future to purchase a unit, and if he wanted to make some changes to the unit,
and if he was allowed to make changes (which was not certain), that he might have
used contractor contacts he knew from Traylor/Wolfe, does not somehow insert a
13
business purpose into his trip. (Id. at 79-85.) Nor does Traylor’s guess that, if all
these hypotheticals occurred, he might use his architecture license if called upon to do
so for some reason.
(Id. at 85-86.)
Whelan “‘cannot create a genuine issue of
material fact through mere speculation or the building of one inference upon another.’”
Hess Corp. v. Moran Towing Corp., No. 3:08-cv-12-J-32MCR, 2009 WL 2365687, at *2
(M.D. Fla. July 30, 2009) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).
Based on the evidence, Traylor’s travels on the day of the accident are more
properly seen as two separate trips, rather than one trip with a dual purpose.
Assuming that traveling to the AT&T store to replace the cell phone was a business
trip, once he bought the new phone and left the store, the business purpose was
accomplished, and the business trip was over. His second trip to Palencia was purely
personal.
The auto was no longer being used for a business purpose, and was
therefore no longer covered by the endorsement. See El Viejo Arco Iris, Inc. v. Luaces,
395 So. 2d 225, 226 (Fla. 1st DCA 1981) (holding that claimant was no longer in the
course of his employment once he had accomplished his assignment).
For that
reason, Zipperer v. Peninsular Life Ins. Co., 235 So. 2d 473 (Fla. 1970) and the other
cases Whelan cites for the “dual purpose doctrine” (see Doc. 27 at 17-19) are
distinguishable.
Even if the trip could legitimately be classified as a single trip with the primary
business purpose of buying a new cell phone, Traylor’s side-trip to Palencia was a clear
deviation from that mission. “The established rule in Florida is that when one is
engaged in a purely private mission he is not within the scope of his employment until
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he returns to the employer’s place of business or point of departure.” Rodriguez v.
Tri-State Carriers, Inc., 792 So. 2d 1253, 1254 (Fla. 1st DCA 2001) (quotations
omitted). Though not an insurance coverage case, Sunshine Jr. Food Stores, Inc. v.
Thompson, 409 So. 2d 190 (Fla. 1st DCA 1982) provides a useful illustration. 6 There,
a district manager for a chain of stores had been inspecting the work of the clerks of
one store within his district when he decided to take a drive to “kill time” until he
could return after closing. Id. at 190. While on his drive, he was in an accident. Id.
The court concluded that, though his initial trip had a business purpose, this drive
was a deviation from the course of his employment. Id. at 191.
In this case, Traylor had similarly departed from any business purpose to
pursue his own personal interests. As described above, there was no business reason
for the trip to Palencia. Moreover, while the AT&T store was about ten minutes from
his home, Palencia was another twenty-to-twenty-five minutes further away from his
home office. (Doc. 20-1 at 28.)
In the underlying tort action, in which Whelan is the plaintiff, Traylor and
Traylor/Wolfe are defendants, and American Economy is not a party, the state court
denied a motion for summary judgment filed by Traylor/Wolfe that raised issues
similar to those addressed here, but in the context of Traylor/Wolfe’s vicarious liability
American Economy and Whelan both cite to authority from the insurance,
tort, and worker’s compensation contexts in discussing whether Traylor’s vehicle was
being used in connection with Traylor/Wolfe business. (See Doc. 22 at 11-15; Doc. 27
at 17-20.) While there are important distinctions between these areas of law, such
authority is nevertheless helpful in deciding this issue.
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for the accident. 7 Reviewing much the same record as this Court, 8 the state court
found that “issues of material fact remain on whether Mr. Traylor was within the
course and scope of his employment at the time of the accident for the purpose of
determining Traylor/Wolfe’s vicarious liability to [Whelan].”
(3/17/14 4th Judicial
Cir. Order, Doc. 40-1 at 67-69.)
While not binding on this Court, the decision of the learned state court judge
does give the undersigned pause. Nevertheless, the Court believes its decision here
is the right one. Though they both rely largely on the same facts, the legal issue of
insurance coverage in this declaratory judgment action is distinct from the issue of
vicarious liability in the state tort action.
For purposes of coverage under the
insurance policy at issue in this action, this Court’s reading of the Traylor deposition
convinces it that there is no issue of material fact and, as a matter of law, the vehicle
was not being used “in Traylor/Wolfe’s business,” “in connection with Traylor/Wolfe’s
business,” or “in Traylor/Wolfe’s business affairs” when the accident occurred. The
Court thus concludes that the policy does not provide coverage for the accident.
American Economy owes no duty to indemnify, and any duty to defend now comes to
an end. 9
Whelan provided the Court a copy of the state court order during the hearing
(Doc. 38 at 13), and, at the Court’s request, submitted after the hearing the parties’
state court briefs and the hearing transcript, as well. (See Doc. 40-1.)
7
The state court materials did include new affidavits from Traylor and Brock,
but they do not add anything substantive or otherwise change the Court’s analysis of
any of the issues addressed in this Order.
8
American Economy also contends that, in addition to the vehicle needing to
have been used in Traylor/Wolfe’s business, it needed to have been under
Traylor/Wolfe control to some extent for the accident to be covered by the policy. (Doc.
9
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B.
Plaintiff’s Motion to Strike/Exclude Richard Brock
American Economy separately moves to exclude the testimony of Whelan’s
accounting expert Richard Brock.
Because the Court determines that summary
judgment is due to be entered, the motion to exclude is moot. It is worth noting,
though, that only American Economy mentions Brock at all in the summary judgment
briefing, understandably attempting in its initial motion to preemptively challenge
Brock’s testimony.
(Doc. 22 at 16-19.)
Whelan’s written response to summary
judgment never cites Brock’s testimony or even mentions Brock (see Doc. 27), and
neither did counsel for Whelan during oral argument (see Doc. 38). In any event, the
Court’s ruling on summary judgment renders moot the motion to exclude.
Accordingly, it is hereby
ORDERED:
1.
Plaintiff's Motion for Summary Judgment (Doc. 22) is GRANTED.
2.
Plaintiff’s Motion to Strike/Exclude Expert Witness Richard Brock and
Memorandum of Law in Support (Doc. 21) is MOOT.
3.
The Clerk is directed to enter judgment in favor of Plaintiff American
Economy Insurance Company and against Defendants Traylor/Wolfe Architects, Inc.,
Ricky Lane Taylor, and Patrick Whelan, stating that each party shall bear its own fees
and costs in this case, and declaring that, pursuant to Business Owner policy number
22 at 11, 20 (citing three out-of-state, unpublished opinions).) Because the Court
concludes that the vehicle was not being used for a business purpose at the time of the
accident, it does not decide whether this is an accurate statement of Florida law or
whether Traylor/Wolfe had exerted a right of control over the vehicle at the time of the
accident.
17
02-BP-761449-3, American Economy Insurance Company owes neither Traylor/Wolfe
Architects, Inc. nor Ricky Lane Traylor indemnity for any claims arising out of the
March 7, 2011 accident and that any duty to defend has now ended.
DONE AND ORDERED at Jacksonville, Florida this 6th day of August, 2014.
bjb.
Copies:
Counsel of record
18
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