Peak Property and Casualty Insurance Corporation v. Ensslin et al

Filing 95

ORDER denying 70 Motion for summary judgment; granting 76 Motion for summary judgment. The Clerk of Court shall enter a final judgment in favor of Plaintiff Peak Property and Casualty Insurance Corporation and against Defendant David Ensslin, individually, and as Parent and Natural Guardian of D.E., a minor, and close this case. Signed by Judge Elizabeth A. Kovachevich on 5/21/2014. (JM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PEAK PROPERTY AND
CASUALTY INSURANCE
CORPORATION,
Plaintiff,
v.

CASE NO. 8:12-CV-2739-T-17TBM

DAVID ENSSLIN, etc.,
etal.,

Defendants.

/

ORDER
This cause is before the Court on:

Dkt. 64
Dkt. 66
Dkt. 67
Dkt. 68
Dkt. 69
Dkt. 70
Dkt. 72
Dkt. 75
Dkt. 76
Dkt. 77
Dkt. 78
Dkt. 79
Dkt. 80
Dkt. 82
Dkt. 83
Dkt. 84
Dkt. 85

Affidavit - Green
Affidavit - Learey
Deposition - Landrum
Deposition - Learey
Affidavit - Ensslin
Motion for Summary Judgment - Ensslin
Statement of Undisputed Facts - Ensslin
Statement of Undisputed Facts - Peak Property and Casualty
Motion for Summary Judgment - Peak Property and Casualty
Deposition - Ensslin
Deposition - Little
Exhibit X (Sealed)
Exhibit Z (Sealed)
Opposition
Statement of Disputed Facts - Ensslin
Statement of Disputed Facts - Peak Property and Casualty
Opposition

In the Second Amended Complaint (Dkt. 27), Plaintiff Peak Property and
Casualty Insurance Corporation (“Peak”) seeks a declaratory judgment that the

Case No. 8:12-CV-2739-T-17TBM
insurance policy issued by Plaintiff to Defendant David B. Ensslin does not provide
insurance coverage for the September 17, 2012 motor vehicle accident. Plaintiff Peak
alleges that the policy was a “Named Non-Owner Policy” which provides the selected
coverage for only the named insured while driving non-owned cars. Plaintiff Peak relies
on the application signed by Defendant Ensslin and the Named Non-Owner
Endorsement included in the policy issued to Defendant Ensslin, which replaces the
definition of “insured person,” so that an “insured person” means “you while you are
using your insured car.” The Endorsement amends certain definitions within the policy
and amends the insuring language of Part I. Plaintiff Peak contends that the Policy
issued to Defendant Ensslin only covers him, the named insured, and only while he is
driving non-owned vehicles; since Defendant Ensslin was not operating the motor
vehicle involved in the accident of September 17, 2012, the Policy does not provide
coverage.

Plaintiff Peak attached a copy of the Policy, including the Application, to the
Second Amended Complaint. In the Second Amended Complaint, Plaintiff Peak
alleges that, as a result of a clerical error, the Application and Policy Declarations
identify the insured as “David Enfflin.”

Plaintiff Peak is seeking a declaratory judgment that Peak has no duty to defend
and no duty to indemnify as to the actual claims of Richard Foust and Doris Foust and
the potential claims of June Carol Jerkins, Martha Criswell, Roman Criswell, the Estate
of Dawn Ensslin and the Estate of De.E. Plaintiff Peak further seeks a declaratory
judgment that Peak has no duty to defend and no duty to indemnify David B. Ensslin,
individually, and as Parent and Natural Guardian of D.E. for any claims by any person
or entity arising out of the September 17, 2012 accident.

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Case No. 8:12-CV-2739-T-17TBM
The Court notes that a Notice of Voluntary Dismissal has been filed as to
Defendant June Carol Jerkins.

Defendant David B. Ensslin has filed a Counterclaim (Dkt. 40) in which
Defendant Ensslin seeks a declaratory judgment that the Policy attached to the
Counterclaim provides bodily injury liability coverage to D.E. with limits of $100,000 per
person and $300,000 per occurrence as to the September 17, 2012 accident, and an
award of attorney’s fees and costs. In April of 2012, Defendant Ensslin applied for a
policy of automobile liability insurance with limits of $100,000 per person and $300,000
per occurrence with Peak Property and Casualty Insurance Corporation, through its
authorized agent, Pamela Little and/or Florida Authorized Insurance Agency, Inc. (Dkt.
40, p. 9). Defendant David B. Ensslin disputes that he signed any form of
acknowledgment agreeing that the liability policy would cover the named insured only.
(Dkt. 40, p. 10). Defendant Ensslin contends that the Named Non-Owner Endorsement
is not applicable because he was not provided with a copy of the endorsement at the
time he purchased the policy and did not sign an acknowledgment of the endorsement.
I. Standard of Review

Summary judgment should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c).
The plain language of Rule 56(c) mandates the entry of
summary judgment after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the
burden of proof at trial.”

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Celotex Corp. v. Catrett. 477 U.S. 317 (1986).
The appropriate substantive law will guide the determination of which facts are
material and which facts are...irrelevant. Anderson v. Liberty Lobby. Inc.. 477 U.S.
242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences
are resolved in favor of the non-movant. See Fitzpatrick v. Citv of Atlanta. 2 F.3d 1112,
1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.” See Anderson. 477 U.S. at 248.
But, “[i]f the evidence is merely colorable...or is not significantly probative...summary
judgment may be granted.” ]d. at 249-50.

II. Statement of Facts

For the purposes of the dispositive motions for summary judgment, the following
facts are not disputed:

1.

The Amended Complaint in the underlying action, Case No. 53-2013CA-

004653-0000-00, Section 11, filed in Polk County Circuit Court, includes the claims of
Richard G. Foust and Doris M. Foust against David B. Ensslin, as Parent/Natural
Guardian of D.E., a minor, for negligence and loss of consortium, for which the Fousts
seek an award of damages, plus costs and interest since the date of the collision,
September 17, 2012 (Dkt. 87-1). The Amended Complaint alleges that, on that date,
D.E. negligently operated and/or maintained a motor vehicle so that it collided with a
vehicle driven by Doris M. Foust near the intersection of U.S. Highway 17 and County
Road 640 in Polk County, Florida.

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Case No. 8:12-CV-2739-T-17TBM
2. Defendant Ensslin testified that his daughter, D.E., has lived with him since
July, 2010. (Dkt. 75-1, p. 40).

3. Defendant Ensslin testified that Defendant’s daughter, D.E., was thirteen
years old at the time of Defendant’s application for insurance. (Dkt. 75-1, p. 31.)

4. At the time of the accident in the underlying action, September 17, 2012, D.E.
was fourteen years old. (Dkt. 70, p. 1).

5. Defendant Ensslin testified that his daughter, D.E., never drove any vehicle
while she was in his care, and denied knowledge of whether D.E. had ever driven any
other vehicle while she was in someone else’s care. (Dkt. 75-1, p. 45).

6. Defendant Ensslin’s application for insurance does not include any reference
to D.E.

7. There is no evidence which establishes that Defendant Ensslin spoke with
Pamela Little about D.E and D.E.’s presence as a member of Defendant Ensslin’s
household.

8. Defendant David B. Ensslin is self-employed; he operates a lawn
maintenance business for individual homes. (Dkt. 75-1, pp. 9-10).

9. Defendant Ensslin testified that he does not own a vehicle, and uses the truck
of a friend who resides in his household to operate his lawn maintenance business.
(Dkt. 75-1,pp. 8-9).

10. In 2011, Defendant Ensslin owned a truck, but crashed it in a DUI incident.
(Dkt. 75-1, pp. 10-11). Defendant Ensslin’s driver’s license was suspended in
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Case No. 8:12-CV-2739-T-17TBM
connection with the DUI. (Dkt. 75-1, p. 7).

11.

Defendant Ensslin testified that he was able to work after the DUI conviction

by working with a friend who also operates a lawn maintenance business; they
combined their two companies until April, 2012, when Defendant Ensslin got his driver’s
license back. (Dkt. 75-1, p. 11).

13. Defendant Ensslin testified that he received a letter from the State of Florida
advising Defendant of the insurance coverage required to get his license back.
Defendant Ensslin made phone calls to get prices on insurance policies that provided
the coverage. (Dkt. 75-1, p. 7). Florida Authorized Insurance Agency quoted the
lowest price for the coverage, around $430.00 for six months. (Dkt. 75-1, p. 18).

14. On April 6, 2012, Defendant Ensslin applied for the coverage required,
100/$300,00 liability insurance. Defendant Ensslin paid the premium in cash. (Dkt. 751, P- 18).
15. Defendant Ensslin testified that Pamela Little asked Defendant “a few
questions; first my driver’s license number, my address, my name. And she put it all in
the computer, printed it out, and said “This is your premium.” I paid her, and that was
it.” (Dkt. 75-1, p. 20). Defendant Ensslin did not read anything at the time he applied
for the insurance. (Dkt. 75-1, p. 41), and signed what Pamela Little handed to him
without reading it. (Dkt. 75-1, p. 42).

16.

At his deposition, Defendant Ensslin testified:

Q. Did you expect that your policy would cover your 13year-old daughter?
A. Obviously it did not even cross my mind.

Case No. 8:12-CV-2739-T-17TBM
Q. Well, that’s not what I’m asking. I’m not asking whether
you thought about it. I’m asking, did you go in thinking that
this policy would cover your 13-year-old daughter for
driving?
[Objection]

A. I didn’t think about it even covering her. I wasn’t worried
about whether insurance was going to cover her, with her
being 13.
Q. Who were you worried about it covering?
A. Me being able to get my license back to drive.
Q. All right. That’s what you wanted from the insurance,
right? You wanted the insurance to cover you?
A. Right.
(Dkt. 75-1, pp. 31-32).
17. Defendant Ensslin testified that he took a paper given to him by Pamela
Little to send to the State of Florida for proof of insurance. (Dkt. 75-1, p. 15).

18. Defendant Ensslin denied that Pamela Little told him that the insurance
policy covered only him. (Dkt. 75-12, p. 21).

19. Defendant Ensslin testified that an insurance card was mailed to him about
a week after the meeting on April 6, 2012. (Dkt. 75-1, pp. 25-26).

20. Defendant Ensslin testified that he assumed that the insurance policy he
purchased was mailed to him. (Dkt. 75-1, p. 28).

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Case No. 8:12-CV-2739-T-17TBM
21. Defendant Ensslin testified that he renewed the same policy in April, 2013.
(Dkt. 75-1, p. 35).

22. Defendant Ensslin testified that a renewal notice was mailed to him, and he
paid the renewal premium of $429.00. (Dkt. 75-1, p. 29).

23. Defendant Ensslin testified that he did not ever read the insurance cards,
the insurance policy, the FR-44 form, or any notes of the April 6, 2012 meeting. (Dkt.
75-1, p. 30).

24. Defendant Ensslin testified that, to his understanding, he bought the
required coverage, 100/$300,000 liability, and knew that it covered him. (Dkt. 750-1, p.
30).

25. Pamela Little holds a 220 license to sell property and casualty insurance in
the State of Florida, and has had that license since 1993. (Dkt. 75-2, p. 19.) Her
agency, Florida Authorized Insurance Agency, is licensed by the State of Florida to sell
property and casualty insurance at its particular location. (Dkt. 75-2, p. 20).

26. Pamela Little testified that she does not have a specific recollection of
selling the subject insurance policy to Defendant Ensslin and does not have a specific
memory of saying anything to Defendant Ensslin. (Dkt. 75-2, p. 16).

27. Pamela Little testified that her customary procedure when a telephone
inquiry is made is to fill out an application with the information provided, and provide a
quote; the applicant then comes to the office, and signs the application. (Dkt. 75-2, p.
17). The applicant pays for the insurance, Ms. Little binds coverage, and the applicant
is provided with whatever comes with that policy, such as a copy of the application, the
policy jacket, insurance cards. (Dkt. 75-2, p. 18).
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Case No. 8:12-CV-2739-T-17TBM
28. Pamela Little testified that she did not deal with anyone at Peak in order to
write the subject insurance policy. (Dkt. 75-2, p. 13).

29. Pamela Little testified that she has the ability to take in an application and
issue a policy on behalf of Peak. (Dkt. 75-2, p. 15).

30. Pamela Little testified that she sells insurance for other companies in
addition to Sentry companies: MGA, Titan, Victorian, Occidental, Progressive, and
others. (Dkt. 75-2, p. 40). Ms. Little testified that she does not have to ask permission
from each company before binding coverage; she finds the right fit for the customer and
then binds coverage with that company. (Dkt. 75-2, p. 41).

31. Pamela Little testified that Defendant Ensslin got a copy of his insurance
card, his explanation of coverages and his FR-44. (Dkt. 75-2, p. 18).

32. Florida Uniform Financial Responsibility Certificate FR-44 (Dkt. 77-2) dated
4/6/2012 provides:

This certification is effective on the above certification Effective Date and
continues until cancelled or terminated in accordance with the financial
responsibility laws and regulations of Florida. The insurance certified is
provided by an:

X

33.

OPERATOR’S POLICY - Applicable to any vehicle not registered to
the above listed person and subject to the terms and conditions
defined in the operator’s insurance policy.
The Policy Declarations for Policy 093034732 printed on 4/6/2012

designates the Named Insured as “David B. Enfflin, 3810 Rob Way, Lakeland, FL
33810-1224. The Policy Declarations further designate the “Named Non-Owner” as
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Case No. 8:12-CV-2739-T-17TBM
“David B. Enfflin,” DOB 6/24/1972. In a separate box in bold printing, the Policy
Declarations Page provides:

“ The coverages listed on this Declarations Page apply for only
the named insured while driving non-owned cars.”
(Dkt. 77-3).

34. The Policy Declarations Page provides that the following policy forms and
endorsements apply to the coverages as listed in the COVERAGE section:
BFP2(10/07)
FL1101 (05/11)
NN01-FL(09/10)
PAP1 (03/08)
PIP1 -FL(09/10)
PPA-FL(09/10)
(Dkt. 77-3). The Florida Office of Insurance Regulation has approved the NN01FL(09/10) form, the Named Non-Owner Endorsement, and the FL1101 (05/11) form,
Application for Insurance.

35. Richard Learey, Peak’s corporate representative, testified that Peak did not
file or try to receive approval from the Florida Office of Insurance Regulation for the
Named Non-Owner Acknowledgment form. (Dkt. 75-3, p. 22).

36. Richard Learey, Peak’s corporate representative, testified that Peak offers
only an insurance policy that includes the Named Non-owner Endorsement to an
applicant who does not own a vehicle. (Dkt. 75-3, pp. 72-74). In some states, Peak
offers a broad form policy, a named driver policy covering liability for any vehicle, owned
and non-owned, but not in Florida. (Dkt. 75-3, pp. 73-74).

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Case No. 8:12-CV-2739-T-17TBM
37. Richard Learey, Peak’s corporate representative, testified that the Named
Non-Owner Acknowledgment form is not a policy form, the form is used at the
discretion of the agent, and there is nothing in writing mandating when or when not to
use it. (Dkt. 75-3, p. 94).

38.

The insurance cards for Policy 093034732, effective date 4/6/2012,

provide:

INSURED
ENFFLIN, DAVID B
Named Non-Owner Policy
This policy provides coverage for only the named insured while driving
non-owned cars.
(Dkt. 77-4).
39.

The Application Confirmation for Policy No. 93034732 signed by Defendant

Ensslin on 4/6/2012 (Dkt. 76-1, p. 2) provides:

I understand this application when signed becomes a part of the policy.
I hereby apply to the Company for a policy of insurance. All facts reported
in this application are true and complete to the best of my knowledge. I
understand this policy to be issued in reliance of (sic) these facts being
true.
I understand that I must report to the Company all persons age 14 or older
who live with me temporarily or permanently, including all children at
college, and all persons who are regular operators of any vehicle to be
insured.
I understand that this policy does not take effect until I have both signed
this application and paid the premium due at inception......

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I HEREBY APPLY TO THE COMPANY FOR A POLICY OF INSURANCE.
THE ABOVE FACTS ARE TRUE TO THE BEST OF MY KNOWLEDGE. I
UNDERSTAND THIS POLICY TO BE ISSUED IN RELIANCE OF (sic)
THESE FACTS BEING TRUE.
Defendant Ensslin signed the Application on 4/6/2012.

40. The Application of 4/6/2012 provides a certification by Pamela Little:
I HEREBY CERTIFY THAT I HAVE ASKED THE APPLICANT ALL OF
THE QUESTIONS LISTED ON THE APPLICATION AND HAVE
RECORDED THEIR ANSWERS TO THESE QUESTIONS. Agents have
the authority to bind coverage no earlier than the time and date the
application is signed by the applicant and the agent and a premium
deposit accompanies the application.
Pamela Little signed the certification on 4/16/2012. (Dkt. 76-1, p. 2)

41. Policy No. 93034732 includes the following provisions:
DEFINITIONS USED THROUGHOUT THIS POLICY
(2)

“ You” and “ your” mean the person shown as the named
insured on the Declarations Page and that person’s spouse
if residing in the same household. You and your also
means any relative of that person if they reside in the same
household, providing they or their spouse do not own a
m otor vehicle.

(3)

“ Relative” means a person living in your household related
to you by blood, marriage or adoption, including a ward or
foster child. Relative includes a minor under your
guardianship who lives in your household. Any relative who
is age fourteen (14) or older must be listed on the
application or endorsed on the policy prior to a car accident
or loss.

(9)

“ Your insured car” means:
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Case No. 8:12-CV-2739-T-17TBM
(A)

Any car you own that is described on the Declarations Page
and any car you replace it with. A replacement car will have
the same coverage as the car it replaced. If you want
coverage to apply to a replacement car, you must notify us
within fourteen (14) days of its acquisition. You must pay
any additional premium charges for coverage for the
replacement car.

(B)

Any additional car of which you acquire ownership during
the policy period, provided we insure all other cars you own
on the date you acquire the additional car......

(C)

Except for collision or comprehensive coverage under Part
IV - Car Damage Coverage of this policy, any car not owned
by you while being used temporarily with the permission of
the owner as a temporary substitute for any other vehicle
described in the Declarations Page because of its
withdrawal from normal use due to breakdown, repair,
servicing, loss or destruction.

(D)

Any u tility trailer you own, or any u tility trailer not owned
by you while being used with permission of the owner,
except for collision or comprehensive under Part IV - Car
Damage Coverage of this policy.

Part I - LIABILITY COVERAGE
This coverage applies only if a premium is shown for this coverage on the Declarations
Page.
We will pay damages for which any insured person is legally liable because of bodily
injury and/or property damage caused by a car accident arising out of the ownership,
maintenance or use of a car or u tility trailer. We will settle any claim or defend any
lawsuit which is payable under the policy, as we deem appropriate.

Additional Definitions Used in This Part Only
As used in this Part,
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Case No. 8:12-CV-2739-T-17TBM
(1)

“ insured person” or “ insured persons” means:
(A) You,
(B) Any person using your insured car.
(C) Any person or organization with respect only to legal
liability for acts or omissions of:
(1) Any person covered under this Part while
using your insured car; or
(2) You under this Part while using any car or
u tility trailer other than your insured car
if the car or u tility trailer is not owned or
hired by that person or organization......

(Dkt. 76-3. pp. 2,3).
Form NN01-FL(9/10), the Named Non-Owner Endorsement - Florida, provides:
The provisions and exclusions that apply to the Personal Auto Policy and the
Amendatory Endorsement also apply to this endorsement, except as changed by this
endorsement.

Definitions Used Throughout This Policy
The following definitions are amended in or added to your policy:
(2)

“ You” and “ your” means only the person shown as the
named insured on the Declarations Page.

(9)

“ Your insured car” means:
(A)

A non-owned car which you are using with
the permission of the owner;

(B)

Any car of which you acquire ownership during
the policy period. For coverage to apply under
Part I - Liability coverage, you must, however,
notify us within fourteen (14) days of its
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Case No. 8:12-CV-2739-T-17TBM
acquisition. Car Damage coverage will apply
to the newly acquired car only if you ask us to
provide such coverage and we agree to do so.
You must pay any additional coverage for the
newly acquired car.
(17)

“ Non-owned car” means:
(A)
(B)

A car not owned or leased by you;
A car not owned or leased by members of the
household in which you reside; or
A car not available for your regular use.

(C)
PART I - LIABILITY

This section of your policy is amended as follows:
We will pay damages for which you are legally liable because of bodily
injury and/or property damage caused by a car accident arising out of
the use of your insured car. We will settle any claim or defend any
lawsuit which is payable under the policy.

Additional Definitions Used in This Part Only is replaced in its entirety
by the following:
As used in this Part, “ insured person” means you while you are using
your insured car.

41.

The Producer Agreement (Dkt. 79 (Sealed)) of 4/20/2007 between Peak

Property and Casualty and Florida Authorized Insurance Agency states:

1. Authority: The Company hereby grants authority to the Producer
for policies o f insurance in the territories, lines o f business, and
classifications, in accordance with the underwriting rules, limitations
and premium rates, established by Company and provided to
Producer in writing or electronic format.

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Company authorizes Producer to:
(a)

Solicit, accept and forward to Company applications for
insurance and endorsements, and to bind coverage in
accordance with the underwriting rules and limitations
prescribed by Company, as may be amended from time
to tim e.....

42. The Florida Auto Guide (Dkt. 80(Sealed)) provides:
Underwriting Rules

Driver Exclusions

All household members who do not drive a motor vehicle
should be listed as a non driver on the policy.

Final Underwriting Authority
We reserve the right to make final underwriting decision on
all applications. A combination of factors may cause an
application to be unacceptable even though not specified in
this rule guide’s Underwriting Rules. All requests for
exceptions must be made through your product
management team.
Material Misrepresentation of Risk
Florida Statute 627.409 recognized the insured’s
responsibility and obligation to truthfully and fully complete
an application for insurance. Material misrepresentation on
the application may affect the insured’s eligibility to receive
the benefits of the insurance contract. We will cancel the
policy should misrepresentation be discovered.
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Information that is most often misrepresented includes:
Drivers - obtain names and information on all persons age
14 or older residing in the household (licensed or not) and
others operating the vehicle.

Endorsements

Endorsements requesting the deletion of a driver or lowering
the limits of liability must be signed by all named insured’s.

43.

In response to the request of Gary Landrum, Pamela Little faxed a copy of

the application of Defendant Ensslin on 11/14/2012. (Dkt. 67-5) The fax includes a
copy of Defendant Ensslin’s signed application (2 pages)(Form 1101(5/11)), the signed
rejection of UM coverage (1 page)(Form 1201(9/10)) and the Named Non-Owner
Acknowledgment (1 page)(Form GN1008(2/11)). The pages are out of order; the first
page of Defendant’s application is page 3, and the second page is page 6.

III. Discussion
The Court has subject matter jurisdiction pursuant to 28 U.S.C. Sec. 1332(a). A
federal court sitting in diversity applies the choice-of-law rules of the forum state.
Rando v. Government Employees Ins. Co.. 56 F.3d 1173,1176 (11th Cir. 2009). Florida
follows the ]ex jod contractus rule, which provides that the law of the jurisdiction where
the contract was executed governs the rights and liabilities of the parties in determining
an issue of insurance coverage, id. at 1176. The parties do not dispute that Florida
law applies. The Court will apply Florida law in determining insurance coverage under
the subject Policy.

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Case No. 8:12-CV-2739-T-17TBM
A. General Principles

The construction of an insurance policy is a question of law for the court. Jones
v. Utica Mutual Ins. Co.. 463 So.2d 1153, 1157 (Fla. 1985); Roberts v. Florida Lawyer’s
Mutual Ins. Co.. 839 So.2d 843, 845 (Fla. 4th DCA 2003). Insurance contracts are
construed according to their plain meaning. Garcia v. Fed. Ins. Co.. 969 So.2d 288,
291 (Fla. 2007). If the policy language is not ambiguous, courts apply the plain
language of the policy. HC Waterford Props.. Inc. v. Mt. Hawlev Ins. Co.. 2009 WL
2600431, *3 (S.D. Fla. 8/21/2009). A policy is ambiguous when the language is
subject to “more than one reasonable interpretation, one providing coverage and the
[sic] another limiting coverage....” Auto-Owners Ins. Co. v. Anderson. 756 So.2d 29, 34
(Fla. 2000). Any ambiguities in an insurance policy are to be interpreted liberally and in
favor of the insured and strictly against the insurer. See Flores v. Allstate Ins. Co.. 819
So.2d 740, 744 (Fla. 2002); Anderson. 756 So.2d at 34; McCrearv v. Fla. Residential
Prop. & Cas. Joint Underwriting Ass'n. 758 So.2d 692, 694-95 (Fla. 4th DCA 1999).
[Exclusionary provisions which are ambiguous or otherwise susceptible to more than
one meaning must be construed in favor of the insured, since it is the insurer who
usually drafts the policy. See Excelsior Ins. Co. v. Pomona Park Bar & Package Store.
369 So.2d 938, 942 (Fla. 1979). However, “[o]nly when a genuine inconsistency,
uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of
construction is the rule apposite. It does not allow courts to rewrite contracts, add
meaning that is not present, or otherwise reach results contrary to the intentions of the
parties.” ]cL Simply because a provision is complex and requires analysis for
application, it is not automatically rendered ambiguous. See Eagle American Ins. Co.
v. Nichols. 814 So.2d 1083,1085 (Fla. 4th DCA 2002). When construing insurance
policies, courts are to read the policy as a whole and attempt to give every provision its
full meaning and operative effect. See Auto-Owners Ins. Co. v. Anderson. 756 So.2d
29, 34 (Fla. 2000); see also Sec. 627.419(1), Ha. Stat. (2002). In other words, a single
policy provision should not be read in isolation and out of context, for the contract is to

Case No. 8:12-CV-2739-T-17TBM
be construed according to its entire terms, as set forth in the policy and amplified by the
policy application, endorsements, or riders. See Swire Pacific Holdings. Inc. v. Zurich
Ins. Co.. 845 So.2d 161, 166 (Fla. 2003)(citing Sec, 627.419(1). Florida Statutes
(2002)).
Under Florida law, an insured bears the burden of proving that a claim against
the insured is covered by the insurance policy. LaFaroe Corp. v. Travelers Indem. Co..
118 F.3d 1511,1516 (11th Cir.1997) (internal citations omitted). The burden of proving
an exclusion to coverage is, however, on the insurer. Id.

B. Named Non-Owner Policy

Plaintiff Peak argues that the plain language of the Application, Policy
Declarations and Named Non-Owner Endorsement establish that the subject Policy is a
Named Non-Owner Policy which should be enforced as written, providing coverage only
for the named insured, David B. Ensslin, while driving non-owned cars.

Defendant Ensslin argues that the Named Non-Owner Endorsement is
ambiguous, that an insured is left to guess whether the definition of “You” and “your”
was amended in or added to the Policy, and the ambiguity should be construed against
Plaintiff Peak.
The Court must construe the Policy as a whole, and attempt to give every
provision its full meaning and operative effect, including any endorsements. The Court
finds that the Named Non-Owner Endorsement is not ambiguous because it states “the
following definitions are amended in or added to your policy....” Definitions (2) and (9)
are present in the “Definitions Used Throughout This Policy” Section of the Policy.
Those Definitions are amended by the Definitions in the Endorsement. There is no
Definition (17) in the Policy; that Definition is added to the Policy by the Endorsement.
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Case No. 8:12-CV-2739-T-17TBM
The application states on its face that the subject Policy is a Named Non-Owner
Policy. The Policy Declaration sheet states that coverages listed apply for only the
named insured when driving non-owned cars. The FR-44 provided to Defendant Ensslin
states on its face that Peak has issued an operator’s policy which applies to any vehicle
not registered/titled to the listed person, “David B. Enfflin,” and subject to the terms and
conditions defined in the operator’s insurance policy. The insurance cards issued to
Defendant Ensslin state on their face that the subject Policy is a Named Non-Owner
Policy which provides coverage for only the named insured while driving non-owned
cars. Defendant Ensslin has testified that he never read any of the above documents.
Defendant Ensslin does not contend that he signed documents that he was prevented
from reading by Plaintiff Peak or Peak’s agent, or which Peak or Peak’s agent induced
him not to read. After Defendant’s application and premium were transmitted to Plaintiff
Peak, Peak subsequently issued the subject Policy and mailed it to Defendant Ensslin;
Defendant Ensslin has renewed the same policy. Defendant Ensslin’s decision not to
read the policy does not alter its terms.
Defendant Ensslin does not argue that the application for insurance was
ambiguous or that he did not sign it. The application for insurance states:

“I understand that I must report to the Company all persons age 14 or
older who live with me temporarily or permanently, including all children at
college, and all persons who are regular operators of any vehicle to be
insured.”
The Court is not aware of any evidence that establishes that Defendant Ensslin
complied with the above requirement.

C. Named Non-Owner Acknowledgment
Defendant Ensslin argues that there is a significant disputed issue of fact as to

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Case No. 8:12-CV-2739-T-17TBM
whether the Named Non-Owner Acknowledgment was required to issue the Named
Non-Owner Endorsement. Defendant Ensslin relies on the testimony of Pamela Little,
the agent who bound coverage on behalf of Plaintiff Peak, who testified at her
deposition as follows:
Q. Okay. In order for you to have this policy with this endorsement, you
needed Mr. Ensslin to sign the acknowledgment, which is the second
page of Exhibit A, correct?
A. Correct.
Q. Which is why you purport to have him sign the acknowledgment on
April 6 A. Correct
Q. - 2012, correct?
A. I would think so, yeah.
Q. So this acknowledgment is the - is the document that breaths life into
this endorsement, which is the last page of Exhibit A.
[Objection]
A. I assume so. I’m not - 1assume so, yeah.
(Dkt. 75-2, pp. 36-37).

Defendant Ensslin argues that Plaintiff Peak’s policies require that the applicant
sign the Named Non-Owner Acknowledgment. Defendant Ensslin relies on the
provision for Driver Exclusions in the Underwriting Rules of Florida Auto Guide and the
requirements of the Endorsement section:
You cannot exclude:
The named insured or spouse
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Case No. 8:12-CV-2739-T-17TBM
Drivers on policies which carry PIP/PD coverage only
Drivers when there is an SR22 or FR44 filing on the policy
You can exclude:
Other drivers in the household
Attach a signed and completed driver exclusion form, including the date of
birth and relationship to the insured, with an explanation for the exclusion,
to the application.
To delete exclusion, we require a request signed by the named insured to
add the excluded driver to the policy and all appropriate driver information.
All household members who do not drive a motor vehicle should be listed
as a non driver on the policy.
(Dkt. 80, p. 4). Peak has obtained approval from the Florida Office of Insurance
Regulation for a Named Driver Exclusion Endorsement (Dkt. 67-7, pp. 26-27, NDE1aFL(12/09), NDE1-FL(12/09)), but that endorsement is not involved in this case. An
exclusionary endorsement might read as follows:

“It is hereby agreed and understood that no coverage shall apply for this
policy for occurrences which take place while any vehicle is operated by
[person excluded].”
See, e.g., Bankers & Shippers Ins. Co. of New York v. Phoenix Assur. Co. of New York.
210 So.2d 715 (Fla. 1968). At the time of Defendant Ensslin’s application, D.E. was
not an “excluded driver,” but a “non-driver,” i.e. a “person who resides in the household
but is physically unable to drive, or has never been licensed and never drives.” (Dkt.
80, p. 7). Therefore, a signed driver exclusion form was not required. Richard Learey,
corporate representative for Peak, testified that the Named Non-Owner
Acknowledgment is not a policy form, is not a form approved by the Florida Office of
Insurance Regulation, and the use of the form is discretionary with the agent. Richard
Learey further testified that the Named Non-Owner Policy was the only policy Peak
could have offered to Defendant Ensslin, given that Defendant Ensslin did not own a
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Case No. 8:12-CV-2739-T-17TBM
motor vehicle.

The Court finds Defendant Ensslin’s reliance on the Driver Exclusion and
Endorsement provisions of the Florida Auto Guide to be misplaced. This coverage
dispute does not involve the deletion of a driver or the lowering of liability limits. The
underwriting procedures of Plaintiff Peak do not require a signed Named Non-Owner
Acknowledgment for the Named Non-Owner Endorsement to take effect.

C. Scope of Pamela Little’s Authority

Defendant Ensslin argues that Pamela Little was Plaintiff Peak’s agent for all
purposes regarding the sale of the subject insurance policy to Defendant Ensslin.
Defendant Ensslin argues that it is undisputed that Pamela Little was exclusively in
control of Defendant Ensslin’s insurance application, and provided the Named NonOwner Acknowledgment, on which Defendant Ensslin contends his forged signature
was placed, to Plaintiff Peak. Defendant Ensslin contends that Pamela Little’s
testimony that she needed Defendant Ensslin’s signature on the Named Non-Owner
Acknowledgment is binding on Peak, since Pamela Little acted as Peak’s agent.

Plaintiff Peak disputes that Pamela Little was Peak’s agent for all purposes as to
the sale of the subject insurance policy to Defendant Ensslin. Plaintiff Peak argues that
Pamela Little did not testify that Plaintiff Peak required Defendant Ensslin to sign the
Named Non-Owner Acknowledgment, but only agreed with the question that she
needed Defendant Ensslin to sign the Named Non-Owner Acknowledgment. Richard
Learey, Plaintiff Peak’s corporate representative, testified that the use of the Named
Non-Owner Acknowledgment is left to the agent’s discretion. When questioned about
whether the Named Non-Owner Acknowledgment “breathes life” into the Named NonOwner Endorsement, Pamela Little testified “I assume so, yeah.” (Dkt. 75-2, pp. 3637). The Court understands “breathes life” to mean that, without the Named Non23

Case No. 8:12-CV-2739-T-17TBM
Owner Acknowledgment, the Named Non-Owner Endorsement is not effective.
Plaintiff Peak argues that its Underwriting Rules do not require the execution of the
Named Non-Owner Acknowledgment. The Court has determined that a Named Driver
Exclusion Endorsement is different from the Named Non-Owner Acknowledgment form,
and is not involved in this case.

Whether a person acts as a broker or an agent is not determined by what he is
called, but is to be determined from what he does. RLI Insurance Co. v. Collado. 678
So.2d 1313, 1315-1316 (Fla. 2d DCA 1996V rev, granted. 691 So.2d 1079 (Fla. 1997).
The distinction between an insurance agent and an insurance broker is important,
because the acts of an agent are imputable to the insurer, and the acts of a broker are
imputable to the insured. Essex Insurance Co. v. Zota. 985 So.2d 1036,1046 (Fla.
2008).

Pamela Little testified that she is an independent insurance agent; she selects
the company which provides the best fit for her customer among the companies for
which she is authorized to bind coverage. Pamela Little further testified that she is not
an employee of Peak Property and Casualty, but is an agent for the Company, able to
take in an application and issue a policy. (Dkt. 75-2, p. 15). An independent insurance
agent can be the agent of either the insurer or the applicant. In Steele v. Jackson
National Life Insurance Company. 691 So.2d 525, 527 (Fla. 5th DCA 1997), the Court
states:
The general rule is that an independent agent or broker acts
on behalf of the insured rather than the insurer. In the
absence of special circumstances, the broker will be
considered the agent of the insureds as to matters
connected with the application and the procurement of the
insurance, despite the fact that the broker receives his or her
compensation from the insurer. However, an independent
insurance agent can be the agent of the insurance company
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Case No. 8:12-CV-2739-T-17TBM
for one purpose and the agent of the insured for another.

(Citations omitted). For example, when the insurance company is one of an agent’s
licensed companies, an independent insurance agent is an agent of the insurance
company rather than the insured, for the purpose of rejection of uninsured motorist
coverage. Travelers Insurance Company v. Quirk. 583 So.2d 1026 (Fla. 1991). Given
the possibility of dual agency, a determination that a particular agent is an insurance
broker may not conclude the issue of agency relationship. Almerico v. RLI Ins. Co.. 716
So.2d 774, 777 (Fla. 1998).

The Court notes that Pamela Little is in a contractual relationship with Plaintiff
Peak. Pursuant to the Producer Agreement, Pamela Little was the authorized agent of
Plaintiff Peak for the purpose of soliciting, accepting and forwarding the application of
Defendant Ensslin for the subject Insurance Policy, and binding coverage in
accordance with Peak’s underwriting rules and limitations on April 6, 2012. (Dkt. 79, p.
1). “Binding coverage” is not the same as “issuing a policy.” A binder is a contract
providing for interim insurance effective at the date of application for insurance, and
terminating at either completion or rejection of the principal policy, issued to provide
temporary coverage while the application for permanent insurance is pending. Frank v.
Travelers Indem. Co. of Hartford. Conn.. 310 So.2d 418, 419-420 (Fla. 3d DCA 1975).
Plaintiff Peak retained final underwriting authority as to the policy, pursuant to the
Producer Agreement. Pamela Little’s testimony that she was authorized to issue a
policy does not expand her authority beyond that outlined in the Producer Agreement.
The Court understands Pamela Little’s testimony that she was authorized to take in an
application and issue a policy to be merely a shorthand expression of Pamela Little’s
authority to bind coverage. The certification on Defendant Ensslin’s application
expresses Pamela Little’s authority to bind coverage rather than issue a policy.

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Case No. 8:12-CV-2739-T-17TBM
Plaintiff Peak does not dispute that Pamela Little acted in her capacity as an
agent of Plaintiff Peak when she forwarded Defendant Ensslin’s application and
supporting documents to Peak. The fact that Pamela Little sent the Named Non-Owner
Acknowledgment to Peak does not make the Named Non-Owner Acknowledgment a
part of Defendant Ensslin’s 2-page application, or establish that Plaintiff Peak required
the execution of the Named Non-Owner Acknowledgment. Pamela Little’s actual
authority as outlined in the Producer Agreement does not extend to establishing
underwriting rules; Pamela Little was authorized to solicit, accept and forward
applications for insurance and endorsements, and to bind coverage in accordance with
Peak’s underwriting rules and limitations. Pamela Little’s testimony that she needed
Defendant Ensslin to sign the Named Non-Owner Acknowledgment establishes only
that Pamela Little, in her capacity as agent for Peak, believed the Named Non-Owner
Acknowledgment was necessary in the subject transaction; it does not create an
underwriting rule that the Plaintiff Peak required the execution of the Named NonOwner Acknowledgment.

Defendant Ensslin’s application was an offer to contract for insurance; Plaintiff
Peak’s acceptance of the application created a legally enforceable contract. Pursuant
to Defendant Ensslin’s application and supporting documents, Plaintiff Peak issued an
operator’s policy, which is explicitly authorized by the Florida’s Financial Responsibility
law. See Florida Statutes 324.151(b), 324.022, 324.023. It is undisputed that
Defendant Ensslin required an FR-44 policy, that Defendant Ensslin did not own a
vehicle at the time of his application, that Defendant Ensslin signed the application for
the insurance policy and paid the premium, that Pamela Little took in Defendant
Ensslin’s application and bound coverage, and that Peak subsequently issued the
insurance policy for which Defendant Ensslin had applied, which included the Named
Non-Owner Endorsement, and which was mailed to Defendant Ensslin. Once a policy
is issued by the insurance company, the binder issued by the authorized agent is no
longer effective. Pursuant to Florida Statute 627.419 (1), Defendant’s application for
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Case No. 8:12-CV-2739-T-17TBM
insurance became part of the policy, but the Named Non-Owner Acknowledgment is not
part of the policy or application. As a matter of law, the insurer is entitled to rely on the
representations made by an applicant in the application for insurance. New York Life
Ins. Co. v. Nesoereira. 366 So.2d 859 (Fla. 3d DCA 1979).

The issue of agency is ordinarily a question of fact to be determined by the jury.
See Orlando Executive Park . Inc. v. Robbins. 433 So.2d 491, 494 (Fla. 1983). The
determination of an agency relationship can be resolved by summary judgment only
when the evidence is capable of just one interpretation. Folwell v. Bernard. 477 So.2d
1060 (Fla. 2d DCA 1985), rev, denied. 486 So.2d 595 (Fla. 1986). The Court does not
view the dispute as to the status of Pamela Little to be a material factual dispute. It is
not disputed that Pamela Little acted in her capacity as an agent of Plaintiff Peak for
those purposes indicated in the Producer Agreement. The Producer Agreement is
clear and unambiguous. A clear and unambiguous contract is the best evidence of
the intent of the parties, and its meaning and legal effect are questions of law for
determination by the Court. Jaar v. University of Miami. 474 So.2d 239, 242 (Fla.
3d DCA 1985). Plaintiff Peak does not require the execution of the Named Non-Owner
Acknowledgment under its Underwriting Rules, and Pamela Little’s belief that it was
required does not change Peak’s Underwriting Rules. The Named Non-Owner
Acknowledgment is not part of the application which Defendant Ensslin admits he
signed, and is not listed on the Policy Declaration Sheet as a form which applies to the
coverages listed in the Coverage Section of the Policy. If the Court assumes, for the
purpose of ruling on the pending motions for summary judgment, that Defendant
Ensslin’s signature was forged by Pamela Little on the Named Non-Owner
Acknowledgment, that does not have any impact on whether the Named Non-Owner
Endorsement was effective. Defendant Ensslin applied for coverage as a Named NonOwner, and that is the type of policy that Plaintiff Peak issued. The Named Non-Owner
Endorsement is a part of the subject Policy, and limits coverage to the Named Insured
while driving non-owned cars.
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Case No. 8:12-CV-2739-T-17TBM
The Court construes the Policy according to its plain meaning in finding that the
Policy provides coverage only to the named insured, David B. Ensslin, while driving
non-owned cars. After consideration, the Court grants the Motion for Summary
Judgment of Plaintiff Peak (Dkt. 76), and denies the Motion for Summary Judgment of
Defendant Ensslin, individually and as Personal Representative of the Estate of Dawn
Ensslin, and as Parent and Natural Guardian of D.E.(Dkt. 70). The Court finds that
Plaintiff Peak has no duty to defend and no duty to indemnify under Policy No.
093003472 for any claims or suits by any person or entity arising out of the September
17, 2012 motor vehicle accident. Accordingly, it is

ORDERED that Plaintiff’s Motion for Summary Judgment (Dkt. 76) is granted.
Plaintiff Peak Property and Casualty Insurance Corporation has no duty to defend and
no duty to indemnify under Policy No. 093003472 for any claims or suits by any person
or entity arising out of the September 17, 2012 motor vehicle accident. The Clerk of
Court shall enter a final judgment in favor of Plaintiff Peak Property and Casualty
Insurance Corporation and against Defendant David Ensslin, individually, and as Parent
and Natural Guardian of D.E., a minor. Defendant Ensslin’s Motion for Summary
Judgment (Dkt. 70) is denied.

DONE and ORDERED in Chambers, in Tampa, Florida on this
of May, 2014.
A

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