Jones v. Progressive Express Insurance Company

Filing 37

ORDER: Plaintiff Caleb Todd Jones's Motion for Partial Summary Judgment as to Defendant's First and Second Affirmative Defense (Doc. # 20 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 5/8/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CALEB TODD JONES,
Plaintiff,
v.

Case No. 8:16-cv-2675-T-33AAS

PROGRESSIVE EXPRESS INSURANCE
COMPANY,
Defendant.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Plaintiff

Caleb

Todd

Jones’s

Motion

for

Partial

Summary

Judgment (Doc. # 20), filed on March 14, 2017. Defendant
Progressive Express Insurance Company filed its response in
opposition on April 17, 2017. (Doc. # 28). Jones filed his
reply on May 1, 2017. (Doc. # 32). The Motion is denied.
I.

Background
Jones was operating a Graco Line Driver HD in the course

of his employment when an uninsured motorist struck him. (Doc.
# 20 at ¶ 1); (Doc. # 28 at 4). The Graco Line Driver HD is
a ride-on system that is attached to road-striping machines
in order to push or pull the road-striping machine. (Doc. #
20-1 at 3). The machine was owned by Jones’s employer (Doc.

# 20 at ¶ 1); (Doc. # 28 at 4), who held an insurance policy
through Progressive (Doc. # 35-1 at 73-148). The policy at
issue read in part:
“Auto” means a land motor vehicle or trailer
designed for travel on public roads, or any other
land vehicle that is subject to a compulsory or
financial responsibility law or other motor vehicle
insurance law in the state or province where it is
licensed or principally garaged. It does not
include mobile equipment.
. . . .
“Mobile equipment” means any of the following types
of land vehicles including, but not limited to, any
attached machinery or equipment:
a.
Bulldozers,
farm
implements
and
machinery, forklifts and other vehicles
designed for use principally off public roads;
b.
Vehicles you use solely on premises you
own or rent and on accesses to public roads
from these premises, unless specifically
described on the declarations page and not
defined as mobile equipment under other parts
of this definition;
c.
Any vehicle that travels on crawler
treads, or that does not require licensing in
the state in which you live or your business
is licensed;
d.
Vehicles, whether self-propelled or not,
used
primarily
to
provide
mobility
to
permanently attached:
(i) Power cranes, shovels,
diggers or drills; or

2 

loaders,

(ii) Road construction or resurfacing
equipment such as graders, scrapers or
rollers.
e.
Vehicles not described in Paragraphs a.,
b., c., or d. above that are not selfpropelled and are used primarily to provide
mobility to permanently attached equipment of
the following types:
(i) Air
compressors,
pumps
and
generators, including spraying, welding,
building
cleaning,
geophysical
exploration, lighting and well-servicing
equipment; or
(ii) Cherry pickers and similar devices
used to raise or lower workers.
f.
Vehicles not described in Paragraphs a.,
b., c., or d. above that are self-propelled
and used primarily for purposes other than
transportation of persons or cargo.
However, mobile equipment does not include
land vehicles that are subject to a compulsory or
financial responsibility law or other motor vehicle
insurance law in the state or province where it is
licensed or principally garaged. Land vehicles
subject to a compulsory or financial responsibility
law or other motor vehicle law are considered
autos.

(Doc. # 35-1 at 81-84).
The policy also included a Mobile Equipment as Insured
Autos Endorsement. (Id. at 137-38). The Mobile Equipment as
Insured Autos Endorsement read in part:
Except
as
specifically
modified
in
this
endorsement, all provisions of the Commercial Auto
Policy apply.

3 

. . . .
B.
When used in PART I - LIABILITY TO OTHERS,
insured auto also includes:
. . . .
4.
Any mobile equipment owned by you, or if
you have purchased Hired Auto or Non-owned
Auto coverage, leased or hired by you, when
subject
to
a
compulsory
or
financial
responsibility law or other motor vehicle
insurance law in the state or province where
it is licensed or principally garaged. This
does not change the effect of exclusion 13
concerning the operation of mobile equipment.
. . . .
The definition of “Insured” is deleted and replaced
by:
“Insured” means:
. . .
b.
if the named insured shown on the
Declarations Page is a corporation,
partnership, organization or any other
entity that is not a natural person, any
person occupying your insured auto,
temporary substitute auto, or a trailer
while attached to an insured auto.
For purposes of this definition, insured auto
includes mobile equipment owned by you, or if you
have purchased Hired Auto or Non-owned Auto
coverage, leased or hired by you, when it is subject
to a compulsory or financial responsibility law or
other motor vehicle insurance law in the state or
province where it is licensed or principally
garaged.
(Id.).

4 

Jones filed a claim against the policy but Progressive
denied coverage. (Doc. # 20 at ¶ 5); (Doc. # 28 at 4).
Thereafter, Jones filed an action against Progressive in
state court. (Doc. # 2). Progressive removed the action to
this Court premising jurisdiction on 28 U.S.C. § 1332. (Doc.
# 1).
In its answer, Progressive pled two affirmative defenses
that, when read together, assert Jones was not occupying an
insured auto, as defined in the policy, at the time of the
accident and therefore is not covered under the policy. (Doc.
# 11-1 at 3-4). Jones now seeks partial summary judgment as
to

Progressive’s

first

and

second

affirmative

defenses.

Progressive responded in opposition and Jones replied.
II.

Legal Standard
Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”

Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a

5 

reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact

6 

finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists

of

conclusional

However,

nothing

if

“more

allegations,”

the

than

summary

non-movant’s
a

repetition

judgment

is

response
of
not

his
only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
III. Analysis
“Under Florida law, an insurance policy is treated like
a contract, and therefore ordinary contract principles govern
the interpretation and construction of such a policy. . . .
A court’s inquiry therefore begins with a review of the plain
language of the insurance policy as bargained for by the
parties.” Great Am. Assurance Co. v. Sanchuk, LLC, No. 8:10cv-2568-T-33AEP, 2012 WL 5306354, at *6 (M.D. Fla. Oct. 26,
2012) (citations and internal quotation marks omitted). “[I]n
construing insurance policies, courts should read each policy
as a whole, endeavoring to give every provision its full
meaning and operative effect.” Shaw v. Nat’l Union Fire Ins.

7 

Co. of Pittsburgh, Pa., 605 F.3d 1250, 1252 (11th Cir. 2010).
“[I]f a policy provision is clear and unambiguous, it should
be enforced according to its terms . . . .” Taurus Holdings,
Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla.
2005).
Jones

argues

the

Graco

Line

Driver

HD

meets

the

definition of an insured auto under paragraph B(4) of the
Mobile Equipment as Insured Autos Endorsement. Paragraph B(4)
of the endorsement modifies the definition of insured autos,
as defined in the policy, to include: “Any mobile equipment
owned by you, or if you have purchased Hired Auto or Nonowned Auto coverage, leased or hired by you, when subject to
a compulsory or financial responsibility law or other motor
vehicle insurance law in the state or province where it is
licensed or principally garaged.” (Doc. # 35-1 at 137-38)
(original bolding removed).
Jones also argues the Graco Line Driver HD meets the
definition of an insured auto under a similarly phrased
provision, which relates to the meaning of insured:
insured auto includes mobile equipment owned by
you, or if you have purchased Hired Auto or Nonowned Auto coverage, leased or hired by you, when
it is subject to a compulsory or financial
responsibility law or other motor vehicle insurance
law in the state or province where it is licensed
or principally garaged.

8 

(Id. at 138) (original bolding removed).
The plain language of these provisions expands coverage
to mobile equipment (1) owned by the policy holder when the
mobile equipment is subject to a compulsory or financial
responsibility law or other motor vehicle insurance law in
the state where it is licensed or principally garaged and (2)
if the policy includes the Hired Auto or Non-owned Auto
coverage, leased or hired by the policy holder when the mobile
equipment

is

subject

to

a

compulsory

or

financial

responsibility law or other motor vehicle insurance law in
the state where it is licensed or principally garaged.
Jones’s contrary construction does not persuade the
Court, nor does his attempt to create an ambiguity. Under the
plain terms of the policy and the relevant endorsement, in
order for mobile equipment to be considered an insured auto
such mobile equipment must be subject to a compulsory or
financial responsibility law or other motor vehicle insurance
law

in

the

principally

state

or

garaged,

province
regardless

where
of

it

is

whether

licensed
it

is

or

owned,

leased, or hired by the policy holder. Jones has presented no
evidence that the Graco Line Driver HD was subject to a
compulsory or financial responsibility law or other motor

9 

vehicle insurance law in the state or province where it is
licensed or principally garaged. In fact, he argues the
opposite. (Doc. # 20 at 11) (“it is not designed and required
to be licensed upon a highway”). Therefore, Jones’s Motion is
denied.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Caleb Todd Jones’s Motion for Partial Summary
Judgment

as

to

Defendant’s

First

and

Second

Affirmative

Defense (Doc. # 20) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of May, 2017.

10