GEICO INDEMNITY COMPANY, Appellant, v. BRIAN WALKER, as

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GEICO INDEMNITY COMPANY,

Appellant,

BRIAN WALKER, as personal representative of the estate of SOPHIE C.

WALKER and as assignee of the estate of ANDRES IGNACIO

RODRIGUEZ GOMEZ, and CARLOS ENRIQUE GILL RAMIREZ a/k/a

CARLOS GILL,

Appellees.

No. 4D20-764

[May 12, 2021]

Appeal and cross-appeal from the Circuit Court for the Fifteenth

Judicial Circuit, Palm Beach County; James Nutt, Judge; L.T. Case No.

50-2016-CA-004453-XXXX-MB.

Richard A. Weldy, B. Richard Young, and Adam A. Duke of Young, Bill,

Boles, Palmer, Duke & Thompson, P.A., Miami, for appellant.

Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, & Littky-

Rubin, LLP, West Palm Beach, and Stephen A. Marino Jr., of Ver Ploeg &

Marino, P.A., Miami, and Jeff M. Brown of LaValle, Brown, & Ronan, P.A.,

Boca Raton, for appellee Brian Walker, as personal representative of the

estate of Sophie C. Walker and as assignee of the estate of Andres Ignacio

Rodriguez Gomez.

LEVINE, C.J.

In this case, we are asked to determine if a 1992 Porsche, made

available to the driver by the owner to use and take care of for ten years

without specific restrictions, was “furnished or available for regular use.”

We find that although the Porsche was understood by all to be a collector’s

car, it was still “available for regular use” to the non-owner driver and, as

such, was not covered by the driver’s insurance policy. Thus, we find the

trial court erred and reverse the trial court’s granting of partial summary

judgment for appellee and direct the trial court to enter final judgment for

appellant.

This appeal arises out of a single-vehicle automobile accident resulting

in the death of both occupants: Andres Ignacio Rodriguez Gomez (“the

driver”) and Sophie C. Walker (“the passenger”). In April 2016, the

passenger’s estate filed a wrongful death action against the driver’s estate

as well as the owner of the vehicle, the driver’s stepfather.

At the time of

the accident, the driver was insured under an automobile insurance policy

with GEICO. However, the vehicle involved in the accident, a 1992

Porsche, was not listed under the GEICO policy as an insured vehicle.

Instead, the vehicle was listed in the stepfather’s automobile insurance

policy with Allstate, which also listed the driver as an insured driver on

that policy.

GEICO denied coverage under the driver’s policy because the subject

vehicle was not a listed vehicle on its policy. GEICO advised the driver’s

estate that it disclaimed any liability and obligations under the policy with

respect to the incident because the subject vehicle did not meet the

definition of an owned, non-owned, or temporary substitute vehicle. At

that time, Allstate had appointed defense counsel for the driver’s estate to

defend against the wrongful death suit.

In August 2016, the driver’s and the passenger’s estates entered into a

settlement agreement to resolve the wrongful death claim. The settlement

reflected the parties’ belief that GEICO’s denial of coverage and refusal to

defend were without merit. The settlement provided that the parties would

submit to a binding arbitration to determine the amount of damages for

the wrongful death claim against the driver’s estate. The arbitration

resulted in an arbitration award of $7,722,150 in total damages for the

passenger’s wrongful death claim against the driver. Pursuant to the

terms of the settlement, the driver’s estate assigned its rights and causes

of action against GEICO to the passenger’s estate. The passenger’s estate

then dismissed its wrongful death claim as to the driver with prejudice.

Thereafter, appellee, as both the personal representative of the

passenger’s estate and the assignee of the driver’s estate, amended the

complaint to reflect the assignment of rights and to add claims against

GEICO for breach of duty to defend (count II) and breach of duty to

indemnify (count III). Relevant to this appeal, count III alleged that the

driver’s GEICO insurance policy provided coverage for the underlying

claim and that therefore GEICO breached its duty to indemnify the driver

The stepfather, Carlos Enrique Gill Ramirez, has not filed a brief in this appeal

but was named as a defendant below and thus is included as an appellee

pursuant to Florida Rule of Appellate Procedure 9.020(g)(2).

against the passenger’s covered claim and to make its policy limits

available in the settlement of such claim.

In August 2018, GEICO moved for summary judgment, arguing that

the undisputed facts reflected that there was no coverage under the GEICO

policy for the subject loss. GEICO explained that its policy provided

coverage for loss arising out of the ownership, maintenance, or use of the

owned auto or a “non-owned auto.” There was no dispute that the subject

vehicle did not qualify as an “owned auto” as defined under the driver’s

GEICO policy. As for coverage for use of a “non-owned auto,” such was

defined by the GEICO policy as follows:

Non-owned auto means a private passenger, farm or

utility auto or trailer not owned by, furnished or available

for regular use of either you or your relative, other than a

temporary substitute auto. An auto rented or leased for

more than 30 days will be considered as furnished or available

for regular use.

(underlined emphasis added).

GEICO argued the above referenced language was clear and

unambiguous and that under the undisputed facts, it was entitled to

judgment in its favor as a matter of law as to coverage because the subject

vehicle did not meet the definition of a “non-owned auto” under its policy.

GEICO asserted that the facts established the driver’s possession, access

to, and freedom to use the subject vehicle without restriction, such that

the vehicle was “furnished or available” for the driver’s regular use.

Specifically, GEICO pointed to the deposition testimony of the owner of the

vehicle, the driver’s stepfather, which established that the stepfather gave

the subject vehicle to the driver to use and take care of; that the driver had

kept the subject vehicle for ten years; that the driver had his own set of

keys to the vehicle; that the stepfather never restricted the driver’s use of

the vehicle; that the driver had freedom to use it; and that how often the

driver used the vehicle was left to the driver’s discretion.

Appellee filed his own motion for summary judgment on the same issue,

arguing that the stepfather did not furnish or make the subject vehicle

available for the driver’s regular use. Appellee asserted that the subject

vehicle, a 1992 Porsche, was a collector’s vehicle which the driver used

infrequently and which the driver understood was not intended to be used

regularly.

At the summary judgment hearing, the trial court reasoned that the

undisputed facts reflected that the car was “available” to the driver and

that “he could have taken it anytime he wanted.” However, the trial court

was concerned about the “regular use” language, noting that while the

stepfather never told the driver he could not use the vehicle, the driver was

aware of what kind of vehicle the 1992 Porsche was, such that this was an

implicit restriction on the driver using this vehicle. The trial court agreed

that the policy language defining a “non-owned auto” was unambiguous

on its face but found an ambiguity “as applied.”

Ultimately, the trial court determined the subject vehicle qualified as a

“non-owned auto” and therefore the GEICO policy provided coverage for

the subject vehicle involved in the accident. The trial court denied

GEICO’s motion for summary judgment and granted appellee’s motion as

to coverage. Thereafter, the trial court entered final judgment, ruling that

appellee would recover $100,000 from GEICO. GEICO appeals that ruling.

The standard of review for a ruling on summary judgment is de novo.

Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.

2000). Where an “appeal involves issues of contract and statutory

construction decided by summary judgment, our review is de novo.” State

Farm Mut. Auto. Ins. Co. v. Smith, 198 So. 3d 852, 855 (Fla. 2d DCA 2016).

GEICO first argues that while the trial court agreed that the policy

language was unambiguous on its face, its ruling that the “non-owned

auto” provision of the policy was ambiguous as applied to the facts was

contrary to Florida law. GEICO further argues that the trial court therefore

improperly construed the policy language against GEICO and concluded

that the policy covered the driver’s use of the vehicle.

As GEICO contends, the phrase “furnished or available for regular use”

is clear and unambiguous. See Valiant Ins. Co. v. Evonosky, 864 F. Supp.

1189, 1192 (M.D. Fla. 1994) (“A provision of an insurance policy is

ambiguous only if reasonably intelligent persons would honestly differ as

to its meaning, when considering it in the context of the entire policy.

Where the language in an insurance policy is clear and unambiguous,

however, the court must give effect to such language. We have read the

exclusions in the policy . . . and believe that those exclusions clearly state,

in common language, that coverage will not be afforded if the vehicle not

specifically covered in the policy is furnished or available for that family

member’s regular use.”); Lumbermens Mut. Cas. Co. v. Lesley, 433 So. 2d

1299, 1300 (Fla. 1st DCA 1983) (finding exclusionary policy language

“furnished or available for your regular use” to be “plain and unambiguous

so as to leave no room for construction”). Because the “non-owned auto”

definition contained in the GEICO policy is unambiguous, which the trial

court itself acknowledged, the trial court was required to construe it in

accordance with its plain meaning.

In this regard, “[i]t is a fundamental rule of contract interpretation that

a contract which is clear, complete, and unambiguous does not require

judicial construction.” Imagine Ins. Co. v. State ex rel. Dep’t of Fin. Servs.,

999 So. 2d 693, 696 (Fla. 1st DCA 2008) (citation omitted). As the supreme

court has explained: “If the language used in an insurance policy is plain

and unambiguous, a court must interpret the policy in accordance with

the plain meaning of the language used so as to give effect to the policy as

it was written.” State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566,

569-70 (Fla. 2011) (citation omitted). “A provision is not ambiguous,

however, simply because it is complex or requires analysis.” Id. at 570.

(citation and internal quotation marks omitted). In this case, given the

unambiguous nature of the policy language, the principles of contract

interpretation did not apply. “It is fundamental that where a contract is

clear and unambiguous in its terms, the court may not give those terms

any meaning beyond the plain meaning of the words contained therein.”

Dows v. Nike, Inc., 846 So. 2d 595, 601 (Fla. 4th DCA 2003).

The relevant portion of the provision of the GEICO policy defined a

“non-owned auto” as a vehicle “not . . . furnished or available for regular

use.” In other words, the relevant point of inquiry rests on whether the

definition precluded coverage on the basis that the subject vehicle was

either furnished or available for regular use. In Evonosky, the court

considered the plain meaning of the term “available for the regular use,”

explaining that “[i]n common usage, ‘available’ means: ‘suitable or ready

for use’ and ‘readily obtainable; accessible’; and ‘regular’ means: ‘usual;

normal; customary.’” 864 F. Supp. at 1191 (quoting The Random House

Dictionary of the English Language (1967)). Black’s Law Dictionary also

contains a definition of “regular use” as used in this very context which

echoes this description. The definition states:

regular use. Insurance. A use that is usual, normal, or

customary, as opposed to an occasional, special, or incidental

use. • This term often appears in automobile-insurance

policies in the definition of a nonowned automobile — that is,

an automobile not owned by or furnished for the regular use

of the insured. Nonowned automobiles are excluded from

coverage under most liability policies.

Use, Black’s Law Dictionary (11th ed. 2019). Because the definition of a

“non-owned” vehicle covered by the GEICO policy excluded those that are

“furnished or available for regular use,” it necessarily precluded those non-

owned vehicles which are ready for use; readily obtainable; and accessible

for use that is usual, normal, or customary.

Here, the stepfather’s testimony established that he gave the subject

vehicle to the driver to use and take care of; that the driver had kept the

subject vehicle for ten years; that the driver had his own set of keys to the

vehicle; that the stepfather never restricted the driver’s use of the vehicle;

that the driver had freedom to use it; and that how often the driver used

the vehicle was left to the driver’s discretion. Therefore, the undisputed

facts reflected the driver’s possession, access to, and freedom to use the

subject vehicle without restriction. While the stepfather arguably may not

have furnished the subject vehicle to the driver for regular use, the subject

vehicle was nevertheless ready for use; readily obtainable; and accessible

to the driver for usual, normal, or customary use at his discretion, such

that it was “available for regular use.” As such, because the subject vehicle

was available for regular use, it did not meet the definition of a “non-owned

auto” and was therefore not covered by the GEICO policy.

Because the “non-owned auto” provision of the GEICO auto insurance

policy was unambiguous and the undisputed facts reflected the subject

vehicle was available for regular use, we therefore conclude the trial court

erred in determining that the subject vehicle met the definition of a “non-

owned auto.” Where the policy language was not susceptible to more than

one reasonable interpretation, given the commonly defined terms, the trial

court erred in construing any “ambiguity” in the terms against GEICO in

applying the facts of the case to the policy language. Thus, we reverse the

final judgment and partial summary judgment as to count III of appellee’s

complaint and remand with directions for the trial court to enter final

judgment in favor of GEICO.

Reversed and remanded with instructions.

KUNTZ and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.