AVATAR PROPERTY & CASUALTY INSURANCE COMPANY v. CECILIA HILDA CASTILLO and JORGE GUILLEN

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

AVATAR PROPERTY & CASUALTY INSURANCE COMPANY,
Appellant,

v.

CECILIA CASTILLO and JORGE GUILLEN,
Appellees.

No. 4D18-3154

[April 22, 2020]

Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Lisa S. Small, Judge; L.T. Case No.
2017CA003554XXXXMB AH.

Carol M. Rooney of Butler Weihmuller Katz Craig LLP, Tampa, for
appellant.

John H. Pelzer of Greenspoon Marder LLP, Fort Lauderdale, and
Warren Diener and Jesse R. Feldman of The Diener Firm, P.A., Plantation,
for appellees.

GERBER, J.

The primary issue arising in this appeal is whether the insureds’ policy
requires them to produce for examinations under oath (EUOs) the
handyman and water restoration employees who performed the home
repairs for which the insureds are seeking coverage under the policy. The
circuit court concluded the policy did not require the insureds to produce
the handyman or water restoration employees for EUOs because those
persons were not the insureds’ “agents” or “representatives” as those terms
are used in the policy. We agree with the circuit court’s conclusion. Thus,
we affirm on that issue. On the other issues raised in the appeal and
cross-appeal, we affirm without further discussion.

Procedural History

A pipe leak caused water damage to the insureds’ home. The insureds
hired a handyman to repair the pipe, and a water restoration company to
dry out their home. The insureds submitted a sworn proof of loss with the
repair invoices to the insurer, and requested coverage for the claim.

The insurer requested the insureds to produce themselves, the
handyman, and the water restoration company’s employees for EUOs
pursuant to the policy, which provides, in pertinent part:

2. Your Duties After Loss. In case of a loss to covered
property, you must see that all of the following are done:

...

i. In the County where the “residence premises” is located
you, your agents, your representatives, including any
public adjuster engaged on your behalf, and any and all
“insureds” must submit to [EUOs] and sign same when
requested by us.

(emphasis added).

After the parties’ attorneys exchanged correspondence regarding
whether the policy required the insureds to produce the handyman and
water restoration employees for EUOs, the insureds filed a petition for
declaratory relief. The insureds argued the policy did not require them to
produce the handyman or the water restoration employees for EUOs
because those persons were not their “agents” or “representatives” as those
terms were used in the policy. The insureds later filed a motion for final
declaratory judgment to that effect.

The insurer then filed its own motion for final declaratory judgment.
The insurer argued the policy required the insureds to produce their
“agents” and “representatives,” which included the handyman and the
water restoration employees.

The circuit court held a hearing on the motions. The circuit court
understood the facts to be undisputed, thus allowing it to decide the
motions as a matter of law. The circuit court issued a final judgment
concluding:

6. The [insurance] policy only requires the [insureds] and
their “agents and representatives or public adjuster” to submit
to [EUOs]. The policy does not define the terms “agent” or
“representative.” Nevertheless, just because an insurance
policy does not define a term does not make the insurance

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 policy ambiguous. Cheetham v. S. Oak Ins. Co., 114 So. 3d
257, 263 (Fla. 3d DCA 2013) (holding that the mere failure to
provide a definition for a term within an insurance policy does
not render the term ambiguous).

7. Black’s Law Dictionary defines an “agent” as “[o]ne who
is authorized to act for or in place of another; a
representative.” Black’s Law Dictionary (10th ed. 2014).
According to Black’s Law Dictionary, the terms “agent” and
“representative” have the same meaning.

8. Individuals retained by the [homeowner] to furnish
estimates of the damage (such as a general contractor or
handyman), or a company retained by the policyholder to
mitigate damages (such as a water mitigation company), do
not fit within the definition of [the insureds’] agent,
representative, or public adjuster. If the [insurer] wanted to
require the [insureds] to produce such individuals or “all other
[persons whom the insureds] would rely upon to support their
claim” it would have been “a simple matter” to include such a
requirement in the policy. See Nawaz v. Universal Property &
Cas. Ins. Co., 91 So. 3d 187, 189 (Fla. 4th DCA 2012) (“[I]n
the present case, it would have been a ‘simple matter’ for [the
insurance company] to have written a restriction into the
policy limiting those who could be present for the [EUO].”).

The insurer’s appeal followed. The insurer argues the policy required
the insureds to produce the handyman and the water restoration
employees as their “agents” and “representatives” for EUOs. The insureds
respond the policy did not require them to produce the handyman or the
water restoration employees for EUOs because those persons were not
their “agents” or “representatives” as those terms were used in the policy.

Our Review

As the appeal depends upon our interpretation of the policy, our review
is de novo. See Altman Contractors, Inc. v. Crum & Forster Specialty Ins.
Co., 232 So. 3d 273, 276 (Fla. 2017) (“Insurance policy interpretation . . .
is a question of law, subject to de novo review.”) (citation, brackets, and
internal quotation marks omitted).

Our supreme court recently summarized the law regarding insurance
policy interpretation:

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 Where the language in an insurance contract is plain and
unambiguous, a court must interpret the policy in accordance
with the plain meaning so as to give effect to the policy as
written. . . .

When interpreting insurance contracts, we may consult
references commonly relied upon to supply the accepted
meanings of words. Moreover, when analyzing an insurance
contract, it is necessary to examine the contract in its context
and as a whole, and to avoid simply concentrating on certain
limited provisions to the exclusion of the totality of others.
This Court has consistently held that in construing insurance
policies, courts should read each policy as a whole,
endeavoring to give every provision its full meaning and
operative effect.

Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973, 975-76 (Fla.
2017) (internal citations, quotation marks, and brackets omitted).

The policy does not define “agents” or “representatives.” Therefore, “we
may consult references commonly relied upon to supply the accepted
meanings of words.” Id. at 976. Black’s Law Dictionary defines “agent” as
“Someone who is authorized to act for or in place of another; a
representative,” Agent, Black’s Law Dictionary (11th ed. 2019), and defines
“representative” as “Someone who stands for or acts on behalf of another.”
Representative, Black’s Law Dictionary (11th ed. 2019).

Applying those definitions to the undisputed facts here, the insureds’
handyman and the water restoration employees were not their “agents” or
“representatives” under the policy. Nothing in the record indicates the
handyman or the water restoration employees were “authorized to act for
or in place of” the insureds, or “[stood] for or act[ed] on behalf of” the
insureds. Instead, the record indicates the handyman and the water
restoration employees simply performed repairs to the insureds’ home.
Thus, the policy did not require the insureds to produce the handyman or
the water restoration employees for EUOs.

Our decision in Nawaz v. Universal Property Casualty Insurance Co., 91
So. 3d 187 (Fla. 4th DCA 2012), is instructive. In Nawaz, the insurer
scheduled the insured for an EUO. Id. at 188. The policy required the
insured to “[s]ubmit to examination under oath, while not in the presence
of any other ‘insured,’ and sign the same. . . .” Id. (emphasis added). The
policy defined “insured” as “you and residents of your household who are
. . . [y]our relatives; or . . . [o]ther persons under the age of 21 and in the

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care of any person named above.” Id. However, the insured appeared at
the EUO with his public adjuster. Id. The insurer requested the public
adjuster to leave the room before the EUO occurred. Id. The insured
refused to instruct the public adjuster to leave the EUO, so the insurer
suspended the EUO. Id. As a result, the insurer filed a complaint for
declaratory relief, claiming the insured violated the policy by bringing the
public adjuster to the EUO. Id. The insured filed a counterclaim for
declaratory relief arguing no violation occurred. Id.

After the circuit court ruled in the insurer’s favor, we reversed,
reasoning:

We find that the plain language of the contract would allow
[the insurer] to exclude only another insured from the [EUO].
. . . Clearly the public adjuster does not fit into the plain
language of the definition of “insured.”

Further, to the extent that the policy is considered
uncertain, we are compelled to construe the interpretation
against the insurer. [The insurer], as the drafter of the
contract, could have easily included language that would have
excluded the public adjuster from the [EUO]. Instead, the
policy delineated only the “insured” as being excluded from
the [EUO].

Id. at 188-89 (internal citations and footnotes omitted).

Similarly here, the handyman and the water restoration employees
were not the insureds’ “agents” or “representatives” under the dictionary
definitions of those terms. Further, to the extent the policy here is
considered uncertain, we are compelled to construe the interpretation
against the insurer. Cf. Wash. Nat’l Ins. Corp. v. Ruderman, 117 So. 3d
943, 949-50 (Fla. 2013) (“[W]here the provisions of an insurance policy are
at issue, any ambiguity which remains after reading each policy as a whole
and endeavoring to give every provision its full meaning and operative
effect must be liberally construed in favor of [the insured] and strictly
against the insurer.”). The insurer, as the policy’s drafter, easily could
have added language including “any persons who inspected or repaired
the covered property.” For us to do so now would re-write the policy.

Based on the foregoing, we conclude the circuit court correctly held the
policy does not require the insureds to produce the handyman and the
water restoration employees for EUOs. Thus, we affirm on that issue. On

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the other issues raised in the appeal and cross-appeal, we affirm without
further discussion.

Affirmed.

MAY and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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