[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
____________ ELEVENTH CIRCUIT
April 9, 2004
No. 03-12700 THOMAS K. KAHN
CLERK
____________
D.C. Docket No. 02-00310-CV-3-RV-MD
RICHARD C. GARES,
Plaintiff-Appellant,
versus
ALLSTATE INSURANCE COMPANY,
Defendant-Appellee.
_____________
Appeal from the United States District Court
for the Northern District of Florida
______________
(April 9, 2004)
Before CARNES and WILSON, Circuit Judges, and JORDAN*, District Judge.
JORDAN, District Judge:
_______________
*Honorable Adalberto Jordan, United States District Judge for the Southern District of
Florida, sitting by designation.
As the district court aptly put it, this insurance dispute under Florida law
concerning uninsured motorist coverage presents an intersection of the principles
announced in Allstate Ins. Co. v. Boynton, 486 So.2d 552 (Fla. 1986), and in Reid v.
State Farm Fire & Cas. Co., 352 So.2d 1172 (Fla. 1977), and its progeny. The issue
is whether an injured person who is an “insured” under multiple automobile policies
can seek uninsured motorist benefits pursuant to those policies if the vehicle involved
in the accident is a covered vehicle under the liability portion of the policies but there
is no liability coverage for the accident due to exclusions.
The district court ruled that Reid and its progeny governed, and granted
summary judgment in favor of Allstate Insurance Company and against Richard
Gares. After surveying Florida law, we agree and affirm.
I
Richard Gares is the brother of Wesley Gares and, during the relevant period,
resided in the same household as Wesley. Wesley owns Top Gun Muffler, Inc., an
automobile repair shop located in Okaloosa County, Florida. Richard is not an
employee of Top Gun.
On October 31, 2001, Carnac Kitchens, Inc. delivered one of its trucks to Top
Gun for repairs. Wesley drove the truck onto a lift in a manner that caused the truck
to proceed off the front of the lift and severely injure Richard, who was visiting
2
Wesley at Top Gun.
Richard sought payment from Top Gun’s liability insurer, which tendered its
policy limits to him. Richard also made a demand on Allstate Insurance Company,
the automobile liability insurer for Carnac Kitchens, the owner of the truck. Allstate
denied liability, presumably under Castillo v. Bickley, 363 So.2d 792 (Fla. 1978)
(automobile owner, absent its own negligence, is not liable for the negligent operation
of its automobile while left at a repair shop).
Finally, Richard made a separate demand on Allstate for uninsured motorist
benefits under two automobile policies issued by Allstate to Wesley for four other
vehicles. Allstate denied coverage, and this lawsuit ensued. The parties have
stipulated that if Richard prevails he is entitled to $400,000.00 under the Allstate
policies.
A
The liability portions of the policies issued to Wesley (which are identical in
all relevant respects) obligate Allstate to pay “for all damages a person insured is
legally obligated to pay because of bodily injury or property damages.” Policy at 3
(Part I, “Bodily Injury and Property Damage”). The parties agree that Wesley is a
“person insured” when “using a non-owned auto” (i.e., the Carnac Kitchens truck).
See id. at 3 (Part I, “Persons Insured”).
3
An “insured auto” is defined, in relevant part, as “(1) any auto described on the
Policy Declarations and the . . . auto you replace it with,” and “(4) a non-owned auto
used by you or a resident relative with the permission of the owner[.]” Id. at 3-4 (Part
I, “Insured Autos”). It is undisputed that the Carnac Kitchens truck is an “insured
auto.” Nevertheless, there is no liability coverage for Richard’s injuries because of
the following exclusions: “(2) auto business operations such as repairing, servicing,
testing, . . . of autos;” “(3) a non-owned auto while being used in any business or
occupation of a person insured;” and “(6) bodily injury to any person related to a
person insured by blood, marriage or adoption and residing in that person insured’s
household.” See id. at 4 (Part I, “Exclusions”).
B
Under the uninsured motorist portions of the policies, Allstate is obligated to
pay “only those damages which a person insured is legally entitled to recover from
the owner or operator of an uninsured auto because of bodily injury sustained by a
person insured[.]” Id. at 7 (Part IV, “Uninsured Motorist Insurance”). The parties
agree that Richard is a “person insured” under the uninsured motorist portions
because he resided in the same household as Wesley at the time of the accident. See
id. They also agree that the Carnac Kitchens truck is an “insured auto” because it was
a motor vehicle “(4) operated by [the insured] . . . with the permission of the owner,
4
but not furnished for [the insured’s] regular use.” See id.
The policies define an “uninsured auto,” in pertinent part, as follows:
(1) A motor vehicle which has no bodily injury liability bond or
insurance policy in effect at the time of the accident.
(2) A motor vehicle, other than a motor vehicle insured under the
liability portion of this policy, for which the insurer denies coverage.
*****
(5) A vehicle insured under the liability portion of a motor vehicle
insurance policy which causes bodily injury to you or a resident relative
while being operated by a person other than you or a resident relative
and which is excluded under the liability portion of the policy.
(6) An underinsured motor vehicle. An underinsured motor vehicle is
one which has liability protection in effect and applicable at the time of
the accident but in an amount less than the damages the person insured
is legally entitled to recover.
Id. at 8 (emphasis added). Significantly, the policies also provide that “[a]n uninsured
auto is not . . . [a] vehicle insured under the liability portion of a motor vehicle
insurance policy, unless that auto causes bodily injury to you or a resident relative
while being operated by a person other than you or a resident relative and which is
excluded under the liability portion of the policy.” Id. (emphasis added).
Although the Carnac Kitchens truck might initially be thought of as an
“uninsured auto” because it is an “underinsured motor vehicle,” the definitions quoted
above prevent such a result. First, the definition of “uninsured auto” specifically
5
excludes any “motor vehicle insured under the liability portion of this policy,” and
the truck is, as noted earlier, an “insured auto.” Second, the truck cannot be
considered an “uninsured auto” because it was being driven by Wesley, the named
insured and a resident relative of Richard’s.
II
Faced with these undisputed facts, the district court concluded that there was
no uninsured motorist coverage for Richard’s injuries under Wesley’s Allstate
policies. Relying on Reid v. State Farm Fire & Casualty Co., 352 So.2d 1172, 1173-
74 (Fla. 1972), and distinguishing Allstate Ins. Co. v. Boynton, 486 So.2d 552, 554-55
(Fla. 1986), the district court ruled that the Carnac Kitchens truck could not be both
an “insured auto” under the liability portions of the policies and an “uninsured auto”
under the uninsured motorist portions of the same policies.
A
Reid, decided by the Florida Supreme Court in 1977, involved a passenger who
was injured in an accident involving an automobile driven by her sister, owned by her
father, and insured by State Farm. Although the automobile was covered under the
policy and the sister was an “insured,” the policy contained a clause providing that
there was no coverage for bodily injury to any insured or any family member of an
insured residing in the same household. Because the passenger lived together with
6
her sister -- an “insured” -- coverage was unavailable if the exclusion was valid. 352
So.2d at 1172-73.
The passenger requested that the exclusion be declared invalid. In the
alternative, she sought uninsured motorist coverage under the policy, reasoning that
if the exclusion applied, the automobile was rendered “uninsured.” The Florida
Supreme Court upheld the exclusion, and then rejected the claim for uninsured
motorist benefits because the policy provided that “an ‘uninsured motor vehicle’ may
not be the vehicle defined in the policy as the insured motor vehicle:” “We hold that
the family car in this case is not an uninsured motor vehicle. It is insured and does
not become uninsured because liability coverage may not be available to a particular
individual . . . . Here, the family car, which is defined in the policy as the insured
motor vehicle, is the same vehicle which [the passenger,] under the uninsured
motorist provision of the policy, claims to be an uninsured motor vehicle.” Id. at
1173-74.
The Florida Supreme Court did not stop there. It expressly distinguished Lee
v. State Farm Mut. Auto. Ins. Co., 339 So.2d 670 (Fla. 2d DCA 1976), a case which
had, on similar (but not identical) facts, allowed recovery of uninsured motorist
benefits. It explained, by citing to Hartford Accident & Indemnity Co. v. Fonck, 344
So.2d 595 (Fla. 2d DCA 1977), that in Lee (1) the “uninsured motor vehicle” which
7
caused the injury “was not the same vehicle as the ‘insured motor vehicle’ named in
the policy,” and (2) unlike Reid, there was no policy provision which provided that
“the term ‘uninsured motor vehicle’ does not include the vehicle named in the policy
as the ‘insured motor vehicle.’” 352 So.2d at 1174.
Thus, Reid holds that uninsured motorist coverage is not available if the claim
is made against the same policy which provides liability coverage to the automobile
in question and if the policy says that an insured automobile cannot also be
considered an uninsured automobile. But Reid is not the end of the story.
In 1986, the Florida Supreme Court decided Boynton, a case with underlying
facts very similar to those here. A Sears auto mechanic was struck by an automobile
being repaired by another mechanic. Sears was immune from suit under Florida’s
workmen’s compensation law, see Fla. Stat. § 440.11, and the claim against the
automobile’s lessor, Xerox, was dismissed under Castillo v. Bickley, 363 So.2d 792
(Fla. 1978) (automobile owner, absent its own negligence, is not liable for the
negligent operation of its automobile while left at a repair shop). The injured
mechanic then sought to recover from the tortfeasor’s automobile liability insurance
carrier, but that carrier denied coverage because of a provision in the policy excluding
injuries occurring during the pursuit of a business. See Boynton, 486 So.2d at 554.
When the injured mechanic claimed that he was entitled to recover uninsured motorist
8
benefits under his own automobile insurance policy (on the theory that the tortfeasor
was an uninsured motorist), the Florida Supreme Court had to decide whether Reid
barred the claim. Id.
The Florida Supreme Court did not find Reid controlling. It rejected Allstate’s
argument that the automobile was not uninsured because Xerox had a liability policy
that would have provided coverage. “A vehicle is insured [for purposes of Fla. Stat.
§ 627.727(a)] only when the insurance in question is available to the injured
plaintiff.” Because Xerox was without fault and could not be held responsible, its
“liability insurance was not available to [the injured mechanic].” Id. at 555.
Similarly unpersuasive was Allstate’s argument that the automobile was not
“uninsured” because the tortfeasor had a liability policy. As that policy “specifically
excluded injuries occurring in the pursuit of a business,” it “did not provide coverage
for this particular occurrence.” Id. (discussing American Fire & Cas. Co. v. Boyd,
357 So.2d 768 (Fla. 1st DCA 1978)).
Concluding that the automobile was “uninsured” in “the context of the [injured
mechanic’s] uninsured motorist policy,” the Florida Supreme Court addressed Reid
in a footnote. It said that under Reid “a vehicle cannot be both an insured and
uninsured vehicle under the same policy,” and that Boynton was distinguishable
because it involved “separate policies.” 486 So.2d at 555 & n.5. It also added that,
9
under the tortfeasor’s policy, an uninsured auto included a “‘motor vehicle for which
the insurer denies coverage,’” and the tortfeasor’s carrier had in fact denied coverage.
Id.
Significantly, the Florida Supreme Court’s opinion in Boynton does not say
whether the automobile at issue in Boynton was also, somehow, an insured
automobile under the liability portion of the injured mechanic’s policy. The opinion
also does not state whether the policy contained a clause, similar to the one in Reid,
providing that an uninsured automobile could not be an automobile covered under the
liability portion of the policy. The lower court decision, however, indicates that there
was no such clause. In its opinion, the Fifth District concluded that the vehicle was
uninsured under the injured mechanic’s policy and did not quote any Reid-type
language. See Boynton v. Allstate Ins. Co., 443 So.2d 427, 429 (Fla. 5th DCA 1984)
(under policy, vehicle was uninsured if (1) it had “no bodily injury liability bond or
insurance policy in effect at the time of the accident,” (2) it was a vehicle for which
the insurer “denie[d] coverage” or became insolvent within 12 months from the date
of the accident, or (3) it was a “hit-and-run” vehicle which caused bodily injury to an
“insured person”). In other words, the policy at issue in Boynton was different (and
significantly different) from the one at issue in Reid.
The last case in the Florida Supreme Court trilogy is Brixius v. Allstate Ins. Co.
10
589 So.2d 236 (Fla. 1991). In that case, a passenger was injured while riding in a car
she owned, but which was being driven by an uninsured friend. Because her own
Allstate policy excluded coverage for injuries sustained by a named insured, the
passenger claimed that her own automobile was uninsured as to her. By a 4-3 vote,
the Florida Supreme Court rejected the passenger’s argument and held that Reid
controlled. After all, like the policy in Reid, the policy in Brixius said that an
uninsured automobile was not an automobile which was insured under the policy’s
liability portion. Id. at 237-38.
B
Florida’s intermediate appellate courts have generally concluded that Reid
controls where there is one policy providing that an automobile insured under the
liability portion of the policy cannot also be an uninsured vehicle. They have also
sometimes suggested (but not held) that Boynton is limited to those situations where
there are separate policies, without explaining how a multiple-policy scenario is
different. See, e.g., State Farm Mut. Auto. Ins. Co. v. Palacino, 562 So.2d 837, 838
(Fla. 4th DCA 1990) (en banc); Hartland v. Allstate Ins. Co., 575 So.2d 290, 291
(Fla. 1st DCA 1991).
But in Nationwide Mutual Fire Ins. Co. v. Olah, 662 So.2d 980 (Fla. 2nd DCA
1995) (Quince, J.), the Second District applied the rationale of Reid in a multiple-
11
policy scenario. In Olah, Eileen Lattanzio and others were killed while riding in a car
owned by Theodore and Margaret Simon and driven by Daniel Lattanzio. The
Simons’ vehicle was insured by Allstate, which paid its policy limits to Eileen’s
estate. There were, however, two other insurance policies issued to Daniel by
Nationwide. When Eileen’s estate sought payment from Nationwide under the
liability and uninsured motorist provisions of Daniel’s policies, Nationwide denied
coverage and sought a declaratory judgment.
The Nationwide policies provided liability coverage to vehicles being used by
Daniel and owned by a non-member of his household, but also had an exclusion for
bodily injury to members of the insured’s household. As a result, the Simons’ vehicle
was a covered automobile under the liability portion of the Nationwide policies, but
Eileen’s injuries were excluded because Eileen was a member of Daniel’s household.
The uninsured motorist portion of the Nationwide policies extended coverage
for bodily injury sustained by the insured (Daniel) or a relative (Eileen) when the
vehicle in which the loss occurred had no insurance coverage or if the coverage
afforded was less than the damages suffered. It also stated, however, that an
uninsured vehicle was not “any motor vehicle insured under the liability coverage”
of the policies. Id. at 981-82.
The Second District found these provisions to be unambiguous, and, citing
12
Reid and Brixius, denied coverage under Nationwide’s policies.
The Simon vehicle was covered under the liability portion of [Daniel’s]
polic[ies] because it was being operated by [Daniel]. However,
[Eileen’s] estate cannot recover under the liability coverage because she
was a member of the insured’s household. Additionally, since the
vehicle is insured under the liability portion of the policy, it cannot be
uninsured under the UM portion of the policy.
Id. at 982.
Olah is directly on point, and is the last (and only) word on the subject from
Florida’s appellate courts. Because this is a diversity case, we must follow Olah
unless “there is some really persuasive indication that the Florida Supreme Court
would go the other way.” KMS Restaurant Corp. v. Wendy’s Int’l, Inc., No. 03-10759,
2004 WL 396472, *3 (11th Cir. March 4, 2004). Upon reflection, we do not believe
the Florida Supreme Court would reach a contrary result. First, the analyses in Reid,
Boynton, and Brixius focus on the pertinent policy language. Second, the central
holding of Reid, reaffirmed in Boynton, is that if a policy prohibits a vehicle from
being both an insured automobile for liability purposes and an uninsured automobile
for uninsured motorist purposes, a court cannot decree otherwise. See Travelers Ins.
Co. v. Warren, 678 So.2d 324, 328 (Fla. 1996) (plurality opinion) (“[I]n Reid v. State
Farm Fire & Cas. Co., 352 So.2d 1172 (Fla. 1977), . . . we . . . held that a vehicle
cannot be both an uninsured and insured vehicle under the same policy.”). Third, the
13
“multiple policy” language of Boynton can properly be reconciled with Reid and
Brixius on the ground that the policy in Boynton did not provide that a vehicle could
not be both an insured automobile for liability purposes and an uninsured automobile
for uninsured motorist purposes. If all that matters under Boynton is whether there are
several policies involved with respect to the underlying accident, regardless of how
the policy being sued on defines an uninsured automobile, then the language of the
policies will become academic. We see nothing in Florida law that points to such a
rule.
III
The Carnac Kitches truck is a “covered auto” under Welsey’s Allstate policies.
Because those policies provide that a “covered auto” cannot also be an “uninsured
auto,” there is no uninsured motorist coverage for Richard’s injuries. See Boynton,
486 So.2d at 554-55 & n.5; Reid, 352 So.2d at 1172-74; Olah, 662 So.2d at 982. The
district court correctly granted summary judgment in favor of Allstate.
AFFIRMED.
14