www.rissman.com
201 EAST PINE STREET
15TH FLOOR
ORLANDO, FLORIDA 32801
TELEPHONE (407) 839-0120
TELECOPIER (407) 841-9726
ORLANDO@RISSMAN.COM
1 NORTH DALE MABRY HWY
11TH FLOOR
TAMPA, FLORIDA 33609
TELEPHONE (813) 221-3114
TELECOPIER (813) 221-3033
TAMPA@RISSMAN.COM

900 S.E. 3RD AVENUE
SUITE 210
FT. LAUDERDALE, FL 33316
TELEPHONE (954) 526-5480
TELECOPIER (407) 841-9726
FTLAUDERDALE@RISSMAN.COM

709 SEBASTIAN BOULEVARD
SUITE B
SEBASTIAN, FLORIDA 32958
TELEPHONE (772) 228-3228
TELECOPIER (772) 228-3229
SEBASTIAN@RISSMAN.COM

 

 

In Allstate v. Manzo-Pianelli, 39 Fla. L. Weekly D2301a (Fla. 4th DCA Nov. 5, 2014), Alana Proctor was the permissive driver of a vehicle owned by Neil Seiden and was involved in an accident with Melanie Manzo-Pianelli in August 2007. Seiden had auto insurance with State Farm with bodily injury limits of $100,000 per person and an umbrella policy with Allstate with liability limits of $1 million dollars. State Farm paid its $100,000 policy limits to Manzo-Pianelli and she executed a partial release in favor of Seiden.

Manzo-Pianelli also made a claim under the Allstate umbrella policy and Allstate denied coverage. Then, in October 2009, Manzo-Pianelli filed a complaint against her uninsured motorist carrier, USAA, seeking uninsured motorist coverage. USAA filed a third-party complaint against Allstate, Manzo-Pianelli and Proctor seeking a determination as to the "priority of coverage".

In July 2012, Manzo-Pianelli amended her complaint to add a cause of action against Proctor. Seiden was never named as a defendant by any of the parties. Manzo-Pianelli filed a motion for summary judgment against Allstate arguing there was coverage under the umbrella policy.

The insuring provision of the umbrella policy provided Allstate would pay damages which an "insured person" becomes "legally obligated" to pay because of personal injury arising out of "personal activities of an insured person including the permissive use of a land motor vehicle". The definition of an "insured person" under the umbrella policy did not include a permissive driver who was not a resident relative of the named insured.

In this case, the permissive driver (Proctor) was not a resident relative of the named insured (Seiden). Accordingly, Allstate argued that Proctor was not entitled to coverage because she was not an insured person under the policy. Further, since the named insured (Seiden) was not named as a defendant, he could never be "legally obligated" to pay damages since the 4-year statute of limitations from the date of the accident had run and Seiden was never sued.

After a hearing, the trial court granted summary judgment in favor of Manzo-Pianelli finding that Proctor was an omnibus insured under the Allstate policy and that her actions were covered because any negligence on her part would be imputed to Seiden under the vicarious liability and dangerous instrumentality doctrines. The trial court found it irrelevant that Seiden was not joined as a party, as the issue presented involved only construing the Allstate policy.

On appeal, the 4th DCA held that the trial court had erred in granting summary judgment as there was a disputed issue of material fact regarding whether Seiden could ever be "legally obligated" to pay Proctor's claim. Specifically, the 4th DCA found that the trial court never determined the issues relative to Seiden's legal liability including whether the statute of limitations to sue Seiden had run, the applicability of the relation-back doctrine if Seiden were added as a defendant, whether Allstate had misrepresented coverage in its letter to Proctor and whether tolling of the statute of limitations applied. Accordingly, the 4th DCA reversed the summary judgment in favor of Manzo-Pianelli and remanded the matter to the trial court for further proceedings.


 

This summary was prepared by Dean Hewitt of our firm.


Dean Hewitt

 

 


39 Fla. L. Weekly D2301a

 

Insurance -- Automobile accident -- Excess liability -- Coverage -- Trial court erred in entering summary judgment, determining permissive user of automobile was covered under automobile owner's umbrella policy, where an issue of material fact remains regarding whether the insured satisfies umbrella policy's requirement that he could be "legally obligated" to pay damages -- Trial court never determined the legal obligation of insured, who was not named as a defendant

ALLSTATE INSURANCE COMPANY, Appellant, v. MELANIE MANZO-PIANELLI, ALANA PROCTOR and UNITED SERVICE AUTOMOBILE ASSOCIATION a/k/a USAA, Appellees. 4th District. Case No. 4D13-4320. November 5, 2014. Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 09-57134CACE12. Counsel: Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for appellant. Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Matthew D. Hellman of Matt Hellman, P.A., Plantation, for appellee Melanie Manzo-Pianelli. Charles M-P George of the Law Offices of Charles M-P George, Coral Gables, and Christopher Wadsworth and Daniel L. Margrey of Wadsworth Huott, LLP, Miami, for appellee USAA.

(Per Curiam.) Allstate appeals an order, entered after summary judgment, determining that a permissive user of a motor vehicle was covered under an umbrella policy issued by Allstate. We reverse, as an issue of material fact remains regarding whether the insured could be "legally obligated" to pay damages, which is necessary for there to be coverage for the permissive user under the policy.

In August 2007, Alana Proctor, the permissive driver of a vehicle owned by Neil Seiden, was involved in an automobile accident with Melanie Manzo-Pianelli. Seiden had an insurance policy with State Farm that provided $100,000 in coverage and an umbrella policy with Allstate that provided $1,000,000 in coverage. State Farm tendered its policy limits to Manzo-Pianelli, and Manzo-Pianelli executed a partial release in favor of Seiden. Manzo-Pianelli sought to recover against Allstate, but Allstate sent a letter denying coverage.

In October 2009, Manzo-Pianelli filed a complaint against her insurer, USAA, for underinsured motorist benefits. USAA filed a third party complaint against Allstate, Manzo-Pianelli, and Proctor, seeking a determination as to the "priority of coverage." In July 2012, Manzo-Pianelli amended her complaint to add a cause of action against Proctor. Seiden was never named as a defendant by any of the parties.

The parties filed cross-motions for summary judgment and memoranda of law in support of their respective motions. Manzo-Pianelli argued there was coverage under the following provision:

Excess Liability Insurance Coverage XL

Allstate will pay damages which an insured person becomes legally obligated to pay because of personal injury, bodily injury or property damage, subject to the terms, conditions and limits of this policy. Personal injury, bodily injury and property damage must arise from a covered occurrence. . . .

Losses We Cover Under Coverage XL

We will cover an occurrence arising only out of:

1. Personal activities of an insured person, including the permissive use of a land motor vehicle or watercraft owned by an insured person. . .

The policy defined an "insured person" as follows:

a) you, and any other person who is named on the Policy Declarations;

b) any person related to you by blood, marriage, or adoption who is a resident of your household; or

c) any dependent person in your care, if that person is a resident of your household

but persons defined in 6. b) and 6. c) are not insured persons for any liability arising out of their ownership, maintenance or use of any motor vehicle or any watercraft.

The policy listed Seiden as the named insured. It was undisputed that Proctor was not a resident relative of Seiden.

Allstate argued that Proctor, a permissive user, was not afforded coverage under the policy, which limited coverage to "damages which an insured person becomes legally obligated to pay." Because Seiden, the insured person, was not named as a defendant, he could never be "legally obligated" to pay damages since the statute of limitations had run.

After a hearing, the trial court entered an order granting summary judgment in favor of Manzo-Pianelli. The court found that Proctor was an omnibus insured and that her actions were covered under the policy as a permissive user. Alternatively, Proctor's actions were covered because any negligence on her part would be imputed to Seiden under the vicarious liability and dangerous instrumentality doctrines. The court found it irrelevant that Seiden was not joined as a party, as the issue presented to the court involved only construing the Allstate policy.

"Our review of an order granting summary judgment is de novo, as is the interpretation of an insurance contract and the determination of whether the law requires the insurer to provide coverage." Valero v. Fla. Ins. Guar. Ass'n, 59 So. 3d 1166, 1167-68 (Fla. 4th DCA 2011) (citation omitted). Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c).

We find the trial court erred in granting summary judgment, as there is a disputed issue of material fact regarding whether Seiden is -- or can ever be -- "legally obligated" to pay Proctor's claim. The umbrella policy limits coverage to "damages which an insured person becomes legally obligated to pay . . . ." The trial court never determined Seiden's legal obligation. Issues relevant to this determination include whether the statute of limitations to sue Seiden has run, the applicability of the relation-back doctrine if Seiden were added as a defendant, whether Allstate misrepresented coverage in its letter to Proctor, and whether tolling applies. During oral argument, the appellees claimed there is the potential that Seiden could still be held liable. Also during oral argument, Allstate admitted that if Seiden had been named as a defendant, Allstate would have had a legal obligation to pay the claim. If no action may be maintained against Seiden, it follows then that there would be no liability or coverage under the umbrella policy for the permissive user. Peoples v. Fla. Ins. Guar. Ass'n, 313 So. 2d 40 (Fla. 2d DCA 1975).

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings. (Stevenson, May and Levine, JJ., concur.)


 



* * *