AND INAPPLICABLE TO THE CLAIMS BROUGHT BY THE ESTATE AGAINST PARTNERS FOR PETS.
The Appellant argues that Southern Owners’ clause providing excess insurance in certain limited circumstances must apply in conjunction with the ‘same or similar coverage’ exclusionary clause. The Southern Owners excess insurance clause, found in the body of the Policy, and not the CGL Plus Endorsement, provides:
SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS
4. Other Insurance
If other valid and collectible insurance is available to the insured for a loss we cover under Coverage A or B of this Coverage Part, our obligations are limited as follows:
a. Primary Insurance ...
b. Excess Insurance
This insurance is excess over:
(1) Any other insurance, whether primary, excess, contingent or an any other basis:
... (R. 44)(Emphasis added).
While the Appellant argues that the excess clause and escape clause are ‘mutually repugnant,’ this is not the case. (R. 300). Rather, the excess clause may apply if there “is other valid and collectible insurance . . . for a loss [Southern Owners] covers under Coverage A or B . . ..” (R. 44). Because this provision only applies when there is other insurance available to the insured “for a loss we cover,” the policy must actually provide coverage before it is even necessary to determine if he coverage provided is primary or excess. (R. 44). If there is no coverage for the loss (such as in this case), it is irrelevant and logically impossible to find that coverage which does not exist is either primary or excess.
What Appellant is arguing, in essence, is to allow the policy to create coverage through the “Other Insurance” provision when no coverage otherwise exists. “Other Insurance” provisions do not create coverage, they simply address and contemplate whether coverage which already exists should be primary or excess. What Appellant fails to consider is that the so-called “escape clause” extends coverage only when there is not “any other insurance available which affords the same or similar coverage.” This means that if there is “any” other insurance available to Partners for Pets which provides the same or similar coverage, then coverage is not extended and the Hired Auto and Non-Owned Auto provisions simply do not apply.
If there was coverage under the Southern Owners policy, then the “Other Insurance” provision would have subsequent application, but the “Other Insurance” provision cannot, standing on its own, extend coverage. For the “Other Insurance” provision to have any application the Court would first have to find that the GEICO policy was not “any other insurance” which provided the “same or similar coverage.” For the reasons previously argued, the coverages are certainly similar, if not actually the same. In short, the first question to be answered is whether there is any other insurance affording the same or similar coverage. If there is, then the analysis never reaches the ‘excess’ clause stage. As coverage is not extended due to the ‘same or
similar coverage’ exclusion, there is no loss covered by Southern Owners and the “Other Insurance” provision is not applicable, not contradictory or repugnant.
CONCLUSION
The extended coverage obtained by Partners for Pets for ‘Hired Auto and Non-Owned Autos’ under the Southern Owners policy could have applied to the Estate’s claims against Partners for Pets, however coverage is excluded because the Chafin’s GEICO policy provided coverage for bodily injury to Madison Chafin, her parents, and to Partners for Pets. Since GEICO’s policy provided the same or similar coverage, as evidenced by GEICO’s tender of such coverage to the Estate, the Southern Owners policy provides no coverage to Partners for Pets due to the ‘same or similar coverage’ exclusion. Beyond this, the ‘same or similar coverage’ provision is not ambiguous, does not conflict with other policy provisions, and does operate to wholly exclude coverage for the Estate’s claims against Partners for Pets. Therefore, the Trial Court's grant of Summary Judgment for Southern Owners should be affirmed, finding no duty to defend or indemnify Partners for Pets and no coverage under the Southern Owners policy for claims against Partners for Pets which were brought by the Estate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 2nd day of September, 2020, an electronic copy of the foregoing was filed with the Clerk of Court for the United States Court of Appeals using the appellate CM/ECF system.
/s/ Gregory M. Shoemaker Gregory M. Shoemaker Florida Bar No.: 883890
WADE, PALMER & SHOEMAKER, P.A. 14 North Palafox Street
P.O. Box 13510
Pensacola, FL 32591-3510 (850) 429-0755
Attorney for Appellee, Southern Owners Insurance Company
CERTIFICATE OF COMPLIANCE
I hereby certify this Brief complies with Florida Rule of Appellate Procedure 9.210(a)(2), and has been typed in Times New Roman, 14-point font.
/s/ Gregory M. Shoemaker Gregory M. Shoemaker Florida Bar No.: 883890
WADE, PALMER & SHOEMAKER, P.A. 14 North Palafox Street
P.O. Box 13510
Pensacola, FL 32591-3510 (850) 429-0755
Attorney for Appellee, Southern Owners Insurance Company