Wednesday, August 5, 2009

Third District Reverses And Finds No Insurance Coverage For Accident On Public Way

In Zurich American Insurance Company v. Ainsworth (3D08-3022), the Third District granted the insurers Petition for Certiorari and determined that no coverage exists for the alleged injury.
Zurich insured TotalBank under a general liability policy of insurance. The policy provided MedPay coverage,1 regardless of fault, for bodily injury caused by an accident "[o]n ways next to premises you own or rent; or [b]ecause of your operations." TotalBank rents a building in a shopping center located on Quail Roost Drive. Between the parking lot of the shopping center and Quail Roost Drive there is a swale, a sidewalk and another swale. Quail Roost Drive does not abut or touch the parking lot, much less TotalBank’s rented premises in the shopping center.
The injury occurred in an automobile accident caused by a car exiting a Burger King in the shopping center. The circuit court, in its appellate capacity, determined that coverage existed. The Third District first found that the circuit court erred by determining fault as to the accident, which was irrelevant to the policy. The court stated:
Under a general liability insurance policy, MedPay coverage is primarily intended to pay for injuries sustained by the members of the general public while on the insured’s premises or otherwise exposed to the insured’s operations.
"The next issue is whether the Circuit Court misconstrued the MedPay coverage provision when it determined that Quail Roost Drive met the Zurich MedPay policy provision of "ways next to premises" owned or rented by the insured, TotalBank."

Both parties always have been in agreement that the place of the accident was on Quail Roost Drive. This fact is not in dispute. The question, then, is whether, based on the facts of this case, Quail Roost Drive meets the policy coverage provision of "ways next to premises" owned or rented by TotalBank. The term, "next to," is defined by Webster’s New Collegiate Dictionary (1980) as "immediately following or adjacent to." See also Black’s Law Dictionary 941 (5th ed. 1979) (defining "next" as "immediately following."). In construing premises liability policies, the construction of the terms, "ways immediately adjoining premises" includes considerations of whether public or commonly held property separates the way in question from the designated premises.


In construing the facts before us, considering that there is no question that the accident occurred on Quail Roost Drive on a public highway, in front of a public shopping center, where the shopping center and the shopping-center parking lot are separated from Quail Roost Drive by two swales and a sidewalk, we decline to find coverage within the meaning of the terms, "ways next to premises," under the Zurich MedPay policy. We follow the line of cases which hold that a claim arising from a motor vehicle accident on a way which is not contiguous or touching the insured premises is excluded from coverage.


Applying these authorities to the facts as related to the construction of the MedPay provision before us, we find, as a matter of law, that the meaning of "ways next to premises" does not afford coverage for this accident. Because the Circuit Court based its decision on the need for a determination of liability subject to a question-of-fact analysis, we quash its decision as contrary to law.

Petition for writ of certiorari granted; decision quashed.


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