In re: Amendments to the Florida Small Claims Rules

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Maria N. Garcia v. Federal Insurance Co.

SC06-2524

NEXT CASE ON OUR CALENDAR, IS
GARCIA VERSUS FEDERAL INSURANCE
COMPANY.
>> GOOD MORNING, MATE PLEASE
THIS COURT, MY NAME IS HUGH
LUMPKIN ALONG WITH MICHAEL
HUBER OF VER PLOEG & LUMPKIN
AND REPRESENT THE APEL LAN,
HOUSEKEEPER AND JUDGMENT DEBTOR,
MARIA GARCIA AND WE ARE HERE
BECAUSE THE 11TH CIRCUIT
CERTIFIED TWO QUESTIONS TO YOU
FOR CONSIDERATION.
THE 11th CIRCUIT WAS UNABLE TO
FIND ANY CLARITY IN THE
ENSURING LANGUAGE CHOSEN BY
FEDERAL, MORE DID THE 11TH
CIRCUIT FIND ANY CLARITY IN THE
COURT'S DECISIONS OR FLORIDA
LAW CONCERNING THE MATTER --
>> I HAVE A PRACTICAL QUESTION
TO ASK YOU.
>> YES.
>> MRS. ANDERSON AS THE
HOMEOWNER, WAS VICARIOUSLY
LIABLE.
AND THE INSURANCE COMPANY
AGREED WITH THAT, IS THAT
CORRECT.
>> THAT'S TRUE.
>> AND THEY PAID -- SETTLED FOR
THE VICARIOUS LIABILITY.
>> YES.
>> ORDINARILY THAT WOULD COVER,
YOU KNOW, SOME -- SOMEONE WHO
IS VICARIOUSLY LIABLE, THEY ARE
LIABLE FOR THE WHOLE THING AND
I KNOW WE ARE REALLY NOT
SUPPOSED TO CONSIDER IT BUT IT
SEEMS THE $7 MILLION JUDGMENT
THAT WAS ENTERED REALLY IS A --
POTENTIALLY A DOUBLE RECOVERY
BECAUSE THE TORTOISE -- SINCE
THERE WAS FULL COVERAGE AND
VICARIOUSLY LIABLE TORT-FEASOR
WAS COVERED, I'M NOT SURE I
SEE, YOU KNOW, THE IDEA, WELL,
THERE ALSO HAS TO BE COVERAGE
FOR THE NEGLIGENT ACTOR WHO
THIS IS EMPLOYEE.
>> LET ME ANSWER IN THE --
>> MAYBE -- THE HOME ON IS
PROTECTED WHICH IS REALLY WHAT
WE ARE LOOKING FOR AND DOESN'T
THAT ALSO MAYBE SUGGEST WHY
THERE WOULD NOT BE COVERAGE FOR
THE NEGLIGENT TORT-FEASOR.
>> THERE ARE A COUPLE OF
ANSWERS TO YOUR QUESTION, AS A
PRACTICAL MATTER FIRST, THERE
NEEDS TO BE GOVERNING FOR THE
HOUSE KEEP YOUR AS WELL BECAUSE
SHE IS ENTITLED TO A DEFENSE,
IN -- UNDER RIGHTS AND THE
COURT'S DECISIONS AND THE 4th
DISTRICT'S DECISION, THE
INSURANCE COMPANY HAD AN
OBLIGATION TO NEGOTIATE IN GOOD
FAITH ON BEHALF OF THE
HOUSEKEEPER, TOO, ASSUMING THAT
SHE IS AN INSURED SO WHAT THE
DISTRICT COURT'S DECISION DID
AS A PRACTICAL MATTER IS
ELIMINATED A BUNDLE OF RIGHTS
TO WHICH MS. GARCIA WAS
ENTITLED.
NOW, BECAUSE IT FAILED TO
ACCORD MS. GARCIA ANY DEFENSE,
OR FAILED TO NEGOTIATE IN GOOD
FAITH ON HER BEHALF, THEN THERE
IS THE QUESTION OF EXTRA
CONTRACTUAL LIABILITY UNDER THE
FEDERAL POLICY.
>> WOULDN'T SHE ALSO BE COVERED
AS THE DRIVER OF THE -- UNDER
THE AUTOMOBILE LIABILITY
INSURANCE?
SURE SHE WAS COVERED UNDER THE
AUTO POLICY BY PROGRESSIVE IN
FAVOR OF THE OWNER OF THE CAR,
BUT IN THE CASE AS HAPPENSTANCE,
PROGRESSIVE DID NOT RUSH
FORWARD TO DEFEND HER EITHER.
IT ONLY CAME FORWARD WHEN IT
DISCOVERED THAT MS. GARCIA WAS
IN NEGOTIATIONS TO EXONERATE
HER LIABILITY THROUGH A -- AN
AGREEMENT AND EVERYONE FAILED
HER IN THIS CASE INCLUDING
FEDERAL.
SO AS A PRACTICAL MATTER SHE
WAS UNREPRESENTED AND
UNPROTECTED AND THE PURPOSE OF
THIS CLAUSE AND I THINK THIS IS
OUR BASIC POINT, IS NOT ONLY TO
PROTECTED THE VICARIOUSLY
RECEIVING PARTY, IF YOU WILL,
THE NAMED INSURED, IT IS ALSO
TO PROTECT STRANGERS TO THE
POLICY.
>> TONTED YOU HAVE TO START OUT
WITH THE -- BUT DON'T YOU HAVE
TO STARTED OUT WITH THE
PROPOSITION, FIRST DETERMINE
WHETHER OR NOT THE OTHER NAMED
INSURED ACTUALLY IS COVERED
UNDER THIS POLICY, AND SO,
DON'T WE HAVE TO DETERMINE
WHETHER OR NOT MS. GARCIA
REALLY IS A PERSON INTENDED TO
BE COVERED UNDER THIS POLICY.
>> THAT'S THE ESSENTIAL
QUESTION BEFORE THIS COURT.
>> TELL ME -- TELL US, THEN,
WHAT LANGUAGE THERE IS IN THIS
POLICY THAT DEMONSTRATES THAT
MRS. GARCIA IS IN FACT COVERED?
>> THE LANGUAGE OF THE POLICY
IS VERY SIMPLE.
WITH RESPECT TO LIABILITY,
BECAUSE OF ACTS OR OMISSIONS,
IN THE UNDERLYING COMPLAIN IN
PARAGRAPHS 23 AND 24, AND
OBVIOUSLY THE ARCHERS ARE THE
MASTERS OF THE ACTION, AND
ALLEGED NOT ONLY WAS MS. GARCIA
LIABLE FOR FAILING TO DO TWO
THINGS, FAILING TO DRIVE THE
CAR APPROPRIATELY AND FAILING
TO MAINTAIN THE VEHICLE, AND
RESPECTFULLY I WOULD SUGGEST
THE MAINTENANCE OBLIGATION DOES
NOT GENERALLY REST WITH THE
MINIMUM WAGE HOUSEKEEPER.
IT ALSO ALLEGED IN THIS CASE
THAT MS. ANDERSON WHO HAD THE
FULL USE OF THE AUTOMOBILE, HAD
THAT MAINTENANCE OBLIGATION.
>> WAS THERE ANY ALCOHOL --
ALLEGATION IN THE COMPLAIN THAT
MRS. GARCIA WAS ALSO LIABLE
VICARIOUSLY.
>> NO.
NO.
AND IN FACT WE CANNOT POSSIBLY
WIN THIS ARGUMENT IF THIS
COURT'S CONCLUSION, BASED UPON
THE LANGUAGE CLOSE EN IS A
CONCLUSION THAT IT ONLY
PROTECTS PEOPLE BASED UPON
VICARIOUS LIABILITY.
>> LET ME ASK YOU, THE LANGUAGE
THAT YOU ARE TRYING TO TRAVEL
UNDER IS WITH RESPECT TO
LIABILITY BECAUSE OF ACTS OR
OMISSIONS OF THE NAMED INSUREDS.
>> YES.
>> I'M HAVING TROUBLE -- AND BE
A VOLS THE 11th CIRCUIT IF THEY
THOUGHT IT WAS SO CLEAR, WHY
THEY CERTIFIED IT, I DON'T KNOW,
EXCEPT THEY LIKE TO CERTIFY
INSURANCE QUESTIONS AND SO
FORTH, BECAUSE OF -- THINGS NOT
ARISING OUT OF, BECAUSE OVER
SEEMS TO BE A DIRECT -- THAT IT
MUST BE BECAUSE OF THE ACTS OR
OMISSIONS IN THE NAMED INSURED
AND I'M HAVING A HARD TIME
SEEING WHY THAT DOESN'T CLEARLY
LIMIT IT TO ONLY WHEN THE
PERSON SEEKING COVERAGE IS
BEING SUED BASED ON VIE CURIOUS
LIABILITY.
>> AND THANK YOU FOR --
VICARIOUS LIABILITY.
>> THAT IS FEDERAL'S ARGUMENT,
BECAUSE OF UNAMBIGUOUSLY AND
EXCLUSIVELY MEANS VICARIOUS
LIABILITY AND THAT WHAT IS THE
COURT SAID IN VULCAN AND
REMEMBER THE LANGUAGE THE COURT
EMPLOYED AND IN FACT THE
LANGUAGE EVERY OTHER COURT WE
HAVE FOUND, WHEN HE HAS THE
WORDS "ONLY" OR "SOLELY" AND IF
I CAN BORROW FROM THE DECISION
IN TAURUS, THERE THE WORDS WERE
DEFECTIVE AND ANY AND WORDS
MEAN SOMETHING, AND EVEN UNDER
THE CONSTRUCT THAT YOUR GIVING
ME, OF THIS POLICY, LANGUAGE,
IT CAN READILY BE SEEN IN PART
BECAUSE OF VICARIOUS LIABILITY
AND NOTHING IN THE LANGUAGE
TELLS US THAT MS. GARCIA'S
NEGLIGENCE IS NOT COVERED UNDER
THIS TYPE OF PROVISION.
>> THE PROBLEM, THOUGH I HAVE
WITH WHAT YOU ARE SAYING IS
THAT IT IS NOT LIKE A CLAUSE IN
A LONG CONTRACT.
IT IS DEFINING WHO ELSE IS
COVERED N-AND, THEREFORE, SAYS
ANY OTHER PERSON OR
ORGANIZATIONALLY WITH RESPECT
TO LIABILITY BECAUSE OF ACT OR
OMISSIONS, I'M NOT SURE THAT
SAYING ANY OTHER PERSON OR
ORGANIZATION, BUT ONLY WITH
RESPECT TO LIABILITY, BECAUSE
OF ACTS OR OMISSIONS IS
NECESSARY AND AGAIN THAT I
REALIZE IS THE $7 MILLION
QUESTION.
>> WELL, ACTUALLY IT IS NOT A
$2 MILLION QUESTION, SO THAT IS
LUMPKIN ON THE RECORD, OTHER
CARRIERS HAVE PAID THEIR FAIR
SHARE OF THIS JUDGMENT.
IF THE COURT PLEASE, LET ME GET
BACK TO THAT QUESTION.
EVEN IF YOU READ IT EXACTLY AS
YOU ARE STATING IT, AND THAT IS,
BECAUSE OF THE LIABILITY,
ARISING OUT OF ACTS OR
OMISSIONS, EVEN UNDER THAT
LANGUAGE AND IF YOU READ THE
DISTRICT COURT'S ORIGINAL
DECISION ON THE MOTION TO
DISMISS, AND THIS IS A MOTION
TO DISMISS AND WE HAVE VERY
LITTLE IN THE WAY OF A RECORD,
THIS CASE QOFERBLY FITS WITHIN
THAT LANGUAGE.
BECAUSE -- COMFORTABLY FITS
WITHIN THE LANGUAGE BECAUSE
MS. GARCIA'S LIABILITY ROSE
BECAUSE OF MS. ANDERSON'S
FAILURE TO MAINTAIN THE CAR
THAT SHE WAS TOLD TO DRIVE.
UNDER NO SENSE IN A PRACTICAL
WORLD, SINCE YOU ASKED ME A
PRACTICAL QUESTION TO BEGIN
WITH, CAN IT BE SEEN THIS
HOUSEKEEPER SHOULD BE LEFT
WITHOUT COVERAGE WHEN HE WAS
DOING HER MASTER'S BIDDING AND
DRIVING AN AGING VOLVO AND THE
CAR WAS POORLY MAINTAINED AND
AS A RESULT --
>> DIDN'T YOU JUST INDICATE
EARLIER THAT THAT IS NOT THE
WAY THAT THIS COMPLAINT WAS
PLED?
THAT IT WAS NOT PLED THAT SHE
WAS LIABLE BECAUSE SOMEONE ELSE
FAILED TO DO SOMETHING, BUT
THAT SHE FAILED TO MAINTAIN IT,
AND THAT SHE HAD ACTS OF
NEGLIGENCE.
>> YOU ASKED WHETHER OR NOT SHE
COULD BE VICARIOUSLY LIABLE FOR
THE ACTS OF MS. ANDERSON AND
THE ANSWER TO THAT PLAINLY IS
NO.
HOWEVER, IF I MAY -- GO AHEAD,
JUSTICE.
>> I WAS ASKING YOU ABOUT HOW
THE CASE WAS ACTUALLY PLED.
I THOUGHT IT WAS PLED AS FAR AS
MS. GARCIA IS CONCERNED BASED
ON ACTIONS THAT SHE DID.
NOT BASED ON ACTIONS OF
MS. ANDERSON.
>> IT WAS PLED BASED ON ACTIONS
OR FAILURES TO ACT.
ACTS OR OMISSIONS OF BOTH.
THE WAY IT WAS PLED IN
PARAGRAPH 24 OF THE UNDERLYING
COMPLAINT IS MS. GARCIA WAS
NEGLIGENT IN THE WAY SHE DROVE
IT AND MS. GARCIA WAS NEGLIGENT
IN THE MAINTENANCE OBLIGATION,
MS. AND SON WAS NEGLIGENT IN
THE MAINTENANCE OBLIGATION.
MS. ANDERSON NEGLIGENTLY FAILED
TO MAINTAIN THE BRAKE PEDAL AS
DID MS. GARCIA.
AND EACH WERE ALLEGED TO HAVE
COMMITTED ACTS OF DIRECT
NEGLIGENCE AND IF A JER, WHEN I
WAS PREPARING FOR ARGUMENT,
HAVING TRIED CASES, IF YOU
CRAFT THE VERDICT FORM, ONE OF
QUESTIONS SURELY WILL BE WAS
THERE A FAILURE ON THE PART OF
MS. GARCIA TO MAINTAIN THE
VEHICLE, TO THE ARCHERS FANNED
THAT IS ANSWERED NO, BUT THE
VIRD FORM GOES FURTHER AND
FINDS THE ANSWER TO BE YES,
WITH RESPECT TO MS. ANDERSON,
PLAINLY AN ACT OR OMISSION OF
MS. ANDERSON, CAUSED MS. GARCIA
IN PART TO HAVE SUFFERED THIS
LIABILITY.
>> YOU AGREE THAT THE COMPLAINT
DOES NOT ALLEGE THAT THE --
MS. GARCIA IS VIE CARE YELLS
LIABLE FOR THE ACTS OF
MS. ANDERSON.
>> PLAINLY NOT.
>> AND YOU ALSO CONCEDE THAT IF
WE INTERPRETED THIS CLAUSE TO
RELATE ONLY TO VICARIOUS
LIABILITY YOU LOSE.
>> YES.
>> AND YOUR ARGUMENT US ALSO
YOU CAN SEE IF THE LANGUAGE,
BUT ONLY WITH RESPECT TO WERE
IN THERE, THEN IT WOULD CLEARLY
RELATE TO VICARIOUS LIABILITY.
>> NO, YOU DON'T AGREE WITH
THAT.
>> I WOULD SAY IT WOULD CARVE
OUT THE POSSIBILITY
MS. GARCIA'S SEPARATE
NEGLIGENCE WOULD BE COVERED,
WHICH WAS THE RESULT OF -- THE
COURT FOUND IN CONTAINER.
THAT IS THERE WAS NOTHING IN
THE POLICY LANGUAGE THAT A --
PRECLUDED RECOVERY FOR THE
ADDITIONAL INSURANCE --
SEPARATE NEGLIGENCE AND THE
"SOLELY" WOULD CONFINE IT TO
ACTS OF NEGLIGENCE OF THE NAMED
INSURED, WHY THE LANGUAGE IS
IMPORTANT.
YOU STILL THAT HAVE TO READ THE
REST OF THE CLAUSE WHICH
RELATES TO ACTS OR OMISSIONS
AND IF YOU GO TO ACTS OR
OMISSIONS AND I OFFER TO THE
COURT THE DECISION FROM EASTERN
DISTRICT OF PENNSYLVANIA IN
REGIS, KENTUCKY AND DYLAN AND
ILLINOIS AND THE AETNA CASE,
ACT OR OMISSIONS MEAN NOTHING
MORE THAN A DOING OR FAILING TO
DO SOMETHING.
THERE IS NOTHING ABOUT THAT
LANGUAGE THAT IMPARTS OR
REQUIRES NEGLIGENCE AND ONE OF
THE THINGS THIS COURT TAUGHT US
FOR MAN, MANY YEARS, GO BACK TO
ANDERSON AND CTC IS THERE IS
BETTER LANGUAGE THAT COULD HAVE
BEEN USED TO BRING HOME A
RESTRICTION ON COVERAGE WAS NOT
ENDED IN THAT VANTED THE COURT
WILL CONSTRUE THAT FAILURE
AGAINST THE INSURED'S COMPANY
THAT WROTE THE LANGUAGE.
WE HAVE GIVEN YOU --
>> I'M NOT SURE THAT COURTS
HAVE GONE SO FAR.
I THINK THEY SAID OBVIOUSLY IF
THE LANGUAGE IS AMBIGUOUS IT
COULD BE INTERPRETED TWO WAYS.
>> YES.
>> BUT I DON'T THINK THEY'VE
SAID IF THERE IS A BETTER WAY
TO WORD SOMETHING, THEN THAT
MAKES IT AMBIGUOUS.
THERE IS ALWAYS, SEEMS TO BE
ALWAYS A BETTER WAY TO WORD
SOMETHING.
>> WELL, I TRY.
>> AS WE GET DOWN THROUGH THIS,
WE CAN CUT OUT ALL OF THE TALK
AROUND THE FRINGESES AND COMES
DOWN TO THE SITUATION AS TO
WHETHER THE INSURING OR NAMED
INSURED,
THIS INSUREING, THE NAMING
OF WHO THE NAME INSURED IS
THAT STATUS LOST IF THERE IS
NEGLIGENCE ON THE PART OF
THE PERSON ALLEGED?
I MEAN, DOESN'T IT COME DOWN
TO HA?
>> THAT IS THE HEART.
>> THAT IS WHAT WE'RE
TALKING ABOUT.
AND WE TALK ABOUT THE
VICARIOUS, WE ARE TRYING TO
SUPERIMPOSE FLORIDA LAW WITH
REGARD TO VIE VICARIOUS
LIABILITY.
YOU CAN HAVE NO FAULT TO
OBTAIN IDENTIFICATION OF
THIS VICARIOUS LIABILITY AND
THAT IS WHAT MAKES THIS CASE
MORE COMPLEX THAN IT NEEDS
TO BE, ISN'T IT?
>> WELL, BE CAREFUL WITH
THAT ONLY BECAUSE THERE ARE
A LOT OF CIRKS WHERE A NAMED
INSURED MAY ASK ADDITIONAL
INSURED TO DO SOMETHING.
>> OH, I IT WILL HAPPEN WITH
YARD WORKER, YOU GIVE THEM
DEFECTIVE LADDER, SAW, IT
HAPPENS ALL OF THE TIME WITH
PERSONAL SERVICE KINDS OF
PEOPLE.
SO REALLY THE QUESTION COMES
DOWN:
DOES THIS CAUSE MEAN THAT IF
THERE IS SOME NEGLIGENCE ON
THE PART OF THE DYATIONAL
INSURED THAT CONTRIBUTES TO
THIS, DO THEY LOSE THEIR
STATUS AS AN INSURED?
OR MUST THEY BE FREE OF
FAULT AND HAVE FAULT
EXCLUSIVELY BECAUSE OF THE
NAMED INSURED?
ISN'T THAT --
>> IT IS.
I THINK YOU KNOW OUR
POSITION ON THAT.
>> I UNDERSTAND.
WE NEED TO KNOW PERIMETERS
SO WE DON'T TALK ABOUT
THINGSS WHERE WE NEED NOT
DO.
IT DOESN'T HAVE TO BE
DANGEROUS IN STREW MENTALLY
AAT ALL?
>> THAT IS TRUE.
IF YOU GET DOWN TO THE LOG,
THAT IS WHAT THE QUESTION
THE COURT HAS TO ANSWER.
>> THAT COMES BACK TO THE
QUESTION, DOES THIS CAUSE
THEN SAY THAT IT MUST BE
ONLY BASED ON THE NEGLIGENCE
OF THE NAMED INSURED?
>> AND WE WOULD TAKE THE
POSITION THAT IT DOES NOT
AND CAN MOT.
>> AMBIGUOUS.
>> AT THE VERY LEAST.
WE SET FOURTH ON WHY UNDER
FLORIDA.
>> WOULD YOU IT WILL US TO
THE EXTENT THAT YOU BELIEVE
THAT THIS COURT IN THE PAST
HAS ALREADY DECIDED SOME
PARTS OF THIS?
>> YOU HAVE DECIDED SOME
PARTS OF THIS, AND I ALREADY
HAVE A QUESTION SAYING THAT
RISING OUT OF JUSTICE
PARIENTE MUST NECESSARILY
MEAN SOMETHING DIFFERENT
BECAUSE OF, IF YOU LOOK AT
THE DECISION, THAT LANGUAGE
AS A RESULT OF, THAT IS VERY
SIMILAR, IF NOT A KISSING
COUSIN TO BECAUSE OF.
>> THE SAME AS RISING OUT
OF.
>> RATHER THAN ARISING OUT
OF.
HAS THIS COURT DETERMINED
THAT THIS CAUSE DOES OR DOES
NOT APLAY TO VICARIOUS
LIABILITY SITUATIONS ONLY?
>> THIS COURT HAS NOT
EXPRESSLY HELD THAT.
>> IF COURT HELD THAT THIS
CAUSE IS AM BIGOUS?
>> THIS COURT HAS NOT
EXPRESSLY HELD THAT.
WHAT THIS COURT DID IN
CONTAINER DAYS WELL THE WORD
OPERATIONS.
IF LIKE ME YOU THINK
OPERATIONS ARE NOTHING MORE
THAN ACT OR OH BITION, I
WOULD SAY YES.
I WOULD LIKE TO RESERVICE
THE REST OF MY TIME FOR
REBUTTAL.
THANK YOU.
>> GOOD MORNING.
MATE PLEASE THE COURT MY
NAME IS IRENE PORTER WITH
HICKS AND KNEALE ON BEHALF
OF FEDERAL INSURANCE
COMPANY.
I REALIZE WE ARE ONLY
DEALING WITH THE LAN
GHACHBLING SURING AGREEMENT,
THE REASON SKIED THE
PRACTICAL ASPECTS OF IT IS
THAT IN A SITUATION WHERE
BOTH THE HOMEOWNER IS BEING
SUED AND THEIR EMPLOYEE, YOU
TAKE OVER THE DEFENSE FOR
THE HOMEOWNER.
IT SEEMS TO ME, AND THAT IS
WHY IN TERMS OF TRYING TO
UNDERSTAND THE REASONABLE
APPLICATION OF THIS, THAT
BEG ABLE TO CONTROL THE
DEFENSE FOR THE EMPLOYEE FOR
WHOM YOU ARE ENSURED IS
GOING TO BE VICARIOUSLY
LIABLE AS AN EMPLOYER
IRRESPECTIVE OF IN STREW
MENTALLY THAT I IT WOULD
MEAN STHAENS THE COVERAGE
WOULD EXTEND TO BOTH.
JUST, AND THAT INSURANCE
COMPANIES WOULD WANT THAT TO
HAPPEN, BECAUSE AGAIN,
VICARIOUS LIABILITY IS GOING
TO, UNDER ALL CIRCUMSTANCES,
BE WHATEVER THE OF THE
NEGLIGENCE WAS, SO WITH THAT
AS A PREDICATE, TELL ME,
FIRST OF ALL, SOMETHING THAT
I HAVE SAID, THAT DOESN'T
MAKE PRACTICAL SENSE?
>> I THINK IT DOESN'T MAKE
-- WELL, --
>> IF I AM THE HEM OWNER, I
DON'T WANT MY EMPLOYEE TO BE
OUT THEREING SOMETHING THAT
IS GOING TO UNDERMINE THAT I
WANT TO BE ABLE TO CONTAIN
MY LIABILITY.
I AM GOING WANT THERE TO BE
A UNIFIED DEFENSE IF
POSSIBLE.
I MEAN, --
>> MANY VICARIOUSLY LIABLE
PARTIES DO LIKE TO DEFEND,
IF IT IS EM LOWEE, I HAVE
SEEN THAT HAPPEN, BUT THAT
IS JUST AS PRACTICAL MATTER
TO PROTECT THEMSELVES
NOTWITHSTANDING THEM, THEY
CAN DEFEND THEMSELVES AN
PROTECT THEMSELVES.
>> BUT THE IDEA YOU, THAT IS
WHY I ASKED, I FIRST THOUGHT
THIS WAS CASE WHERE THIS,
BECAUSE IT WAS OPERATION OF
A VEHICLE THAT IT WAS NOT
COMING UNDER THE HOMEOWNER'S
POLICY, THAT IS WHY THEY
COVERED MRS. ANDERSON FOR
HER VICARIOUS LIABILITY.
>> THEY DID.
>> ALL RIGHT.
>> AND GIVEN, THAT IT WOULD
SEEM THAT THE SAME BASIS
WOULD BE THAT WHATEVER I'M
BEING SUED FOR, I WANT TO
HAVE THAT UNDERLYING PERSON
THERE THROUGH MY SAME
POLICY.
>> NO.
I THINK IT IS THE OPPOSITE.
MRS. ANDERSON BOUGHT A BOL
POL SY FROM FEDERAL FOR
HERSELF AND FAMILY.
WE HAVE ADDITIONAL UNSURED
LANGUAGE, ANY OTHER PERSON
OR ORG ? I BLATION WITH
RESPECT TO LIABILITY BECAUSE
OF YOUR ACTS OR OMISSION,
WHAT THAT DOES IS
MRS. ANDERSON'S RISK WAS
UNDERWRITTEN, A CONTRACT WAS
MADE.
IF SOMEONE ELSE WAS
VICARIOUSLY LIABLE FOR HER
ACT, THERE IS NO INCREASE IN
THE RISK THAT WAS AREA IN
WRITTEN AND THERE IS NO
CHANGE IN THE PREMIUM.
THE OPPOSITE IS WHAT MISS
GARCIA IS TRYING TO IM PES
ON THE COMPANY.
SHE IS SAYING, IF ANYBODY'S
NEGLIGENCE CONTRIBUTED TO AN
ACCIDENT IN AND THE NAMED
INSURERED HAD SOME
NEGLIGENCE, HOWEVER SLIGHT,
OR WAS ALLEGED TO HAVE
NEGLIGENCE THEN EVERY
STRANGER TO THE CONTRACT WHO
WAS NEGLIGENT WHICH RESULTED
IN MRS. ARCHER'S INJURIES
SUDDENLY INSURED UNDER OUR
CONTRACT.
>> IF WE CHANGE THE
CIRCUMSTANCES HERE JUST
SLIGHTLY AND LET'S PUT MISS
GR JE ON A RIDING LAWNMOWER.
>> OKAY.
>> AND THE NEIGHBOR CHILD,
YOU KNOW, COMES OVER TO THE
YARD WHILE ON THE RIDING
LAWNMOWER.
AND THE SAME THING HAPPENS.
WHEN I SAY THE SAME THING,
THAT IS THAT THE RUBBER ON
THE PED APPROXIMATELY OF THE
RIDING LAWNMOWER IS GONE.
WARN, YOU KNOW, TO BE JUST
AS SLIPPERY AS IT POSSIBLY
CAN BE.
AND MISS GARCIA, YOU KNOW,
DOESN'T REALIZE SHE
SHOULDN'T BE HANDLING THAT
WITH SUCH A SLIPPERY GAS, SO
SHE RUNS INTO THE LITTLE
NEIGHBOR BOY AND IT ALL
HAPPENS ON THE PREMISES OF
THE HOMEOWNER.
NOW, ALMOST INSTINCTIVELY, I
THINK WE WOULD ALL SAY,
SURELY, THAT IS GOING TO BE
COVERED BY THE HOMEOWNER'S
POLICY.
NOW OBVIOUSLY, WE GOT TO
LACK AT THE LANGUAGE THEN,
BUT THE HOMEOWNER IS
RESPONSIBLE FOR THE
MAINTENANCE OF THE LAWNMOWER
THAT THEY PLACED IN THE
HANDS OF, OKAY, THE EMPLOYEE
MISS GARCIA TO MOW THE
GRASS, ALL RIGHT?
OF COURSE, AND IN OUR CASE,
YOUR CASE, YOU HAVE GOT THE
AUTOMOBILE AND IT IS AWAY,
BUT WHY WOULDN'T, IN THAT
TYPE HYPOTHETICAL WOULDN'T
THE HOMEOWNER BE SENTENCED?
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EVEN IF THEY WERE NOT
CONNECTED WITH HER.
>> ABSOLUTELY.
>> THAT IS EXACTLY WHAT
WOULD HAPPEN.
THIS CASE NOT ONLY
MRS. ANDERSON WAS SUED AND
THE OWNER FOR FAILING TO
MAINTAIN AND MRS. GARCIA,
BUT THEY SUED THE PUBLIC
SUPERMARKET, THEY SUED
GALAXY, THE OWNER OF THE
PREMISE FOR ALLOWING THE
DANGEROUS CONDITION WHERE
THE ACCIDENT COULD HAPPEN.
ALL OF THE SUDDEN, IF WE
SPREAD THE LANGUAGE WITH THE
STRANGE CONSTRUCTION THAT IS
BEING URGED PUBLIX, GALAXY
WOULD BE ADDITIONAL INSURED
ANYONE ELSE WHOSE ACTS
CONTRIBUTED TO THIS INJURY
WOULD HAVE COVERAGE, WE HAVE
NOT IN SPECKED THE PREM
CIRCUMSTANCE WE HAVE NOT
CHARGED A PREMIUM.
THAT WOULD BE ABSURD.
>> THAT IS A LITTLE BIT OF A
STRETCH, DON'T YOU THINK?
REALLY, I MEAN, IT WOULD BE
SOMEONE THAT IS USING
SOMETHING OR WITH A THEY ARE
DOING IS BECAUSE OF THE
NEGLIGENCE OF THE NAMED
INSURED.
CERTAINLY PUBLIX IS NOT
USING THAT VEHICLE, BUT THE
PROPERTY OWNER, BUT
MRS. GARCIA IS IN A
DIFFERENT CATEGORY, HER
NEGLIGENCE OPERATES WITH THE
NEGLIGENCE OF THIS --
>> BUT THIS IS AN AUTOMOBILE
POLICY.
IF WE USED THE LANGUAGE AS
BROADLY, IT COULD APPLY TO
ANY SITUATION.
WE DIP ENSURE THIS
AUTOMOBILE.
IT WASN'T SOMETHING WHERE
YOU INTENDED TO INSURE
ANYTHING IN CONNECTION WITH
THE AUTOMOBILE.
>> AGAIN, THAT IS WHAT I
SAID, THOUGH, YOU BURR
BECAUSE OF THIS NATURE OF
THIS POLICY COVERING
MRS. ANDERSON FOR THE
VICARIOUS LIABILITY OF HER
EMPLOYEE.
SHE WOULDN'T BE, YOU KNOW,
IF THERE WAS, IF SHE WERE
NOT IN THERE BECAUSE OF --
IT DOESN'T MATTER THAT
WHETHER RECOVERING FOR HER
OWN ACTS OR FOR VICARIOUS
LIABILITY.
SHE IS COVERED.
>> YES.
>> AND AS FAR AS THE
VICARIOUS LIABILITY, SINCE
THAT IS THE WHOLE, THAT IS
HE WHOLE PIE, YOU ARE
ENSURING THAT RISK.
IN OTHER WORDS, VIE
VICARIOUS IS 100%.
NOT A JOINT.
WE ARE ENSURING THE RIS OF
COURSE OUR INSURED ENTERS
INTO RELATIONSHIP THAT MAKES
HER VICARIOUSLY LIABILITY.
WE'RE ENSURING HER
LIABILITY.
THAT IS TRUE.
AND THERE IS ANOTHER REASON.
>> DO YOU AGREE THAT, IF
ONLY VICARIOUS LIABILITY,
HER LIABILITY US THE SAME AS
THE LIABLE OF THE NEGLIGENT?
>> SHE IS 100% LIABLE FOR
THE DAMINGS THAT ARE CAUSED
BY HER AGENT, THAT IS TRUE.
>> WELL, WHAT YOU ARE
RESPONDING TO IS A BIG TENT
TYPE OF THEORY IN WHICH
ANYED DAY THIS FITS WITHIN
THE TENT OF LIABILITY SIMPLY
BECAUSE YOUR ENSURED IS ONE
THAT FITS IN THAT TENT, THAT
THE COVERAGE EXTENDS TO
EVERYONE LIKE THE PUBLIC.
THAT IS -- I MEAN, BECAUSE
AS I UNDERSTAND WHAT YOU ARE
SAYING IS THAT THE
OPPOSITION SAYS BECAUSE YOUR
INSURED WAS A CONTRIBUTING
FACTOR THROUGH VICARIOUS
LIABILITY TO THIS ACCIDENT,
THEN THAT MAKES EVERYBODY
ELSE THAT WAS A CONTRIBUTOR
TO THE ACCIDENT ALSO INSURED
UNDER THIS POLICY.
>> THAT IS THEIR
INTERPRETATION.
I THINK THAT THEY HAVE
ARGUED AS TO MRS. GARCIA,
THE SAME ARGUMENT WOULD
APPLY TO FOR HIS VEIL UR TO
MAINTAIN THE VEHICLE AN
APPLY TO ANY --
>> CANE ASK ONE QUESTION.
>> SURE.
>> WHY, I MEAN, LET'S TALK
ABOUT THE REASONS FOR THIS.
IF, IF YOU HAD -- YOU CAN
ONLY BE VICARIOUSLY, IF YOU
ARE VICARIOUSLY LIABLE, ARE
YOU ADDITIONAL SECURED?
WHY DO YOU NEED TO BEDATIONAL
INSURED BECAUSE THAT RISK IS
COVERED ANYWAY?
WHAT IS THE REASON TO HAVE
AN ADDITIONAL INSURED?
>> THIS IS INTO THE POLICY
WHERE SOMEBODY WAS ADDED ON.
>> WE UNDERSTAND THAT.
>> THEY HAD REASONABLE
EXPECTATION OF COVERAGE.
WHY WOULD YOU ENSURE
SOMEBODY WHO IS VICARIOUSLY
LIABLE FOR YOUR INSURED?
BECAUSE IT IS A RISK YOU
HAVE UNDERWRITTEN, THAT
PERSON HAS A COMMON LAW
CLAIM AGAINST YOUR UNSURED.
YOUR INSURED IS LIABLE FOR
THAT ANYWAY.
>> AGAIN, WHY DOES THAT
ADDITIONAL PERSON BECOME A
NAMED INSURED.
ALL THE REASONS YOU ARE
SAYING IS FOR THE NAMED
INSURED?
THAT SORT OF SEEMS TO BE IN
CONFLICT.
>> I AM SORRY, THE PERSON
BECOMES ADDITIONAL INSURED.
>> RIGHT.
FOR NOTHING?
WHY, I MEAN, WHY?
YOU DON'T NEED THAT COVERAGE
BECAUSE ALL YOU ARE SAYING
IS THEY ARE ADDITIONAL
INSURED BUT ONLY FOR THE
LIABILITY OF THE NAMED
INSURED ANYWAY?
WHY, WHY DO YOU EVEN INCLUDE
THEM IN AS A NAMED UNSURED
THIS HE RISK IS COVERED?
WHY DO WE INCLUDE THE NAUMED
IN SURED?
>> WHY DO YOU HAVE THAT?
>> WHY DO WE HAVE PROVISION?
>> RIGHT.
IS COMMON PROVISION THAT IS
DEVELOPED IN THE INDUSTRY.
IT IS AUTOMOBILE.
>> THAT IS NOT AN ANSWER.
WHAT IS IT DESIGNED TO
COVER?
> IT IS DESIGNED TO COVER
SOMEONE WHO IS BEING HELD
LIABLE FOR THE INSURED.
THAT PERSON HAS COMMON LAW
EN DEM TY CLAIM AGAINST THE
INSURED AND THE INSURED
LIABILITY THAT CAUSED THOSE
DAMAGES.
>> YEAH, THE CLASSIC
EXAMPLE.
>> A CLASSIC EXAMPLE WOULD
BE, WELL, LET'S LOOK AT THE
FLORIDA CASE THAT USES THIS
LANGUAGE AND, I FORGOT THE
NAME AT THE MOMENT.
OLIVER VERSUS UNITED STATES
FIDELITY AND GUARANTEE
COMPANY.
THE OWNER OF A VEHICLE IN
STRUSED HIS VEHICLE TO A
PARKING SERVICE, THE VALLET
SERVICE, THE DRIVER OF THAT
SERVICE DROVE THE VEHICLE
INTO A PEDESTRIAN.
THE COMPANY'S POLICY HAD
THIS LANGUAGE.
UM, ANY OTHER PERSON FOR
LIABILITY BECAUSE OF THE
ALASKAS OR ADMISSION OF THE
NAMED INSURED, THE COURT
HELD THAT LANGUAGE WOULD
PROTECT THE OWNER OF THE
VEHICLE WHO HAD LIABILITY IN
PUTED UPON HIM UNDER FLORIDA
DOCTRINE AND HE BECAME
INSURED.
THAT MAKES SENSE.
BECAUSE IT IS THE INSURED
UPPERWRITTEN RISK THAT IS
BEING COVERED.
THE ACT OF THE EMPLOYEE OF
THE NAMED INSURERED, IN THAT
CASE WAS ADDED TO THE POLICY
AND WAS INSURED AND IT WAS A
BUSINESS, THAT WAS TAKEN
INTO ACCOUNT OF.
THE SAME HAS BEEN APPLIED BY
EVERY COURT THAT HAS LOOKED
AT THIS LANGUAGE.
NOW, AN AUTO OWNER, THIS
COURT TOLD INSURERS, LOOK TO
THE INDUSTRY TAN DAD, LACK
AT OTHER LANGUAGE THAT OTHER
CORTS ARE USING INTERPRETED
BY COURTS AS LIMITING,
CARRYING OUT INTENT.
WE LOOKED AT ALL THE COURTS
AROUND THE NATION THAT HAVE
OUR LANGUAGE THAT HAVE
INTERPRETED IT AS VICARIOUS
LIABILITY AND NOT COVERING
INSTANCES OF JOINT
NEGLIGENCE.
THEN, WE HAVE CASES IN
FLORIDA, THREE CASES IN
FLORIDA, WHICH HAVE LESS
LANGUAGE WHICH SAY WITH
RESPECT TO ACTS OR OMISSION
AND THE COURT STARTED
TELLING US GO LOOK AT THAT
CASE, GO LOOK AT THAT
LANGUAGE, IF YOU WANT TO
LIMIT TO VICARIOUS
LIABILITY, THUSE LANGUAGE.
>> LET ME ASK YOU ANOTHER
HYPOTHETICAL, SEE IF IT
WOULD PROVIDE COVERAGE?
IF A, A PARTNER AT A LAW
FIRM SAYS I AM GOING TO HAVE
A CHRISTMAS PARTY AT MY
HOUSE AN INVITE EVERYONE IN
THE LAW FIRM.
EVERYBODY COMES OVER.
AND SOMEBODY GETS HURT IN
THE HOUSE AND THEY SUE THE
LAW FIRM FOR NEGLIGENCE.
WOULD THAT LAW FIRM BE
COVERED UNDER THE PARTNER'S
HOMEOWNER INSURANCE?
>> YES, IT WOULD.
>> IT IS UNDER THIS
PROVISION?
>> YES.
>> BECAUSE THE LAW FIRM'S
LIABILITY IS BECAUSE OF THE
ACTS OR OMISSION OF AN
AGEGENCE, I AM ASSUMING
THERE WAS NEGLIGENCE IN
MAINTAINING THE PREMISE, NOW
IT WOULDN'T COVER EVERY
OTHER PERSON.
>> WHAT IF IT SERVED ALCOHOL
THAT CONTRIB BAUTED TO THE
PART, PLUS ALCOHOL BEVERAGE,
WOULD THERE BE COVERAGE
UNDER THAT?
DOES THAT CHANGE?
>> I AM SORRY, THE LAW FIRM
SERVED ALCOHOLIC BEVERAGE?
>> RIGHT.
>> NOT THE SENIOR PARTNER
WHO IS IN FACT THE AGENT OF
THE LAW FIRM? I MEAN, IN
THAT CASE, HIS ACT, THE LAW
FIRM IS VICARIOUSLY
LIABILITY FOR IT BECAUSE THE
LAW FIRM HAS TO ACT THROUGH
AGENT, WE WOULD BE MANAGE
AGE GEP.
WELL, IF THE LAW FIRM WAS
SUED BECAUSE OF VICARIOUS
LIABILITY AS WELL AS OWN
NEGLIGENCE, THIS WOULD BE
COVERAGE, AT LEAST IN PART,
IT WOULD BE VICARIOUS?
OR WOULD THERE?
>> NO.
AND I GUESS I DON'T
UNDERSTAND THE HYPOTHETICAL.
>> HE SAID HE HAS PROPERTY.
>> IT MAKE AS DIFFERENCE.
IF THERE IS NOTHING, THE LAW
FIRM DOES NOT WRONG, THERE
IS NO ACT OF NEGLIGENCE IT
IS PURELY VICARIOUS BECAUSE
OF THE OWNER.
IS IT, DOES IT MAKE A
DIFFERENCE IF THERE IS ACT
OF NEGLIGENCE ON THE PART OF
THE LAW FIRM?
SEPARATE AN APART FROM THE
LAND OWN NENSHIP.
THAT IS WHAT WE HAVE HERE.
THAT IS WHAT WE HAVE.
>> WHAT ELSE COULD THE LAW
FIRM HAVE DONE WHICH WAS NOT
ATTRIBUTABLE TO THE ACTS OF
AGENT AND EMPLOYEE AND
THEREFORE VIE CARRIER, IN
THAT HYPOTHETICAL.
>> WELL, THE LANDOWNER,
JUSTICE, HIS LAWYER FIRM
DOESN'T OWN HIS HOME.
SO THE QUESTION AGAIN,
PLEASE, BECAUSE IT IS THE
SAME THING.
IT IS A QUESTION OF
VICARIOUS OR IF YOU CAN DO
ONE THING WRONG, THAT YOU
ARE NO LONGER VIE CARRIER,
IT IS NO AT VICARIOUS
SITUATION, IT IS A JOINT
SEVERAL, IS THEIR COVERAGE
UPPER THAT?
FOR THE LAW FIRM?
>> IT DEFEND ON WHAT THE
ULTIMATE LIABILITY IS.
IF THE LAW FIRM DOES, IN
FACT, HAVE VICARIOUS
LIABILITY FOR THAT PORTION
OF THE DAMAGE IS ATLIB
BUTTEABLE TO THE AGENT'S
NENL GEPS, THERE IS COVERAGE
FOR, THAT BUT THERE IS NO
COVERAGE FOR THE DAMAGES
ATTRIBUTABLE TO THE LAY FIRM
SEPARATE AN INDEPENDENT
NEGLIGENCE.
>> IN THAT SITUATION, THERE
COULD BE A DUTY TO DEPEND.
I GUESS.
>> IN THE HYPOTHETICAL GIVEN.
>> OH, YES.
>> YES.
>> WELL, INVOLVED THAT.
>> WHETHER IT BE A DUTY TO
COVERAGE AND JUSTICE LEWIS
SAYS THERE WOULD BE A DUTY
TO DEFEND BECAUSE -- BECAUSE
THERE WAS VICARIOUS
LIABILITY ALLEGED AGAINST
THE LAW FIRM, YES.
>> HOW WOULD YOU DISTINGUISH
THAT FROM THIS CASE?
WHY WOULDN'T MISS GARCIA FOR
THAT PART OF THE BAD BRAKE,
WHATEVER IT IS, FOR WHICH
SHE MAY BE RESPONSEABLE?
>> BECAUSE THERE WITH A NO
RELATIONSHIP.
NO BASIS FOR A CLAIM OF
VICARIOUS LIABILITY ALLEGED.
>> AND THEY HAVE CONCEDED
THAT.
AND LIABILITY BECAUSE OF
ACTS OR OMISSION IS THE VERY
DEFINITION OF WHAT WE
LAWYERS AND JUDGES
UNDERSTAND OF THE CONCEPT OF
IMPUTED LIABILITY WHICH WE
CALL VICARIOUS LIABILITY.
INSURANCE COMPANY SHOULDN'T
HAVE TO USE A LEGAL TERM
THAT A PERSON BUYING A
POLICY MAY NEVER HAVE HEARD
OF OR EVEN UNDERSTAND TO
EXPRESS ITS INTENT, INSTEAD,
WE USED PLAIN LANGUAGE WHICH
DOES THAT.
WE HAVE USED UP A LOT OF
TIME WITH QUESTION, IF YOU
WANT TO BRING YOURSELF TO A
CONCLUSION.
WILL GAVE MINUTE TO DO THAT.
>> WELL, IN CONCLUSION THEN,
THIS COURT SHOULD FIND THAT
THERE IS NO AMBIGUITY, IT IS
IMPLEMENTED TO VICARIOUS
LIABILITY BASED ON THE PLAIN
LANGUAGE, BASED ON THIS
COURT'S DECISION IN AUTO
OWNERS TO USE THAT LANGUAGE,
BASED ON THIS COURT'S
DECISION AN CONSOLIDATION
CALL, AND ALL THE DECISION
AROUND THE COUNTRY WHO HAVE
INTERPRETED THIS LANGUAGE AS
LIMITED TO VICARIOUS.
THANK YOU.
>> MAY IT PLEASE THE COURT,
LET ME GO THROUGH.
>> WOULD YOU GO BACK TO HER.
I THINK THAT IS THE ESSENCE
OF WHAT THE ARGUMENT IS
ABOUT, IT IS A QUESTION
ABOUT WHETHER YOU NEED TO
HAVE THESE ALLEGATIONS OF
VICARIOUS RESPONSIBILITY,
DUE TO THE NEGLIGENCE OF
WHOMEVER THE, LAND OWNER,
WHATEVER IT IS, THEN, THE
QUESTION, IF THERE ARE
ALLEGATIONS, THEN, OF
SEPARATE NEGLIGENCE OR ONLY
SEPARATE NEGLIGENCE THEN,
YOU ARE NOT ADDITIONAL
INSURED AS I UNDERSTAND THE
POSITION.
>> THAT IS PLAINLY FEDERAL'S
POSITION.
OUR POSITION SIMPLY IS
BECAUSE IT IS NOT
UNAMBIGUOUSLY CONVEY THE
MEANING OF VICARIOUS
LIABILITY.
KIT MEAN SOMETHING SHORT OF
PROX ATE CAUSE BETWEEN AND
APROX ATE CAUSE IN THE LEGAL
CERTAIN, THESE POLICIES ARE
NOT WRITTEN FOR LAWYERS AND
JUDGE, THEY ARE WRITTEN TO
BE INTERPRETED BY PEOPLE WHO
BY THIS THE OR NARD RAILROAD
PERSON ON THE STREET.
SO ASCRIBING A MEANING OF
VICARIOUS LIABILITY BECAUSE
OF IS SOMETHING THAT,
PERHAPS, LAWYERS AN JUDGESS
CAN AGREE ON IS ONE IN TERP
TATION OF THE LANGUAGE, BUT
NOT THE ONLY COMPELLED IN
TEMP TATION OF THE LANGUAGE,
THERE IS NO INCREASE IN
PREMIUM ORRISK ISSUE HERE.
THIS IS UMBRELLA LIABILITY
POLICY.
IT ALSO HAS PRIMARY
COVERAGE.
IT IS SINGLE POLICY THAT
PROVIDES BOTH BENEFIT, IT IS
BROADLY WRITTEN TOEN SURE
STRANGERS TO THE INSURING
RELATIONSHIP.
>> BUT ALSO, JUSTICE WELLS'S
POINT THAT IS THE DEFENSE
ANYONE WHO TOUCHES UPON, WHY
IS THAT?
THAT IS THE WAIT AS BEEN
CHARACTERIZED AS TO GARCIA'S
POSITION.
IT RELATES TO IMPART, THE
FAULT OF THIS LADY NOT
MAINTAINING THIS VEHICLE.
>> IF THERE IS ANY FAULT IT
WOULD BE DESCRIBED THE
FAILURE OF FEDERAL TO DRAFT
LANGUAGE THAT LIMITS ITS
RISK TO THE SITUATIONS IT
NOW PARADES, THIS IS POST-CLAIM
UNDERWRIGHT AT ITS BEST, THE
POLICY WRITING WAS WRITTEN
TO ENSURE BROAD SPECTRUM OF
PEOPLE WHO ARE RESPONSE NOT
LIKE PU BL BLIX, PUBLIX HAS
NOD NEXT XUS, THAT IS A PUP
TENT, IT NOW IT IS RINGLING
BROS. BARNUM AND BAILEY,
THIS TENT HAS LIMITS TO IT.
IT WAYS BORN BY THE LANGUAGE
OF THE POLICY AND BY COMMON
SENSE.
>> YOUR ARGUMENT THAT IS
BECAUSE OF IT MEANS THE SAME
AS RISING OUT OF?
THAT IS WHAT YOU ARE SAYING?
>> THAT IS ONE REASONABLE IN
TERM TATION.
>> OKAY.
THE OTHER COURT, I KNOW THAT
A LOT OF COURTS HAVE
INTERPRETED BECAUSE OF,
RISING OUT OF AS ANY OF THEM
EQUATED TO?
>> NOT EXACTLY.
THEY HAVE COME CLOSE.
BY THE WAY, IN THE A LOT OF
COURTS HAVE INTERPRETED
BECAUSE OF WITH COMPUTER-
ASSISTED RESEARCH FEDERAL
UNEARTHED ABOUT FIVE CASE,
NONE OF WHICH ANALYZED THE
LANGUAGE BY CITING TO ANY
PRECEDENT THAT BECAUSE OF
MEANS VICARIOUS LIABILITY.
IN FACT, IF YOU LOOK AT THE
LONG ISLAND CASE WHICH THEY
SIDE TO, NO WHERE IN THAT
DECISION DOES IT EVEN SAY
THAT VICARIOUS LIABILITY IS
THE ONLY INTERPRETATION OF
THIS POLICY LANGUAGE, IT
ONCE INTERPRETATION, THAT I
CONCEDE FOR THE COURT, IT IS
NOT THE DRIVEN
INTERPRETATION, IT IS
CERTAINLY NOT THE MAN ON THE
STREET INTERPRETATION.
>> WOULD YOU AGLEE IF THERE
ARE TWO INTERPRETATIONS BUT
THE INTERPRETATION IT IS
ONLY FOR VICARIOUS LIABILITY
IS MORE REASONABLE THAN WE
DON'T KNOW GO THE, IF IT IS
ONLY IF THEY ARE EQUALLY
REASONABLE INTERPRETATIONS?
>> IF THE COURT PLEASE,
THERE IS NO WEIGHING
INVOLVED.
IF YOU LOOK AT THE 11th
CIRCUIT'S DECISION.
WE'LL NOT HAVE A YOU ARE
JURY DECIDE, AND BECAUSE I
CAN SORT OF SEE YOUR
ARGUMENT, BUT FRANKLY,
AGAIN, I KEEP ON COMING BACK
TO IT, AND BECAUSE SEEMS
PRETTY VONG THAT IS LIMITED
TO BECAUSE OF THE ACTS OR
OMISSIONS, I CAN'T GET
BEYOND THAT EVEN THOUGH I
SEE SOME OF THE PROP, I
THOUGHT THE PUP TENT AND
RINGLING BROS. WAS A GREAT
ORAL ARGUMENT ANALOGY, I
COME MEN YOU FOR IT, BUT I
STILL SEEM TO GO BACK TO
THAT IT IS THE MORE
REASONABLE IN TERM TATION IS
THE ONE THAT FEDERAL IS
ADVANCING.
>> HERE THESE PROBLEM WITH
IT.
THERE'S SO MANY DIFFERENT
WORDS WE CAN USE TO DEFINE
THE LIMIT OF LIABILITY UNDER
INSURANCE POLICY.
I HAVE DRAFTED INSURANCE
POLICY.
I HAVE READ HUNDRED, IF NOT
THOUSANDS IN MY PRACTICE
CAREER.
IF YOU LOOK AT THE VARIOUS
OF THAT EXACT LANGUAGE
BECAUSE OF, YOU WILL SEE
THAT THERE ARE SHADES OF
GRAY IN EVERY DECISION THAT
THE COURTS HAVE COME DOWN
WITH WITH EXCEPTION OF THOSE
FEW THAT FEDERAL HAS FOUND
FROM OTHER JURISDICTION,
NEVER FROM THIS COURT, NEVER
FROM THE STATE OF FLORIDA,
OLLY VERY, FOR EXAMPLE,
FOUND THE POLICY TO BE
AMBIGUOUS BECAUSE OF THE
PRESENCE OF AN EXCLUSION ON
THE POLICY, SO OLIVER NEVER
SQUARELY ADDRESSED ISSUE OF
BECAUSE OF, NO FLORIDA COURT
HAS.
HOWEVER, IN REGIS, THE
LANGUAGE WAR, I KNEW THIS
QUESTION MIGHT COME UP, AS
THE RESULT OF, AS THE RESULT
OF, TO ME, IS THE SAME AS
BECAUSE OF.
AND THAT COURT FOUND ARISING
OUT TO BE THE THE KISSING
COUSIN THE TRUE SENSE OF
ARISING OUT OF TO USE THE
WORDS THAT WERE AT ISSUE
INJUSTICE CAN TARE ROW'S
OPINION.
RAILROAD, AS WELL, THAT
ARISING OUT OF IN TORRES
WERE WORDS USED IN
EXCLUSION.
WE'RE HERE DEALING WITH
COVERAGE GRANT, COVERAGE
GRANTS ARE CONSTRUED BUT
HERE THERE IS ADDITIONAL
BURDEN ON THE INSURANCE
COMPANY BECAUSE THE INSURED
CLAUSES ARE TO BE MORE
PROUDLY CONSTRUED FWOR
REASONS: FIRST, YOU GOT TO
PROTECT THAT ADDITIONAL
INSURED, MORE IMPORTANTLY,
YOU GOT TO PROTECT MEMBERS
OF THE PUBLIC WHO YET RUN
OVER BY RIDING LAWN MORE,
WHO GET INJURED BECAUSE THE
HEDGE TRIMMER EXPLODED AND
PUT A LITTLE BOY'S EYE OUT.
VIEW EXHAUSTED YOUR TIME.
BRING YOUR FINAL THOUGHTS TO
A CONCLUSION.
>> IF THE COURT PLEASE, I
BELIEVE THIS LANGUAGE TO BE
AM BIG OUR, EVEN IF YOU
APPLY THE PLAIN AND
UNDISTILLED LANGUAGE BEFORE
YOU, IN MEMORY, YOU WOULD
NONETHELESS FIND THAT MISS
GR SEE A COVERED PERSON
BECAUSE SOMEONE GAVE HER A
CAR TO DRIVE THAT DID NOT
WORK PROPERLY.
>> THANK YOU.
>> THANK YOU FOR THE
PRESENTATION.
THE COURT WILL TAKE ITS
MORNING RECESS.
>> PLEASE RISE.