Saturday, August 29, 2015

Intentional shooting was physical abuse within meaning of homeowner's policy exclusion

In Miglino v. Universal Property & Cas, Ins. Co., 
2015 WL 4930564 (August 19, 2015), the  Florida Fourth District Court of Appeal  ruled that an intentional shooting was "physical abuse" within the meaning of a homeowners policy exclusion of liability coverage for damages arising out of physical or mental abuse. Thus, the policy provided no coverage for an insured gun owner's alleged liability for negligent entrustment of the gun to his sister who shot her son-in-law in the midst of his divorce proceeding. The shooting clearly constituted physical maltreatment, physical injury, and hurt or injury by maltreatment. "Physical abuse" did not require tormenting or humiliating acts.

The Court applied the familiar principle,
Where the language in an insurance contract is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written. In construing insurance contracts, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect. Courts should avoid simply concentrating on certain limited provisions to the exclusion of the totality of others. However, policy language is considered to be ambiguous if the language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.
citing  Wash. Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla.2013)..

The court upheld a lower court's summary judgment and further found:

The lack of a definition of a term in a policy does not render it ambiguous or in need of interpretation by the courts, but rather such “terms must be given their every day meaning and should be read with regards to ordinary people’s skill and experience.” Harrington v. Citizens Prop. Ins. Corp., 54 So.3d 999, 1003 (Fla. 4th DCA 2010) (citation omitted). “Florida courts will often use legal and non-legal dictionaries to ascertain the plain meaning of words that appear in insurance policies.” Id. (citation omitted).

Black’s Law Dictionary defines “physical,” in pertinent part, as “[r]elating or pertaining to the body, as distinguished from the mind or soul or the emotions.” BLACK’S LAW DICTIONARY 1147 (6th ed.1990). In pertinent part, Black’s defines “abuse” as “[p]hysical or mental maltreatment, often resulting in mental, emotional, sexual, or physical injury,” and “[t]o injure (a person) physically or mentally.” BLACK’S LAW DICTIONARY 10 (8th ed.2004). Similarly, a non-legal dictionary defines abuse as “[t]o hurt or injure by maltreatment.” THE AMERICAN HERITAGE DESK DICTIONARY 5 (1981) (emphasis added).

The plain meaning of “physical abuse” encompasses the intentional shooting of Miglino by the sister. Such an act clearly constitutes “physical ... maltreatment,” “physical injury,” and “hurt or injur[y] by maltreatment” as described in the definitions used in deciding this issue.

Miglino argues that the exclusion does not apply because there was no torture, torment, humiliation, or degradation present in the sister’s act of shooting him. He cites case law from other jurisdictions interpreting the same or a highly similar exclusion. See, e.g., Merrimack Mut. Fire Ins. Co. v. Ramsey, 117 Conn.App. 769, 982 A.2d 195, 197–98 (Conn.App.Ct.2009) (finding that “[t]he stabbing of the defendant [twenty-four times] clearly constituted physical abuse within the language of the policy”); Auto–Owners Ins. Co. v. Am. Cent. Ins. Co., 739 So.2d 1078, 1081 (Ala.1999) (holding that acts of fraternity hazing, such as paddling, forcing consumption of foods, kicking, pushing, and hitting, “clearly constituted physical and mental abuse”). Although the facts of these cases included tormenting or humiliating acts, none of the courts held that these elements were necessary for the acts in question to rise to the level of physical abuse or for the policy exclusion to apply. Furthermore, we have found no definitions that include the words torture, torment, humiliate, or any of the other similar words that Miglino insists are a part of “physical abuse.” Common sense and common meaning dictate otherwise as well.