Amica Mutual Ins. Co. v. David G. Morowitz

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 21, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-16489
Non-Argument Calendar
________________________
D.C. Docket No. 08-10085-CV-JLK
AMICA MUTUAL INSURANCE CO.,
Plaintiff-Counter-Defendant-
Appellee,
versus
DAVID G. MOROWITZ,
Defendant-Cross-Claimant-
Appellant,
JOSE H. GUTIERREZ,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 21, 2010)
Before EDMONDSON, BIRCH and COX, Circuit Judges.
PER CURIAM:

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Amica Mutual Insurance Co. issued a Florida Boat Policy to David Morowitz.
While fishing on his boat with Jose Gutierrez, a friend, Morowitz fell overboard and
was injured by the boat’s propeller. Morowitz filed suit against Gutierrez in Florida
state court alleging that Gutierrez was operating the boat at the time and that his
negligent operation caused Morowitz’s injury. Amica brought this declaratory
judgment action in federal district court seeking a determination that it had no
obligation to provide coverage to Gutierrez for his potential liability to Morowitz.
Morowitz filed an amended counterclaim against Amica seeking a determination that
Amica’s Boat Policy covered Gutierrez’s potential liability. Amica filed a motion for
summary judgment. The district court entered summary judgment in favor of Amica,
concluding that the Boat Policy provided no coverage for Gutierrez’s liability to
Morowitz. Morowitz appeals.
The relevant language from the Policy provides: “We will pay for bodily injury,
property damage or pollution damage an insured becomes legally obligated to pay
because of the ownership, maintenance or use of the boat.” (R.1-7, Ex. A, Boat
Policy at 14) (emphasis in original). The Policy defines “you” and “your” as “the
person named in the Declarations and spouse if a resident of the same household.”
(Id at 9.) In this case “you” means Morowitz. “Insured” is defined as “you, a family
member and any other person or organization using the boat with your permission,
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free of charge.” (Id.). The Policy includes the following exclusions: “We do not
provide liability coverage for: . . . others to cover their liability to you.” (Id. at 15)
(emphasis in original).
The issue presented on this appeal is the meaning of the term “others” as used
in this exclusionary clause. Morowitz argues that the Policy defines “others” in the
General Limitations and Exclusions section as anyone operating the boat for pay.
(Appellant’s Br. at 19.) And, because Gutierrez was using Morowitz’s boat with
permission free of charge, Gutierrez was an “insured” and a person cannot be both an
“insured” and an “other.” Morowitz also contends that the exclusionary clause is
ambiguous and should be construed against Amica because it drafted the agreement.
Amica counters that the Policy unambiguously excludes liability coverage for any
liability Gutierrez may have to Morowitz. Basically, Amica contends that “others”
means anyone other than the persons named in the Declarations – in this case
Morowitz.
We assume for purposes of this appeal that Gutierrez was using Morowitz’s
boat with permission. Thus, we assume that Gutierrez is an “insured.” But coverage
for Gutierrez may be excluded even though he is an “insured.” In the exclusions
section, the Policy states: “We do not provide liability coverage for: . . . others to
cover their liability to you.” (R.1-7, Ex. A, Boat Policy at 15) (emphasis in original).
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If Gutierrez is an “other,” the Policy does not cover any liability he may have to
Morowitz. On the other hand, if Gutierrez is not an “other,” the Policy covers his
liability to Morowitz.
On appeal, Morowitz contends that the General Limitations and Exclusions
section of the Policy defines “others” as anyone operating the boat for pay.
(Appellant’s Br. at 19.) This argument is based upon a section entitled “Benefit to
Others” that says “[n]o person or organization having custody of your insured
property and being paid for services, shall benefit from this insurance.” (R.1-7, Ex.
A, Boat Policy at 11) (emphasis in original). Amica contends that Morowitz’s
agrument that the Policy defines “others” has been waived because Morowitz did not
present that argument to the district court. And, Amica contends, the argument is
meritless. We agree with both of Amica’s contentions. In the district court,
Morowitz argued that the term is “undefined,” and as a result, is ambiguous. The
argument that the term was defined has been waived, but the argument is also
meritless. The General Limitations and Exclusion section is not intended to provide
definitions of terms contained in the Policy. The Policy contains a Definitions section
in which “others” is not defined. So, because the insurer chose to not define “[others,]
the common definition of the term should prevail.” Auto-Owners Ins. Co. v. Above
All Roofing, LLC, 924 So. 2d 842, 847 (Fla. 2d DCA 2006) (citation omitted).
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The district court held that the term “others” is not ambiguous, as used here,
and clearly means anyone other than Morowitz. (R.3-74 at 11-12.) We agree with
the district court’s analysis and conclusion that the exclusion applies to Morowitz’s
claim against Gutierrez.
AFFIRMED.
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