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Titan Indemnity Company v. Estes9/5/2002
s occasioned by the "multiple and reckless acts of negligence and breaches of duty, policy and mandate on the part of the City and its fire department." While the Estes family concedes that the bodily injury exclusion prevents recovery for pain and suffering, they assert, as wrongful death beneficiaries, they are entitled to recover other categories of damages not classified as bodily injury damages. These include the loss of the companionship and society of Hailey, the present net cash value of Hailey's life expectancy, and punitive damages. Although these damages may "arise out of" bodily injuries, the Estes family specifically assert that the public officials policy does not include the language "arising out of." Therefore, they contend, if Titan intended to exclude damages "arising out of" bodily injury, it should have specifically stated that.
. Again, the Estes family argues for a "strained interpretation" of the policy in order to create otherwise nonexistent coverage. It is a tortured construction of the bodily injury exclusion to interpret it in the manner advocated by the Estes family, since the exclusion clearly and unambiguously states that the insurance does not apply to bodily injury and bodily injury includes death. "Asserting a different theory of liability to perform an end-run around the exclusion strains the clear and unambiguous language of the provision out of all bounds . . . ." Warren, 797 So.2d at 1045 (quoting Love, 758 F. Supp. at 402). Accordingly, coverage under the public officials policy is barred by the bodily injury exclusion contained in that policy, and the trial court erred in finding this policy applicable in this instance.
CONCLUSION
. As a matter of law, the trial court erred in finding that the CGL and public officials policies applied in this instance and in granting summary judgment against Titan. The auto exclusion contained in the CGL policy bars coverage under that policy. Additionally, inasmuch as application of the auto exclusion precludes coverage under the CGL policy, the CGL policy is not considered excess insurance. Likewise, application of the bodily injury exclusion bars coverage under the public officials policy. If coverage was available under both policies, then each would serves as excess policies, but because the accident herein is categorically excluded under both policies, neither serve as excess insurance. Thus, the anti-cumulation clause of the business auto policy applies, and no recovery is allowed under the CGL policy or the public officials policy.
. Furthermore, when insurance policy language is clear and unambiguous, this Court will not adopt a strained interpretation in order to create nonexistent coverage that the insurer otherwise has not assumed. Therein lies the reversible error contained in the trial court's summary judgment ruling. Thus, where, as here, the terms of an insurance policy are clear, plain and explicit, the Court should not give a forced construction of the policy. Therefore, summary judgment here was not grounded upon the absence of a genuine issue of material fact nor was it anchored to any entitlement by the Estes family. The judgment of the trial court is reversed and rendered.
. REVERSED AND RENDERED.
SMITH, P.J., WALLER, COBB, DIAZ, EASLEY, AND CARLSON, JJ., CONCUR.
PITTMAN, C.J., AND McRAE, P.J., NOT PARTICIPATING.
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