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First Protective Insurance Co. v. Featherston7/27/2005
This is a consolidated appeal of three separate cases. In case number 2D04-678, First Protective Insurance Company seeks review of the summary final judgment determining that a homeowner's insurance policy issued to Hisako Featherston's husband provided coverage for Donald and Catherine Thornhill's claim against Featherston for the wrongful death of their daughter Hannah. We conclude that the trial court erred in determining that there was coverage because coverage is excluded as a matter of law by the business exclusion as clarified by the home day care endorsement of the policy. Accordingly, we reverse and remand for entry of summary judgment in favor of First Protective.
In case number 2D04-2811, First Protective seeks review of the final judgment awarding Featherston attorney's fees as a prevailing party pursuant to section 627.428, Florida Statutes (1999). In case number 2D04-3692, First Protective seeks review of the final judgment awarding the Thornhills costs as a prevailing party. Because we reverse the summary judgment in favor of both Featherston and the Thornhills, the awards of prevailing party attorney's fees and costs must be reversed as well.
On August 18, 1999, fourteen-month-old Hannah Thornhill stopped breathing while being cared for by Featherston in Featherston's home. Thereafter, the Thornhills filed a personal injury lawsuit against Featherston. Subsequent to filing suit, Hannah died, and the lawsuit was amended to assert a claim for wrongful death. Featherston's husband has a homeowner's insurance policy with First Protective, and First Protective is providing Featherston with a defense against the Thornhills' claim pursuant to a reservation of rights. However, First Protective filed this declaratory action against Featherston and the Thornhills (together "Defendants") seeking a judgment that it has no obligation to provide coverage for the lawsuit under Featherston's policy because the policy excludes coverage for bodily injury arising out of or in connection with a home day care business engaged in by an insured.
The policy that was effective during the incident provides personal liability coverage for claims against an insured for damages due to bodily injury. This coverage, which is Coverage E in Section II-Liability Coverages of the policy, provides for a defense against suit and payment up to the liability limit for damages for which the insured is legally liable. The policy contains a business exclusion in subsection 1.b. of Section II-Exclusions, which excludes coverage for bodily injury " rising out of or in connection with a 'business' engaged in by an 'insured.' " The policy also contains a standard form home day care endorsement which provides, in pertinent part:
If an "insured" regularly provides home day care services to a person or persons other than "insureds" and receives monetary or other compensation for such services, that enterprise is a "business." Mutual exchange of home day care services, however, is not considered compensation. The rendering of home day care services by an "insured" to a relative of an "insured" is not considered a "business."
Therefore, with respect to a home day care enterprise which is considered to be a "business," this policy:
1. Does not provide Section II-Liability Coverages because a "business" of an "insured" is excluded under exclusion 1.b. of Section II-Exclusions . . . .
The endorsement contains the following sentence at the bottom of the endorsement: "This endorsement does not constitute a reduction of coverage."
After some initial discovery, Defendants moved for summary judgment. Defendants argued that the home day care endorsemen
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