174 So. 3d 479
Fla. Dist. Ct. App.2015Background
- Insured (Harvey Stein) lent a gun to his sister, who then intentionally shot the appellant (Salvatore Miglino) outside her home during a family divorce conflict.
- Miglino sued the sister and Stein (including a negligent entrustment claim against Stein) for personal injuries from the shooting.
- Universal Property & Casualty initially defended Stein under a reservation of rights, then sued for a declaratory judgment that it had no duty to defend or indemnify under the homeowner policy.
- The policy conditioned coverage on bodily injury caused by an "occurrence" but contained exclusion k: losses "arising out of sexual molestation, corporal punishment or physical or mental abuse." The policy did not define "physical abuse."
- The trial court granted Universal’s summary final judgment; this appeal addresses whether the policy exclusion for "physical abuse" bars coverage for the intentional shooting.
Issues
| Issue | Miglino's Argument | Universal's Argument | Held |
|---|---|---|---|
| Whether exclusion k ("physical or mental abuse") excludes coverage for an intentional shooting | "Physical abuse" requires more (torture, humiliation, degradation); shooting doesn't meet those definitions, so exclusion should not apply | The plain meaning of "physical abuse" includes bodily maltreatment or physical injury such as an intentional shooting, so exclusion applies | Exclusion applies; shooting falls within ordinary meaning of "physical abuse," so no duty to defend or indemnify |
| Whether undefined term "physical abuse" is ambiguous requiring narrower construction against insurer | Term is ambiguous; needs judicial gloss to avoid unfair application | Term is unambiguous and should receive its everyday meaning using dictionaries; no ambiguity exists | Term is unambiguous; court applies common‑sense/dictionary meaning to include intentional physical harm |
Key Cases Cited
- Volusia Cnty. v. Aberdeen at Ormond Beach, 760 So. 2d 126 (Fla. 2000) (standard of review for summary judgment)
- Wash. Nat’l Ins. Corp. v. Ruderman, 117 So. 3d 943 (Fla. 2013) (plain‑meaning rule and approach to insurance contract interpretation)
- Harrington v. Citizens Prop. Ins. Corp., 54 So. 3d 999 (Fla. 4th DCA 2010) (undefined policy terms given ordinary meaning; use of dictionaries)
- Jim Black & Assocs., Inc. v. Transcon. Ins. Co., 932 So. 2d 516 (Fla. 2d DCA 2006) (reservation of rights defense and potential reimbursement when no duty to defend)
- Merrimack Mut. Fire Ins. Co. v. Ramsey, 982 A.2d 195 (Conn. App. Ct. 2009) (example of stabbing deemed "physical abuse" under similar exclusion)
- Auto‑Owners Ins. Co. v. Am. Cent. Ins. Co., 739 So. 2d 1078 (Ala. 1999) (fraternity hazing injuries held to fall within "physical and mental abuse")