Rеdland Insurance Company appeals the trial court’s order granting summary judgment in favor of the defendants below. Because summary judgment was improperly granted, we reverse and remand for further proceedings.
CEM Site Constructors, Inc. (CEM), is a corporation owned and managed by Charles McLeod Jr. In December 2008, CEM applied for and received a commercial auto insurance policy from Redland with an effective date of December 10, 2008. Inсluded in the application was a “Commercial Auto Drivers List” that did not contain a definition for the term “driver.” The application and accompanying policy also did not indicate who should be named on the list. It was unclear whether the list should include only those employees who regularly drove for the company, or instead anyone who could conceivably be expected to drive for the company at any time.
On August 3, 2009, McLeod III was involved in an automobile accident whilе driving one of McLeod Jr.’s personal vehicles on company business. The accident resulted in the death of Jоhn P. Jorge, the driver of the other vehicle. Jorge’s personal representative sued CEM for his wrongful death, and CEM madе a claim with Redland for liability coverage under the policy. Redland denied the claim because of CEM’s failure to include McLeod III on the drivers list.
In February 2010, Redland filed a two-count declaratory action against a number of defendants, including CEM, McLeod Jr., McLeod III, and the personal representative of John P. Jorge. In the first count, Redland requested a declaration that it was entitled to rescission of the policy under section 627.409(1), Florida Statutes (2008), alleging that the failure to include McLeod III on the drivers list constituted a fraudulent, material misrepresentation rendеring the entire policy void ab initio. Redland’s second count sought a declaration that, even if the en
Following some discovery, the decedent’s personal representative moved for summary judgment, raising three grounds: first, that the terms of the аpplication were ambiguous, specifically because the term “driver” was not defined anywhere in the pоlicy; second, that McLeod III was not an employee at the time CEM completed and submitted the application; and third, that McLeod III qualified as an “insured” under the policy because he was not a member of McLeod Jr.’s household at the time of the collision.
At the summary judgment hearing, argument focused on the first ground. Specifically, the dеfendants below argued that because the term “driver” was not defined in the application, it was ambiguous, and therеfore as a matter of law there could be no misrepresentation regardless of any of the factual issues in dispute. The defendants relied upon Great Oaks Casualty Insurance Co. v. State Farm Mutual Automobile Insurance Co.,
The court granted the motion, noting that Great Oaks was controlling on the ambiguity issue because of Redland’s failure to define “driver” in its own application. Aftеr denying Redland’s Motion for Rehearing and/or Reconsideration, the court entered a final declaratory judgmеnt, and Redland timely appealed.
We agree with Redland that the issue of ambiguity in this case involves material questiоns of fact not appropriate for summary judgment. “[A] motion for summary judgment is not a substitute for a trial on the merits.” Hervey v. Alfonso,
Unlike the facts in Great Oaks, which were clear and not in dispute, there remain disputed issues of fact in the instant case. These issues include whether McLeod III was an employee of CEM,
Reversed and remanded.
Notes
. Although it appears from the record that Redland at some point had previously employed a “Non-Specified Operators” form, which defined "specified operator” (apparently another term Redland used for "driver”), the form was not included in CEM’s application or policy.
. Under the policy, an "insured” was defined in relevant part as "[CEM] for any covered 'auto,' " and "[ajnyone else whilе using with [CEM's] permission a covered 'auto' [CEM] own[s], hire[s] or borrow[s] except ... [CEM's] 'employee' if the covered 'auto' is owned by that ‘employee’ or a member of his or her household.”