Fireman's Fund Ins. Co. v. Delores Kettleman , 248 F. App'x 126 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 17, 2007
No. 06-15377 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-61880-CV-FAM
FIREMAN'S FUND INSURANCE COMPANY,
Plaintiff-Counter-Defendant-Appellant,
versus
DELORES KETTLEMAN,
Defendant-Counter-Claimant-Appellee,
DONALD SOULIER,
individually and as the personal representative of
the Estate of Cindy Soulier,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 17, 2007)
Before DUBINA, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Fireman’s Fund Insurance Company (“Fireman’s Fund”) appeals the denial
of its motion for summary judgment and the grant of summary judgment in favor
of Delores Kettleman, Donald Soulier, and Donald Soulier as the personal
representative of the estate of Cindy Soulier. We affirm the district court’s
judgment.
BACKGROUND
On July 3, 2005, Kettleman, driving her brother’s Honda Accord with
permission, caused an automobile accident that injured Mr. Soulier and caused
Mrs. Soulier’s death. Mr. Soulier sought to recover damages from Kettleman on
his own behalf for the injuries he suffered, and on behalf of his deceased wife’s
estate. Kettleman’s brother, Dennis Cirone, held an automobile insurance policy
for the Accord from Liberty Mutual Insurance Company (“Liberty Mutual”).
Additionally, Cirone and his wife held an excess insurance policy from Fireman’s
Fund.
The Fireman’s Fund policy expressly provided for coverage of automobile
accidents involving an automobile covered both under the Fireman’s Fund policy
and under “a personal automobile policy that qualifies as required underlying
2
insurance.” Here, the Liberty Mutual policy was the Cirones’ required underlying
insurance. Fireman’s Fund advised Kettleman, however, that it would neither
cover nor defend her under its policy. Fireman’s Fund then filed a declaratory
judgment action, naming Kettleman and Soulier as defendants, and all three parties
moved for summary judgment.
The Fireman’s Fund policy declares that it will “follow form” of the
required underlying insurance. According to the Fireman’s Fund policy, “follow
form” means that Fireman’s Fund “will use the definitions, coverages, exclusions,
conditions, and other provisions of applicable required underlying insurance . . . to
determine coverage under this policy.” The parties agree that Kettleman was an
“insured” under the Liberty Mutual policy. The issue in the district court was
whether the “follow form” provision in the Fireman’s Fund policy required the use
of the definition of “insured” in the Liberty Mutual policy or that in the Fireman’s
Fund policy. The district court ruled that the Fireman’s Fund policy language
unambiguously required that Fireman’s Fund use the definition of “insured”
provided in the Liberty Mutual policy. Consequently, the court denied Fireman’s
Fund’s motion for summary judgment, granted the motions of Kettleman and
Soulier, and entered a final judgment pursuant to those orders.
3
STANDARD OF REVIEW
We review a grant or denial of summary judgment de novo. Holloman v.
Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). “Summary judgment is
appropriate when no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law.” Elan Pharm. Research Corp. v.
Employers Ins. of Wasau, 144 F.3d 1372, 1375 (11th Cir. 1998) (citing Fed. R.
Civ. P. 56(c)).
DISCUSSION
The parties disagree as to the proper interpretation of the Fireman’s Fund
policy. Kettleman and Soulier argue that the “follow form” provision in the
Fireman’s Fund policy requires that Fireman’s Fund provide coverage for the
accident because Kettleman was an “insured” under the Liberty Mutual policy.
Fireman’s Fund argues that the “follow form” provision in its policy did not extend
to the definition of “insured.” Instead, it argues, Kettleman, as a claimant under
the Fireman’s Fund policy, had to satisfy the definition of “insured” under that
policy as a threshold matter before coverage under the policy could be triggered.
The district court held that the unambiguous policy language supported the view of
Kettleman and Soulier. We agree.
The parties agree that New Jersey law applies to their dispute. The district
4
court properly recognized that it must resolve insurance contract disputes
according to the language of the policy. If the express language of a policy is
unambiguous, the “court is bound to enforce the policy as written.” Royal Ins. Co.
v. Rutgers Cas. Ins. Co., 638 A.2d 924, 927 (N.J. Super. Ct. App. Div. 1994).
Moreover, under a “follow form” policy provision, “the parties agree that the
coverage issues presented turn solely on the interpretation of the underlying
polic[y].” Houbigant, Inc. v. Fed. Ins. Co., 374 F.3d 192, 203 (3d Cir. 2004)
(applying New Jersey law) (quoting Piper Jaffray Co., Inc. v. Nat’l Union Fire Ins.
Co., 967 F.Supp. 1148, 1151 (D.Minn. 1997).
When, as here, an accident occurs involving an automobile covered by both
a required underlying automobile insurance policy and the Fireman’s Fund policy,
the unambiguous language of the Fireman’s Fund policy requires that the
definition of “insured” in the underlying policy apply. The Fireman’s Fund policy
expressly states that, in following form, it will “use the definitions” of an
underlying policy in such a case. Nowhere in its policy does Fireman’s Fund
exclude the definition of “insured” from its “follow form” requirements. Thus, the
Fireman’s Fund policy required that Fireman’s Fund determine coverage under the
policy here using the Liberty Mutual policy’s definition of “insured.” Because
Kettleman was an “insured” under the Liberty Mutual policy’s definition,
Fireman’s Fund was bound under its policy to cover Kettleman.
5
CONCLUSION
Accordingly, we affirm the district court’s grant of summary judgment in
favor of Kettleman and Soulier and its denial of Fireman’s Fund’s motion for
summary judgment.
AFFIRMED.
6