Filing # 85674468 E-Filed 02/28/2019 03:03:17 PM
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`
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`IN THE COUNTY COURT OF THE
`NINTH JUDICIAL CIRCUIT IN AND FOR
`ORANGE COUNTY, FLORIDA
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`CASE NO.: 2018-SC-033953-O
`Division 72
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`SPRINGBOK COLLECTIONS, LLC A/A/O
`CHWR, LLC D/B/A SMART RIDE
`WINDSHIELD REPAIR A/A/O DAVID
`ANGER,
`
`
`Plaintiff,
`
`
`v.
`
`PROGRESSIVE AMERICAN
`INSURANCE COMPANY,
`PROGRESSIVE DIRECT INSURANCE
`COMPANY, PROGRESSIVE SELECT
`INSURANCE COMPANY,
`
`
`Defendants.
`_______________________________/
`
`DEFENDANT’S MOTION TO DISMISS, OR ALTERNATIVELY
`MOTION TO STAY AND COMPEL APPRAISAL
`COMES NOW Defendant, PROGRESSIVE SELECT INSURANCE COMPANY (“Progres-
`sive”)1, by and through its undersigned counsel, hereby files its Motion to Dismiss, or
`alternatively Motion to Stay and Compel Appraisal and in support thereof states as fol-
`lows:
`
`Summary of Argument
`
`Appraisal provisions are an effective and inexpensive way to resolve disputes over
`the amount of an insured loss. Accordingly, Progressive invoked the appraisal clause of
`the subject policy to resolve the issues between the parties. Appraisal provisions are
`valid and enforceable clauses under Florida law, and the Court is obligated to compel
`
`
`
` 1
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` Counsel for Defendant has sent a Stipulation for Substitution of Proper Party to counsel for the Plaintiff,
`as Progressive Select Insurance is the entity who issued the subject policy. As such, Progressive Select
`Insurance hereby files this motion.
`
`COLE, SCOTT & KISSANE, P.A.
` TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
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`CASE NO.: 2018-SC-033953-O
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`appraisal where the only dispute under the amount of loss under an insurance policy is in
`dispute. In this case, Progressive has invoked the appraisal provision of the controlling
`policy in good faith and, accordingly, the Plaintiff should be compelled to complete ap-
`praisal and discovery should be stayed pending completion of the appraisal process.
`Facts and Allegations
`
`1. The above captioned matter is a first party claim for insurance benefits for
`$47.70. The Plaintiff, as assignee of David Anger, the policy holder, seeks payment for
`the repair/replacement of the windshield of the insured’s vehicle, from Progressive.
`2. Plaintiff repaired/replaced the windshield and took an assignment of bene-
`fits from Progressive's insured. The dispute in this lawsuit involves the cost to repair/re-
`place the windshield as is stated in the Complaint.
`3. Progressive does not dispute that coverage exists, nor does Progressive
`dispute the claim for the repair/replacement of the windshield. However, what Progres-
`sive does dispute is the amount of the claim. Progressive timely paid the amount neces-
`sary to repair the vehicle as required under the policy.
`4. According to Florida case law, including prior County Court decisions, and
`pursuant to the insurance contract at issue, the damage dispute in this case should have
`been properly resolved through appraisal, not a lawsuit.
`5. The Progressive policy issued to David Anger (the “Policy”), like most auto-
`mobile policies, provides a method for the insured and insurance company to resolve
`disputes regarding damages and values without the need for a lawsuit or litigation. This
`method is called Appraisal. The appraisal clause is set forth in the Policy, which is at-
`tached hereto as Exhibit “A”.
`6. The appraisal provision, which is included in the subject Progressive policy,
`states in relevant part:
`
`Appraisal. If we cannot agree with you on the amount of a
`loss, then we or you may demand an appraisal of the loss.
`2
`COLE, SCOTT & KISSANE, P.A.
` TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
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`CASE NO.: 2018-SC-033953-O
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`Within 30 days of any demand for an appraisal, each party
`shall appoint a competent and impartial appraiser and shall
`notify the other party of that appraiser’s identity. The apprais-
`ers will determine the amount of loss. If they fail to agree, the
`disagreement will be submitted to a qualified and impartial
`umpire chosen by the appraisers. If the two appraisers are
`unable to agree upon an umpire within 15 days, we or you
`may request that a judge of a court of record, in the county
`where you reside, select an umpire. The appraisers and um-
`pire will determine the amount of loss. The amount of loss
`agreed to by both appraisers, or by one appraiser and the um-
`pire, will be binding. You will pay your appraiser’s fees and
`expenses. We will pay our appraiser’s fees and expenses. All
`other expenses of the appraisal, including payment of the um-
`pire if one is selected, will be shared equally between us and
`you. Neither we nor you waive any rights under this policy by
`agreeing to an appraisal.
`
`7. Progressive has properly invoked the appraisal provision of the policy by
`filing a Notice Invoking Appraisal which also identified Progressive’s chosen appraiser.
`8. By filing this lawsuit, Plaintiff is attempting to rob Progressive of its rights
`under the agreement, and expose Progressive to increased costs and fees; expenses
`which Progressive contracted to avoid (and contemplated avoiding) when entering into
`the appraisal provision.
`
`Memorandum of Law
`
`9. Florida courts have consistently held that appraisal clauses are preferred
`over commencing litigation, as they provide an efficient and effective mechanism for the
`prompt resolution of claims and discourage the filing of needless lawsuits and litigation.
`Fla. Ins. Guar. Ass’n, Inc. v. Lustre, 163 So. 3d 624 (Fla. 2d DCA 2015); First Protective
`Ins. Co. v. Hess, 81 So. 3d 482, 485 (Fla. 1st DCA 2011); First Floridian Auto & Home
`Ins. Co. v. Myrick, 969 So. 2d 1121, 1125 (Fla. 2d DCA 2007). Florida law, in light of
`public policy considerations, dictates that all issues involving the right to arbitrate should
`be resolved in favor of arbitration rather than against it. Nationwide Prop. & Cas. Ins. v.
`Bobinski, 776 So. 2d 1047, 1049 (Fla. 5th DCA 2001).
`3
`COLE, SCOTT & KISSANE, P.A.
` TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
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`CASE NO.: 2018-SC-033953-O
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`10. On April 24, 2015, the Second DCA held that “we conclude that the issue
`concerns the amount of loss and is subject to appraisal.” Lustre. In the present
`action, the sole dispute is over the amount of the loss and is therefore subject to appraisal,
`not litigation.
`11. Where the dispute is in regards to the amount, this issue falls “squarely
`within the scope of the appraisal process – a function of the insurance policy and not
`of the judicial system.” Cincinnati Ins. Co. v. Cannon Ranch Partners, Inc., 40 Fla. L.
`Weekly D78, D79 (Fla. 2d DCA 2014) (emphasis added).
`12. Procedurally, either party may invoke the appraisal clause after a lawsuit is
`filed. Fla. Ins. Guar. Ass’n, Inc. v. Castilla, 18 So. 3d 703, 705 (Fla. 4th DCA 2009);
`Gonzalez v. State Farm Fire & Cas. Co., 805 So. 2d 814, 818 (Fla. 3d DCA 2000).
`13. Substantively, the Supreme Court of Florida held “[w]hen the insurer admits
`that there is a covered loss, but there is a disagreement on the amount of loss, it is for
`the appraisers to arrive at the amount to be paid.” Johnson v. Nationwide Mut. Ins. Co.,
`828 So. 2d 1021, 1025 (Fla. 2002) (quoting Gonzalez, 805 So. 2d at 816-17). Further-
`more, should the appraisal process result in an award of appraisal by an appraiser or
`umpire, Florida courts have held that the appraisal award is binding on the parties. John-
`son, 828 So. 2d at 1025.
`14. Once the appraisal clause is invoked, appraisal becomes a “condition prec-
`edent to the right of the insured to maintain an action on the policy.” Franko, 443 So. 2d
`at 172.
`
`15. “Appraisal clauses are treated similarly to arbitration clauses” for purposes
`of the standard of review on appeal from a trial court's decision denying an insurer's mo-
`tion to compel appraisal. Florida Ins. Guar. Ass'n, Inc. v. Castilla, 18 So. 3d 703 (Fla. 4th
`DCA 2009); see also Allstate Ins. Co. v. Suarez, 786 So. 2d 645, 646 (Fla. 3d DCA 2001);
`Franko, 443 So. 2d at 172 (Fla. 1st DCA 1983).
`
`4
`COLE, SCOTT & KISSANE, P.A.
` TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
`
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`CASE NO.: 2018-SC-033953-O
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` “A court must compel arbitration where an arbitration agreement and an
`16.
`arbitrable issue exists, and the right to arbitrate has not been waived.” Miller & Solomon
`Gen. Contractors, Inc. v. Brennan’s Glass Co., 824 So. 2d 288 (Fla. 4th DCA 2002) (quot-
`ing Gale Grp. v. Westinghouse Elec. Corp., 683 So. 2d 661, 663 (Fla. 5th DCA 1996)).
`17. Once appraisal provisions have been properly invoked, further proceedings
`should be conducted in accordance with the appraisal provisions in the insurance con-
`tract and not by litigation. See Allstate Ins. Co. v. Suarez, 833 So. 2d 762, 765 (Fla.
`2002). Where the right to arbitration is properly asserted, proceeding with the dispute in
`the courts instead of submitting the matter to arbitration constitutes a departure “from the
`essential requirements of law which cannot be adequately remedied on appeal.” Franko,
`443 So. 2d at 172.
`18. Plaintiff and its repair shop brethren have aggressively started mass filing
`nuisance lawsuits over nominal sums of money. These disputes would undoubtedly be
`more aptly resolved via the terms and conditions of the Policy. Therefore, it cannot be
`ignored that Plaintiff and its counsel's true motives are not justice, but to file lawsuits in
`an attempt to recover unnecessary and needlessly high attorneys’ fees.
`19. For these reasons, Progressive requests that this lawsuit be dismissed, as
`Progressive not only abided by the Policy, but also timely invoked their right to appraisal
`in good faith. As such, Progressive requests the parties be ordered to complete the ap-
`praisal process to resolve the disputed coverage amounts without judicial intervention, as
`contemplated by the true meaning of the Policy. Furthermore, Progressive requests this
`Court for an Order placing the case in abatement and to stay discovery, or allowing an
`extension of time to respond to the discovery propounded by Plaintiff, if any. As appraisal
`will likely settle these matters, commencing discovery would be dilatory and only for pur-
`poses of unjustly inflating attorney’s fees by Plaintiff’s counsel.
`
`5
`COLE, SCOTT & KISSANE, P.A.
` TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
`
`
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`CASE NO.: 2018-SC-033953-O
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`WHEREFORE, for the reasons stated above, Progressive Select Insurance moves
`this Honorable Court for an Order granting its Motion to Dismiss, or Alternatively Motion
`to Stay and Compel Appraisal, and for any further relief the Court deems just and proper.
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that on this 28th day of February, 2019, a true and correct
`copy of the foregoing was filed with the Clerk of Orange County by using the Florida
`Courts e-Filing Portal, which will send an automatic e-mail message to the following
`parties registered with the e-Filing Portal system: Bruce H. Kauffman, Esq., litigation-e-
`service@bhkpa.com, 4409 Hoffner Road, Suite 194, Orlando, FL 32812, (321) 972-
`6264/(321) 972-8290 (F), Attorney for Plaintiff, Springbok Collections, LLC a/a/o CHWR,
`LLC d/b/a Smart Ride Windshield Repair.
`
`
`
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`COLE, SCOTT & KISSANE, P.A.
`Counsel for Defendant PROGRESSIVE
`AMERICAN INSURANCE COMPANY,
`PROGRESSIVE DIRECT INSURANCE
`COMPANY, PROGRESSIVE SELECT
`INSURANCE COMPANY
`Tower Place, Suite 400
`1900 Summit Tower Boulevard
`Orlando, Florida 32810
`Telephone (904) 672-4073
`Facsimile (321) 972-0099
`Primary e-mail: paula.post@csklegal.com
`Secondary e-mail: alyssa.kersey@csklegal.com
`Alternate e-mail: tara.wilson@csklegal.com
`
`
`
`
`
`
`
`
`By: s/ Alyssa M. Kersey
`PAULA A. POST
`Florida Bar No.: 70315
`ALYSSA M. KERSEY
`Florida Bar No.: 115503
`
`6
`COLE, SCOTT & KISSANE, P.A.
` TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
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`February 28, 2019
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`Policy Number:
`Claim: 18-4026333
`Progressive Entity: Progressive Select Insurance Company
`
`69
`
` I
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` certify that each of the following is true regarding the attached records, to the best
`of my knowledge and belief:
`
`
`1. I am an employee familiar with the manner and process in which these
`records are created and maintained by virtue of my duties and
`responsibilities;
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`2. The records were made at or near the time of the occurrences of the
`matters set forth by, or from information transmitted by, people with
`knowledge of those matters;
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`3. The records were kept in the course of regularly conducted business
`activity; and
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`4. It was the regular practice of the business activity to make the record.
`
`
`
`Zachary Rose
`
`
`PO BOX 94621 / CLEVELAND / OHIO 44101 / 440-603-6273
`
`
`
`
`Form_SCTNID_CTGRY.FL09166489_DECPAGE
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`910514069 D IC94549 INS DECPAGE E POLWHITEFONT D2XJPC3KQJHFUGC5544GOOOEJG0001 RPUID TRACWHITEFONT
`
`PROGRESSIVE
`P.O. BOX 31260
`TAMPA, FL 33631
`
`DAVID E ANGER
`
`Auto Insurance
`Coverage Summary
`This is a copy of your
`Declarations Page
`
`69
`
`Policy Number:
`Underwritten by:
`Progressive Select Insurance Co
`April 20, 2018
`Policy Period: Dec 15, 2017 - Jun 15, 2018
`Page
`of1
`2
`
`progressive.com
`Online Service
`Make payments, check billing activity, update
`policy information or check status of a claim.
`
`1-800-776-4737
`For customer service and claims service,
`24 hours a day, 7 days a week.
`
`Your coverage began on December 15, 2017 at 12:01 a.m. This policy expires on June 15, 2018 at 12:01 a.m.
`
`This coverage summary replaces your prior one. Your insurance policy and any policy endorsem*nts contain a full explanation of your
`coverage. The policy contract is form 9611D FL (07/13). The contract is modified by form A139 FL (06/14).
`
`Drivers and resident relatives
` Additional information
`………………………………………………………………………………………………………………………………………………………..
`David E Anger
`Named insured
`………………………………………………………………………………………………………………………………………………………..
`Morgan A Anger
`
`Outline of coverage
`2014 HONDA ODYSSEY SPORT VAN
`VIN: 5FNRL5H61EB099814
`Garaging ZIP Code: 33569
`Primary use of the vehicle: Commute
`
`Length of vehicle ownership when policy started or vehicle added: At least 1 month but less than 1 year
`
`Premium
`Deductible
`Limits
`………………………………………………………………………………………………………………………………………………………..
`Liability To Others
`
`$10,000 each person/$20,000 each accident
` Bodily Injury Liability
`
`$10,000 each accident
` Property Damage Liability
`………………………………………………………………………………………………………………………………………………………..
`Personal Injury Protection/Deductible applies to
`$10,000
`
`$1,000/person
`Named Insured/Spouse/Dependent Resident Relatives Work Loss Excluded
`………………………………………………………………………………………………………………………………………………………..
`Uninsured Motorist - Nonstacked
`$10,000 each person/$20,000 each accident
`
`………………………………………………………………………………………………………………………………………………………..
`Comprehensive
`Actual Cash Value
`
`$1,000
`………………………………………………………………………………………………………………………………………………………..
`Collision
`Actual Cash Value
`$1,000
`
`………………………………………………………………………………………………………………………………………………………..
`Roadside Assistance
`
`………………………………………………………………………………………………………………………………………………………..
`+ Total 6 month policy premium
`F
`+ Includes the Deductible Savings Bank feature
`
`Other features and benefits
`………………………………………………………………………………………………………………………………………………………..
`F
`Deductible Savings Bank
`
`
`Form 6489 FL (09/16)
`
`4
`
`Continued
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`
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`910514069 D IC94549 INS DECPAGE E POLWHITEFONT D2XJPC3KQJHFUGC5544GOOOEJG0001 RPUID TRACWHITEFONT
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`Premium discounts
`
`Policy Number:
`
`69
`
` David E Anger
`Page
`2
`of
`2
`
`Policy
`………………………………………………………………………………………………………………………………………………………..
`69
`Electronic Funds Transfer (EFT), Continuous Insurance: Diamond and Paperless
`
`Vehicle
`………………………………………………………………………………………………………………………………………………………..
`2014 HONDA
`Anti-Lock Brakes, Driver and Passenger-side Airbag and Passive Anti-Theft
`ODYSSEY
`Device
`
`Lienholder information
`Lienholder
`Vehicle
`………………………………………………………………………………………………………………………………………………………..
`2014 HONDA ODYSSEY
`WELLS FARGO BANK
`5FNRL5H61EB099814
`MINNEAPOLIS, MN 55480
`
`Policyholder inquiries
`You may call Customer Service at 1-800-776-4737 to present inquiries or obtain information about coverage, and to
`obtain assistance with any complaints.
`
`Agent signature
`
`Company officers
`
`Secretary
`
`Form 6489 FL (09/16)
`
`
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`9611D FL 0713
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`FLORIDA
`AUTO POLICY
`
`Form 9611D FL (07/13)
`version 1.0
`
`
`
`CONTENTS
`
`INSURING AGREEMENT ................................................................................. 1
`
`GENERAL DEFINITIONS ................................................................................. 1
`
`PART I - LIABILITY TO OTHERS
`
`Insuring Agreement - Bodily Injury .............................................................. 2
`
`Insuring Agreement - Property Damage ...................................................... 2
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`Additional Definition .................................................................................... 3
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`Additional Payments .................................................................................... 3
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`Exclusions ................................................................................................... 4
`
`Limits of Liability .......................................................................................... 5
`
`Financial Responsibility Laws ..................................................................... 6
` Other Insurance .......................................................................................... 6
` Out-of-State Coverage ................................................................................ 7
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`PART II(A) - PERSONAL INJURY PROTECTION COVERAGE
`
`Insuring Agreement ..................................................................................... 7
`
`Additional Definitions ................................................................................... 7
`
`Exclusions ................................................................................................... 9
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`Extended Personal Injury Protection Coverage ..........................................10
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`Limit of Liability ..........................................................................................10
` Other Insurance .........................................................................................11
`
`Conditions ..................................................................................................11
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`PART II(B) - MEDICAL PAYMENTS COVERAGE
`
`Insuring Agreement ....................................................................................14
`
`Additional Definitions ..................................................................................15
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`Exclusions ..................................................................................................15
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`Limits of Liability .........................................................................................17
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`Unreasonable or Unnecessary Medical Expenses ....................................18
` Other Insurance .........................................................................................18
`
`PART III - UNINSURED MOTORIST COVERAGE
`
`Insuring Agreement ....................................................................................18
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`Additional Definitions ..................................................................................19
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`Exclusions ................................................................................................. 20
`
`Limits of Liability ........................................................................................ 21
` Other Insurance ........................................................................................ 22
`
`Trust Agreement ........................................................................................ 23
`
`i
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`
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`PART IV - DAMAGE TO A VEHICLE
`
`Insuring Agreement - Collision Coverage .................................................. 23
`
`Insuring Agreement - Comprehensive Coverage ...................................... 23
`
`Insuring Agreement - Pet Injury Coverage ................................................ 24
`
`Insuring Agreement - Full Comprehensive Window Glass Coverage ........ 25
`
`Insuring Agreement - Additional Custom Parts or Equipment Coverage ...... 25
`
`Insuring Agreement - Rental Reimbursem*nt Coverage ........................... 25
`
`Insuring Agreement - Loan/Lease Payoff Coverage .................................. 26
`
`Additional Definitions ................................................................................. 26
`
`Exclusions ................................................................................................. 27
`
`Limits of Liability ........................................................................................ 28
`
`Payment of Loss........................................................................................ 30
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`No Benefit to Bailee .................................................................................. 30
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`Loss Payable Clause ................................................................................. 30
` Other Sources of Recovery ....................................................................... 30
`
`Appraisal ................................................................................................... 30
`
`PART V - ROADSIDE ASSISTANCE COVERAGE
`
`Insuring Agreement ................................................................................... 31
`
`Additional Definitions ................................................................................. 31
`
`Exclusions ................................................................................................. 31
`
`Unauthorized Service Provider.................................................................. 32
` Other Insurance ........................................................................................ 32
`
`PART VI - DUTIES IN CASE OF AN ACCIDENT OR LOSS ........................... 32
`
`PART VII - GENERAL PROVISIONS
`
`Policy Period and Territory ......................................................................... 33
`
`Changes .................................................................................................... 33
`
`Duty to Report Changes ........................................................................... 34
`
`Settlement of Claims ................................................................................. 34
`
`Terms of Policy Conformed to Statutes ..................................................... 35
`
`Transfer of Interest .................................................................................... 35
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`Fraud or Misrepresentation ....................................................................... 35
`
`Payment of Premium and Fees ................................................................. 36
`
`Cancellation .............................................................................................. 36
`
`Cancellation Refund .................................................................................. 37
`
`Rate Increases .......................................................................................... 38
`
`Noncancelable Policy ................................................................................ 38
`
`Nonrenewal ............................................................................................... 38
`
`Automatic Termination ............................................................................... 39
`
`Legal Action Against Us............................................................................. 39
` Our Rights to Recover Payment ................................................................ 39
`
`Joint and Individual Interests ..................................................................... 40
`
`Bankruptcy ................................................................................................ 40
` Mediation .................................................................................................. 41
`
`ii
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`
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`FLORIDA AUTO POLICY
`
`INSURING AGREEMENT
`
`In return for your payment of the premium, we agree to insure you subject to all
`the terms, conditions, and limitations of this policy. We will insure you for the cov-
`erages and the limits of liability shown on this policy’s declarations page. Your
`policy consists of the policy contract, your insurance application, the declarations
`page, and all endorsem*nts to this policy.
`
`GENERAL DEFINITIONS
`
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`2.
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`
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`The following definitions apply throughout the policy. Defined terms are printed in bold-
`face type and have the same meaning whether in the singular, plural, or any other form.
`“Additional auto” means an auto you become the actual or beneficial owner
`1.
`
`of during the policy period that does not permanently replace an auto shown
`on the declarations page if:
` we insure all other autos you own;
`a.
` the additional auto is not covered by any other insurance policy;
`b.
` you notify us within 30 days of becoming the owner of the additional auto; and
`c.
` d.
` you pay any additional premium due.
` An additional auto will have the broadest coverage we provide for any auto
`shown on the declarations page. If you ask us to insure an additional auto
`more than 30 days after you become the actual or beneficial owner, any
`coverage we provide will begin at the time you request coverage.
` “Auto” means a land motor vehicle:
`a.
` of the private passenger, pickup body, or cargo van type;
`b.
` designed for operation principally upon public roads;
`c.
` with at least four wheels; and
`d.
` with a gross vehicle weight rating of 12,000 pounds or less, according to
`the manufacturer’s specifications.
` However, “auto” does not include step-vans, parcel delivery vans, or cargo cut-
`away vans or other vans with cabs separate from the cargo area.
` “Auto business” means the business of selling, leasing, repairing, parking,
`storing, servicing, delivering, or testing vehicles.
` “Bodily injury” means bodily harm, sickness, or disease, including death that
`results from bodily harm, sickness, or disease.
` “Covered auto” means:
` any auto or trailer shown on the declarations page for the coverages
`a.
`applicable to that auto or trailer;
` any additional auto;
`b.
` any replacement auto; or
`c.
` a trailer owned by you.
`d.
` “Declarations page” means the document showing your coverages, limits of
`liability, covered autos, premium, and other policy-related information. The
`declarations page may also be referred to as the Auto Insurance Coverage
`Summary.
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`3.
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`4.
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`5.
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`6.
`
`1
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`
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`7.
`8.
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`9.
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`“Occupying” means in, on, entering, or exiting.
`
` “Property damage” means physical damage to, destruction of, or loss of use
`of, tangible property.
` “Rated resident” means a person residing in the same household as you at the
`time of the loss who is not a relative, but only if that person is both:
` listed in the “Drivers and household residents” section on the declarations
`a.
`page; and
`b. not designated as either an “Excluded” or “List Only” driver.
`
`10. “Relative” means a person residing in the same household as you, and
`related to you by blood, marriage, or adoption, and includes a ward, step-
`child, or foster child. Your unmarried dependent children temporarily away
`from home will qualify as a relative if they intend to continue to reside in
`your household.
`11. “Replacement auto” means an auto that permanently replaces an auto
`shown on the declarations page. A replacement auto will have the same
`coverage as the auto it replaces if the replacement auto is not covered by
`any other insurance policy. However, if the auto being replaced had coverage
`under Part IV - Damage To A Vehicle, such coverage will apply to the replace-
`ment auto only during the first 30 days after you become the actual or ben-
`eficial owner unless you notify us within that 30-day period that you want us
`to extend coverage beyond the initial 30 days. If the auto being replaced did
`not have coverage under Part IV - Damage To A Vehicle, such coverage may
`be added, but the replacement auto will have no coverage under Part IV until
`you notify us of the replacement auto and ask us to add the coverage.
`12. “Trailer” means a non-motorized trailer, including a farm wagon or farm imple-
`ment, designed to be towed on public roads by an auto and not being used:
`a.
` for commercial purposes;
`
`b.
` as an office, store, or for display purposes; or
`
`c.
` as a passenger conveyance.
`
`13. “We”, “us”, and “our” mean the underwriting company providing the insurance, as
`shown on the declarations page.
`14. “You” and “your” mean:
` a person shown as a named insured on the declarations page; and
`
`a.
`
`b.
` the spouse of a named insured if residing in the same household at the
`time of the loss.
`
`
`
`PART I - LIABILITY TO OTHERS
`
`INSURING AGREEMENT - BODILY INJURY
`
`If you pay the premium for this coverage, we will pay damages for bodily injury
`for which an insured person becomes legally responsible because of an accident.
`
`INSURING AGREEMENT - PROPERTY DAMAGE
`
`If you pay the premium for this coverage, we will pay damages for property damage
`for which an insured person becomes legally responsible because of an accident.
`
`2
`
`
`
`Damages for bodily injury and property damage include prejudgment interest
`awarded against an insured person, where owed by law.
`
`If you pay the premium for Bodily Injury Liability and Property Damage Liability, we
`will settle or defend, at our option, any claim for bodily injury or property dam-
`age covered by this Part I. Our duty to settle or defend ends after we have paid the
`applicable limit of liability for the accident that is the basis of the lawsuit.
`
`If you pay the premium for Property Damage Liability only, we will settle or defend,
`at our option, any claim for property damage covered by this Part I. Our duty to
`settle or defend ends after we have paid the applicable limit of liability for the ac-
`cident that is the basis of the lawsuit.
`
`Satisfaction by an insured person of a judgment for bodily injury or property
`damage shall not be a condition precedent to the right or duty of us to make pay-
`ment for such bodily injury or property damage.
`
`ADDITIONAL DEFINITION
`
`When used in this Part I:
`“Insured person” means:
` you, a relative, or a rated resident with respect to an accident arising out of the
`a.
`ownership, maintenance, or use of an auto or trailer;
` any person with respect to an accident arising out of that person’s use of a covered
`auto with the permission of you, a relative, or a rated resident;
` any person or organization with respect only to vicarious liability for the acts
`or omissions of a person described in a or b above; and
` any Additional Interest shown on the declarations page with respect only to
`its liability for the acts or omissions of a person described in a or b above.
`
`b.
`
`c.
`
`d.
`
`ADDITIONAL PAYMENTS
`
`2.
`
`In addition to our limit of liability, we will pay for an insured person:
` all expenses we incur in the settlement of any claim or in the defense of an
`1.
`insured person in any lawsuit. This does not include attorney fees awarded
`or assessed against an insured person;
` interest accruing after entry of judgment, until we have paid, offered to pay, or
`deposited in court, that portion of the judgment which does not exceed our limit
`of liability. This does not apply if we have not been given notice of suit or the op-
`portunity to defend an insured person;
` the premium on any appeal bond or attachment bond required in any lawsuit
`we defend. We have no duty to purchase a bond in an amount exceeding our
`limit of liability, and we have no duty to apply for or furnish these bonds;
` up to $250 for a bail bond required because of an accident resulting in bodily
`injury or property damage covered under this Part I. We have no duty to
`apply for or furnish this bond; and
` reasonable expenses, including loss of earnings up to $200 per day, incurred
`at our request.
`
`3.
`
`4.
`
`5.
`
`3
`
`
`
`EXCLUSIONS - READ THE FOLLOWING EXCLUSIONS CAREFULLY. IF AN
`EXCLUSION APPLIES
