Catalina West Homeowners Association, Inc. v. First Community Insurance Company

Third District Court of Appeal

State of Florida

Opinion filed June 18, 2025.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1860

Lower Tribunal No. 22-602

________________

Catalina West Homeowners Association, Inc.,

Appellant,

vs.

First Community Insurance Company, et al.,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Gina

Beovides, Judge.

Easley Appellate Practice, PLLC, and Dorothy F. Easley; and Graham

Legal, P.A., and Dillon Graham, III, for appellant.

Dinsmore & Shohl, LLP, and Kathryn L. Ender and Janice Lopez, for

appellee, First Community Insurance Company.

Before FERNANDEZ, BOKOR and GOODEN, JJ.

GOODEN, J.

Appellant Catalina West Homeowners Association, Inc. appeals a final

declaratory judgment in favor of Appellee First Community Insurance

Company finding that First Community does not have a duty to defend or

indemnify. Because we find that the plain and unambiguous terms of the

insurance policy do not provide insurance coverage for this incident, we

affirm in all respects.

I.

On November 5, 2019, Daniel Macko was ambushed and shot by

unknown assailants at his home located in the Catalina West development

in Cutler Bay, Florida. The assailants gained unrestricted access to the

development. As a result of his injuries, Macko tragically passed away.

The Personal Representative of the Estate of Daniel Macko filed suit

against Catalina West and others for negligent maintenance and security.

First Community Insurance Company issued a businessowners policy to

Catalina West for the pertinent policy period. It provided a defense to

Catalina West under a reservation of rights. The relevant terms of the policy

are:

BUSINESSOWNERS COVERAGE FORM

Various provisions in this policy restrict coverage. Read the

entire policy carefully to determine rights, duties and what is and

is not covered.

2

Throughout this Coverage Form the words “you” and “your” refer

to the Named Insured shown in the Declarations. The words

“we”, “us” and “our” refer to the Company providing this

insurance.

In Section II – Liability, the word “insured” means any person or

organization qualifying as such under Paragraph C. Who is An

Insured.

Other words and phrases that appear in quotation marks have

special meaning. Refer to Paragraph H. Property Definitions in

Section I – Property and Paragraph F. Liability and Medical

Expenses Definitions in Section II – Liability.

...

SECTION II – LIABILITY

1. Business Liability

a. We will pay those sums that the insured becomes

legally obligated to pay as damages because of

“bodily injury”, “property damage” or “personal and

advertising insured” to which this insurance applies.

We will have the right and duty to defend the insured

any “suit” seeking those damages. However, we will

have not duty to defend the insured against any “suit”

seeking damages for “bodily injury”, “property

damage” or “personal and advertising insured”, to

which this insurance does not apply. . . .

...

b. This insurance applies:

(1) To “bodily injury” or “property damage” only if:

(a) The “bodily injury” or “property damage”

is caused by an “occurrence” that takes

place in the “coverage territory”;

3

(b) The “bodily injury” or “property damage”

occurs during the policy period; and

...

B. Exclusions

1. Applicable to Business Liability Coverage

This insurance does not apply to:

a. Expected or Intended Injury

“Bodily injury” or “property damage” expected or

intended from the standpoint of the insured. This

exclusion does not apply to “bodily injury” resulting from

the use of reasonable force to protect persons or

property.

...

r. Criminal Acts

“Personal and advertising injury” arising out of a criminal

act committed by or at the direction of the insured.

...

F. Liability And Medical Expenses Definitions

...

13. “Occurrence” means an accident, including

continuous or repeated exposure to substantially the

same general harmful conditions.

An endorsement modified the policy and added a “Physical and Sexual

Abuse Exclusion.” It reads:

This endorsement modified insurance provided under the

following:

4

BUSINESSOWNERS COVERAGE FORM

The following is added to SECTION II—LIABILITY, B.

Exclusions:

This insurance does not apply to “bodily injury”, “property

damage”, “personal and advertising injury”, medical payments or

any other damages directly or indirectly because of, arising out

of, related to or in any other way connected to actual, threatened

or attempted:

a. Physical abuse, physical molestation, habitual

neglect; or

b. Sexual abuse, sexual assault, sexual battery, sexual

molestation; or

c. Licentious, amoral, immoral or similar behavior;

that was committed or alleged to have been committed by the

insured, their “employees”, any person acting on behalf of the

insured, customers, patrons, guests or any other person on the

insured’s premises.

This exclusion applies to all causes of action arising out of any

of the acts enumerated above, including but not limited to:

a. Allegations of negligent hiring, placement or training

of employees;

b. Improper or non-existent supervision of employees,

patrons or guests;

c. Negligence in failing to protect customers, patrons or

guests;

d. Error or omissions relating to any of the above

mentioned acts.

In addition, this exclusion applies regardless of whether the acts

enumerated above were committed intentionally, negligently,

inadvertently, or with the belief, erroneous or otherwise, that the

other party consented and had the legal and mental capacity to

consent thereto.

5

This exclusion applies regardless of whether or not the insured,

their “employees”, any person acting on behalf of insured,

customers, patrons or guests, are actually charged with or

convicted of a crime.

First Community Insurance Company subsequently filed a declaratory

judgment action seeking a declaration that it had no duty to defend or

indemnify. It maintained its policy did not provide insurance coverage for the

incident, and relied on the Physical and Sexual Abuse Exclusion. Catalina

West denied the allegations.

First Community Insurance Company moved for summary judgment.

In support, it cited Miglino v. Universal Property & Casualty Insurance Co.,

174 So. 3d 479 (Fla. 4th DCA 2015)—a case interpreting a similar exclusion.

Catalina West countered that physical abuse is a compound word, and

therefore, has a unique meaning. It maintained that it is abuse between

domestic partners or those with a trust relationship and there was no such

relationship between Macko and the assailants. It distinguished Miglino as

only involving family members.

After hearing from the parties, the trial court granted the motion finding

that First Community Insurance Company does not have a duty to defend or

indemnify Catalina West. Declining to adopt a novel definition of physical

abuse, it explained that “[t]here is nothing in the Miglino decision to suggest

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that the Miglino court’s definition of ‘physical abuse’ was situational and/or

that a new definition should be supplied depending on the facts of the case.”

As a result, it entered final summary judgment in favor of First Community

Insurance Company. This appeal followed.

II.

Interpretation of an insurance policy is a question of law. Our review

is de novo. Penzer v. Transp. Ins. Co., 29 So. 3d 1000, 1005 (Fla. 2010).

III.

A. Duty to Defend and Duty to Indemnify

An insurance company’s duty to defend is distinct from and broader

than its duty to indemnify. “The allegations of the complaint govern the duty

of the insurer to defend.” Nat’l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358

So. 2d 533, 536 (Fla. 1977). “The question of duty to defend is answered

based upon a review of the underlying pleadings filed against the insured as

well as the insurance policy itself.” Nationwide Mut. Fire Ins. Co. v.

Advanced Cooling & Heating, Inc., 126 So. 3d 385, 387 (Fla. 4th DCA 2013).

If the allegations fairly bring the case within the terms of the policy, the duty

to defend the underlying lawsuit arises. Id. at 388. However, if the

allegations do not fall within the insuring agreement or fall within an

exclusion, the duty to defend never arises. See Reliance Ins. Co. v. Royal

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Motorcar Corp., 534 So. 2d 922, 923 (Fla. 4th DCA 1988) (“There is no

obligation on an insurer to defend an action against its insured when the

pleading in question shows the applicability of a policy exclusion.”); Fed. Ins.

Co. v. Applestein, 377 So. 2d 229, 231 (Fla. 3d DCA 1979) (“No obligation

to defend the action, much less to pay any resulting judgment, arises when

the pleading in question shows either the non-existence of coverage or the

applicability of a policy exclusion.”).

The duty to indemnify is determined by looking beyond the underlying

complaint. It is governed by the facts of the case. Hagen v. Aetna Cas. &

Sur. Co., 675 So. 2d 963, 965 (Fla. 5th DCA 1996). Courts analyze the terms

of the policy in light of those facts. Alicea Enters., Inc. v. Nationwide Ins. Co.

of Am., Inc., 252 So. 3d 799, 802 (Fla. 2d DCA 2018).

If the duty to defend does not exist, then the duty to indemnify likewise

does not exist. See WellCare of Fla., Inc. v. Am. Int’l Specialty Lines Ins.

Co., 16 So. 3d 904, 906 (Fla. 2d DCA 2009) (“[T]he duty to indemnify is

narrower than the duty to defend and thus cannot exist if there is no duty to

defend.”); Applestein, 377 So. 2d at 233 (“It has thus been uniformly held

that a determination that there is no duty to defend against a particular claim

carries with it the inevitable conclusion that there is none to pay an eventual

judgment which may be entered upon that claim.”).

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With these principles in mind, we turn to the text of the insurance policy.

B. The Plain Language of the Insurance Policy

“The scope and extent of insurance coverage is determined by the

language of the insurance policy. Thus, the policy’s text is paramount and

must be the starting point of our analysis.” Fojon v. Ascendant Comm. Ins.

Co., 393 So. 3d 806, 810 (Fla. 3d DCA 2024). See also Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012).

This is an objective pursuit, not subjective. Advisory Op. to Governor re

Implementation of Amend. 4, The Voting Restoration Amend., 288 So. 3d

1070, 1078 (Fla. 2020).

We construe those words according to their plain meaning and view

them in context of the policy as a whole. § 627.419(1), Fla. Stat. (2019)

(“Every insurance contract shall be construed according to the entirety of its

terms and conditions as set forth in the policy and as amplified, extended, or

modified by any application therefor or any rider or endorsement thereto.”);

Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003)

(“[W]hen analyzing an insurance contract, it is necessary to examine the

contract in its context and as a whole, and to avoid simply concentrating on

certain limited provisions to the exclusion of the totality of others.”); Scalia &

Garner, supra, at 167 (“Context is a primary determinant of meaning. A legal

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instrument typically contains many interrelated parts that make up the whole.

The entirety of the document thus provides the context for each of its parts.”).

“Every provision in a contract should be given meaning and effect and

apparent inconsistencies reconciled if possible.” Excelsior Ins. Co. v.

Pomona Park Bar & Package Store, 369 So. 2d 938, 941 (Fla. 1979). See

also Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000)

(“[C]ourts should read each policy as a whole, endeavoring to give every

provision its full meaning and operative effect.”).

The policy provides liability coverage for “bodily injury” or “property

damage” caused by an “occurrence.” But it does not provide liability

coverage for “actual, threatened or attempted” “physical abuse, physical

molestation, habitual neglect,” “sexual abuse, sexual assault, sexual battery,

sexual molestation,” or “licentious, amoral, immoral or similar behavior.”

The parties concentrate on the words “physical abuse.” Focusing on

the fact that the words are undefined, Catalina West maintains that the term

is ambiguous and must be construed against the insurer. It advocates for a

narrow, and somewhat novel, definition—limited to harm occurring in a

domestic, authority, or trust relationship only.

Yet a term is only ambiguous when it is of uncertain meaning, may be

fairly understood in more ways than one, and is susceptible of interpretation

10

in opposite ways. Friedman v. Virginia Metal Prods. Corp., 56 So. 2d 515,

517 (Fla. 1952); Barnett v. Destiny Owners Ass’n, Inc., 856 So. 2d 1090,

1092 (Fla. 1st DCA 2003). “A true ambiguity does not exist merely because

a contract can possibly be interpreted in more than one manner. Indeed,

fanciful, inconsistent, and absurd interpretations of plain language are

always possible.” Am. Med. Int’l, Inc. v. Scheller, 462 So. 2d 1, 7 (Fla. 4th

DCA 1984). Likewise, a term is not ambiguous simply because it is not

defined, or it is complex and requires analysis. See Garcia v. Fed. Ins. Co.,

969 So. 2d 288, 291 (Fla. 2007); State Farm Fire & Cas. Co. v. CTC Dev.

Corp., 720 So. 2d 1072, 1076 (Fla. 1998). Plus, ambiguity cannot be created

by adding context or words that are not within the policy. See U.S. Fire Ins.

Co. v. Morejon, 338 So. 2d 223, 225 (Fla. 3d DCA 1976) (“Florida courts

adhere to the principle that a court should not rewrite a contract of insurance

extending the coverage afforded beyond that plainly set forth in the insurance

contract.”).

Focusing on the plain meaning of the words before us, we turn to

dictionaries from the time the contract arose. “Dictionaries aid us in

establishing the publicly understood plain meaning of a word whose relevant

definition is contested, and we look to them when a contractual term is

undefined within a contract.” Parrish v. State Farm Fla. Ins. Co., 356 So. 3d

11

771, 776 (Fla. 2023). The word “physical” means “[o]f, relating to, or

involving someone’s body as opposed to mind” or “[o]f, relating to, or

involving rough or violent contact.” Black’s Law Dictionary 1386 (11th ed.

2019). See also Webster’s New World College Dictionary 1101 (5th ed.

2018) (defining as “of the body as opposed to the mind” or “of or marked by

aggressive or rough play, activity”). The noun “abuse” means “[a] departure

from legal or reasonable use; misuse,” or “[c]ruel or violent treatment of

someone; specif., physical or mental maltreatment, often resulting in mental,

emotional, sexual, or physical injury.” Black’s Law Dictionary 12 (11th ed.

2019). See also Webster’s New World College Dictionary 6 (5th ed. 2018)

(defining as “wrong, bad, or excessive use,” or “mistreatment, esp. by the

infliction of physical, sexual, or psychological harm; injury.”). “Abuse” is also

a verb. The verb is defined as “to damage (a thing),” [t]o depart from legal

or reasonable use in dealing with (a person or thing),” “[t]o injure (a person)

physically or mentally.” Black’s Law Dictionary 13 (11th ed. 2019). See also

Webster’s New World College Dictionary 6 (5th ed. 2018) (defining as “to

use wrongly; misuse,” “to hurt by treating badly; mistreat” or “to inflict

physical, sexual, or psychological harm upon.”).

Notably, neither dictionary defines “physical abuse” as a single or

compound term. This is important since other commonly identified types of

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abuse are defined—child abuse, elder abuse, domestic abuse, emotional

abuse, sexual abuse, and verbal abuse. Black’s Law Dictionary 12 (11th ed.

2019). In other words, there are no special definitions attributed to “physical

abuse.” And importantly, neither dictionary limits their definitions to familial,

trust, or authority relationships. Abuse is broader in context.

We find the words “physical abuse” are not ambiguous. The exclusion

precludes liability coverage for “bodily injury” “arising out of, related to or in

any other way connected to actual, threatened or attempted physical abuse.”

When the ordinary meaning of each word is considered in context of the

exclusion, there is no coverage where someone—such as the insured, their

employees, guests, or any other person on the insured’s premises—actually,

attempts, or threatens cruel and violent treatment to another person’s body

resulting in physical injury. An ambush and fatal shooting plainly fall within

that. Accord Miglino, 174 So. 3d at 481. The assailant’s cruel and violent

actions inflicted physical injury to Macko.

When viewing the policy as a whole, this interpretation of the Physical

and Sexual Abuse Exclusion is in harmony with the remainder of the policy.

See Scalia & Garner, supra, 180 (“The provisions of a text should be

interpreted in a way that renders them compatible, not contradictory.”). This

commercial general liability policy does not insure intentional, criminal acts

13

where injury is intended or expected. For instance, the insuring agreement

provides liability coverage for bodily injuries caused by an “occurrence.” See

Koikos v. Travelers Ins. Co., 849 So. 2d 263, 271 (Fla. 2003) (“The insured’s

alleged negligence is not the ‘occurrence’; the insured’s alleged negligence

is the basis upon which the insured is being sued by the injured party.

Focusing on the immediate cause-that is the act that causes the damage-

rather than the underlying tort-that is the insured’s negligence-is also

consistent with the interpretation of other forms of insurance policies.”);

Phillips v. Ostrer, 481 So. 2d 1241, 1247 (Fla. 3d DCA 1985) (“The act which

causes the damage constitutes the occurrence.”). “Occurrence” is defined

as an “accident.” “Accident” generally means unexpected or unintended.

Dimmitt Chevrolet, Inc. v. Se. Fid. Ins. Corp., 636 So. 2d 700, 704 (Fla.

1993). Thus, only unexpected or unintended acts—in other words, negligent

acts or omissions—fall within the insuring agreement. Fojon, 393 So. 3d at

810 (“An insuring agreement contains the grant of coverage. It generally

describes what is covered by the policy and under what circumstances. If the

elements set forth in the insuring agreement are not satisfied, the policy does

not provide insurance coverage.”).

Likewise, the policy excludes liability coverage for expected or

intended injuries and criminal acts. See Cabezas ex rel. Ferrer v. Fla. Farm

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Bureau Cas. Ins. Co., 830 So. 2d 156, 158 (Fla. 3d DCA 2002); Aetna Cas.

& Sur. Co., Inc. v. Miller, 550 So. 2d 29, 30 (Fla. 3d DCA 1989); State Auto

Mut. Ins. Co. v. Scroggins, 529 So. 2d 1194, 1195 (Fla. 5th DCA 1988);

Hartford Fire Ins. Co. v. Spreen, 343 So. 2d 649, 652 (Fla. 3d DCA 1977). It

similarly excludes act of terrorism, insurrection or rebellion, and theft.

At bottom, Catalina West’s proposed definition is simply not in harmony

with the remainder of the policy. 1 Indeed, limiting the exclusion to those in

domestic, trust, or authority relationships is not logical in this framework. It

asks too much from the text. Scalia & Garner, supra, 31 (“A fundamental

rule of textual interpretation is that neither a word nor a sentence may be

given a meaning that it cannot bear.”).

Furthermore, its proposed definition adds context and meaning that is

not within the text of the policy. It would require us to add words—trust,

domestic, familial, or authority relationship—to limit it in that manner. We do

not have the authority to rewrite the policy. Excelsior Ins. Co., 369 So. 2d at

942; Fojon, 393 So. 3d at 810–11 (“The policy must be enforced as written.

Courts are without power to rewrite insurance contracts or create insurance

1

The dissent’s focus on the policy not containing an assault and battery

exclusion is misguided for this very reason. It ignores that intentional acts,

such as this, already fall outside of the scope of coverage. An assault and

battery exclusion would have been superfluous.

15

coverage where none exists.”); Morejon, 338 So. 2d at 225 (“Florida courts

adhere to the principle that a court should not rewrite a contract of insurance

extending the coverage afforded beyond that plainly set forth in the insurance

contract.”); Pastori v. Com. Union Ins. Co., 473 So. 2d 40, 41 (Fla. 3d DCA

1985) (“[C]ourts have no power simply to create coverage out of the whole

cloth when none exists on the face of an insurance contract . . . .”). This

makes it an unreasonable interpretation. Allstate Life Ins. Co. v. Fox, 700

So. 2d 49, 50 (Fla. 5th DCA 1997) (“This interpretation should be discarded

because it is not a reasonable one.”).

Accordingly, we find that the words “physical abuse” are not

ambiguous. The allegations of the underlying complaint squarely fall within

their ordinary and common definitions—where someone actually, attempts

or threatens cruel and violent treatment to another person’s body resulting in

physical injury. First Community Insurance Company does not have a duty

to defend or indemnify. And so, the trial court correctly entered final

summary judgment.

Despite the dissent’s sweeping claims otherwise, numerous

jurisdictions have interpreted the exclusion in the manner that we have—by

applying the plain language of the policy. See, e.g., Metro. Prop. & Cas. Ins.

Co. v. McCarthy, 327 A.3d 1134, 1139 (Me. 2024) (applying plain language

16

of exclusion to preclude coverage for abuse); Rosenberg v. Hudson Ins. Co.,

638 F. Supp. 3d 510, 523 (W.D. Pa. 2022), aff'd, No. 22-3275, 2025 WL

457306 (3d Cir. Feb. 11, 2025) (holding shooting murder constituted abuse

within the plain meaning of the policy); Hecht v. Great N. Ins. Co., 769 Fed.

App’x 562, 568 (10th Cir. 2019) (finding “Hecht falsely imprisoned Warfel at

an isolated cabin, where he lost his temper and threatened to kill her mother,

cut off her finger, and knock her teeth out” constituted abuse as set forth by

the exclusion); Safeco Ins. Co. of Am. v. Laubinger, No. 4:18CV1237 HEA,

2019 WL 1773146, at *5 (E.D. Mo. Apr. 23, 2019) (applying plain language

to find abuse where perpetrator restrained, beat, tased, and threatened to

kill victim); Gen. Ins. Co. of Am. v. Okeke, 189 A.3d 158, 169 (Conn. App.

Ct. 2018) (“The violent stabbing and beating of Craft cannot plausibly be

considered anything other than ‘physical abuse.’”); Universal N. Am. Ins. Co.

v. Colosi, 322 F. Supp. 3d 1071, 1077 (D. Nev. 2018) (holding act of burning

another’s body with lighter fell within plain meaning of physical abuse); U.S.

Underwriters Ins. Co. v. Hands of Our Future, LLC, C.A. No. N14C-10-175

CEB, 2016 WL 4502003, at *3 (Del. Super. Ct. Aug. 19, 2016) (“Reading all

contractual terms to have meaning, where sexual mistreatment is covered

by the term ‘molestation,’ the only reasonable meaning of the term ‘abuse’ in

the context of the Molestation or Abuse Exclusion must be one that includes

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physically or verbally harmful conduct.”); Miglino, 174 So. 3d at 481 (“The

plain meaning of ‘physical abuse’ encompasses the intentional shooting of

Miglino by the sister.”); Maxum Indem. Co. v. I.T.A. Sec. Servs., Inc., No.

14cv-21437, 2014 WL 12862522, at *4 (S.D. Fla. July 24, 2014), report and

recommendation adopted, No. 14-21437-CIV, 2014 WL 12862523 (S.D. Fla.

Aug. 18, 2014) (applying Florida law) (holding employee placing a person in

chokehold fell within plain meaning of Physical and Sexual Abuse exclusion);

Farmers Auto. Ins. Ass'n v. Long, No. 1:13-cv-01236, 2014 WL 1665001, at

*6 (E.D. Cal. Apr. 23, 2014), report and recommendation adopted, No. 1:13-

cv-01236, 2014 WL 12773793 (E.D. Cal. June 5, 2014) (holding fraternity

hazing constituted abuse and fell within plain language of exclusion); Acadia

Ins. Co. v. Hinds Cnty. Sch. Dist., No. 3:12-CV-188-CWR-LRA, 2013 WL

12091099, at *4 (S.D. Miss. Mar. 29, 2013) (allegation that teacher sprayed

child with Aerosol can and hit him in face with ball constituted abuse within

exclusion); Nat’l Mut. Fire Ins. Co. v. Frye, No. 1:11cv1135, 2013 WL

6234612, at *6 (M.D.N.C. Dec. 2, 2013) (throwing toddler against wooden

chair constituted physical abuse within plain meaning of exclusion);

Scottsdale Ins. Co. v. Children’s Home Soc’y of N.C., Inc., No. 5:12-CV-81-

FL, 2013 WL 3354506, at *7 (E.D.N.C. July 3, 2013), aff'd, 581 Fed. App’x

290 (4th Cir. 2014) (holding allegations of false imprisonment constituted

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physical abuse within the plain meaning of term); Am. Empire Surplus Lines

Ins. Co. v. Chabad House of N. Dade, Inc., 450 Fed. App’x 792, 793 (11th

Cir. 2011) (applying Florida law) (affirming lower court’s finding that acts of

tormenting, such as taping mouth shut, locking in bathroom, telling person

his mother has breast cancer, and threatening with violence and death,

constituted physical abuse); Merrimack Mut. Fire Ins. Co. v. Ramsey, 982

A.2d 195, 198 (Conn. App. Ct. 2009) (“The stabbing of the defendant clearly

constituted physical abuse within the language of the policy. As such, the

injuries suffered by the defendant are not covered, and the plaintiff has no

duty to defend or to indemnify Jeffrey Ramsey.”); Sarah G. v. Maine Bonding

& Cas. Co., 866 A.2d 835, 839 (Me. 2005) (paying minors to pose for illicit

photographs constituted abuse); S.C. Farm Bureau Mut. Ins. Co. v. Oates,

588 S.E.2d 643, 646 (S.C. Ct. App. 2003) (“When the allegations supporting

liability in the underlying negligence action are viewed under any of the

above-stated definitions of abuse, Jonathan’s injuries arose out of abuse as

that term is used in its plain, ordinary, and popular sense.”); Auto-Owners

Ins. Co. v. Am. Cent. Ins. Co., 739 So. 2d 1078, 1081 (Ala. 1999) (applying

plain meaning of physical and mental abuse to preclude coverage for acts of

hazing); Am. Fam. Mut. Ins. Co. v. Chiczewski, 700 N.E.2d 777, 778 (Ill. App.

Ct. 1998) (applying plain language of physical abuse to preclude allegations

19

of harm to a minor after ingesting illegal drugs); New World Frontier, Inc. v.

Mount Vernon Fire Ins. Co., 253 A.D.2d 455, 455 (N.Y.S. 2d 1998) (holding

where four-year was assaulted, battered, and sexually molested by a five

year old fell within plain meaning of exclusion); CNA Int’l Reinsurance Co. v.

CPB Enters., Inc., 982 F. Supp. 831, 834 (S.D. Ala. 1997) (finding assault

and battery fell within plain meaning of abuse); McAuliffe v. N. Ins. Co. of

N.Y., 69 F.3d 277, 279 (8th Cir. 1995) (“Lahr’s manipulative and sexually

opportunistic conduct was abusive within the exclusion’s plain meaning.”);

Mount Vernon Fire Ins. Co. v. Hicks, 871 F. Supp. 947, 952 (E.D. Mich. 1994)

(holding assault and death fell within plain meaning of abuse).

C. The Doctrine of Reasonable Expectations

Catalina West and the dissent both frame their analysis from the

insured’s perspective—what would a reasonable insured have reasonably

believed was covered under the policy. This is called the doctrine of

reasonable expectations.

“Under this doctrine, the insured’s expectations as to the scope of

coverage is upheld provided that such expectations are objectively

reasonable.” Deni Assocs. of Florida, Inc. v. State Farm Fire & Cas. Ins. Co.,

711 So. 2d 1135, 1140 (Fla. 1998). The insured is entitled to all the coverage

20

he or she may have reasonably expected—without due regard to the actual

language provided by that policy or the risk underwritten.

But the Florida Supreme Court has repeatedly rejected this doctrine

in the interpretation of insurance policies. See QBE Ins. Corp. v. Chalfonte

Condo. Apartment Ass’n, Inc., 94 So. 3d 541, 549 (Fla. 2012); Deni Assocs.

of Florida, Inc., 711 So. 2d at 1140. See also Citizens Prop. Ins. Corp. v.

Manor House, LLC, 313 So. 3d 579, 583 (Fla. 2021). Instead, Florida courts

must focus on the plain language of the insurance policy and give effect to

those express terms. See Lenhart v. Federated Nat’l Ins. Co., 950 So. 2d

454, 461 (Fla. 4th DCA 2007) (explaining that a reasonable belief contrary

to the plain meaning of insurance policy, or even to unclear text capable of

being fairly read to provide coverage, is irrelevant to interpretation of the

policy); State Farm Fire & Cas. Co. v. Castillo, 829 So. 2d 242, 247 (Fla. 3d

DCA 2002) (explaining that “it is the policy’s terms which define coverage,

not the insured’s reasonable expectations”). The parties’ unexpressed intent

or desires have no effect. We strongly reject any attempts to revive this

doctrine or fundamentally change how Florida courts interpret insurance

policies.

The dissent relies upon cases that readily employ this doctrine. See,

e.g., Dorchester Mut. Ins. Co. v. Krusell, 150 N.E.3d 731, 738 (Mass. 2020)

21

(“When in doubt as to the proper meaning of a term in an insurance policy,

we consider what an objectively reasonable insured, reading the relevant

policy language, would expect to be covered.”) (internal citations omitted);

Dorchester Mut. Ins. Co. v. Miville, 204 N.E.3d 382, 391 (Mass. 2023) (“We

therefore clarify that, for conduct to constitute ‘physical abuse’ as a

reasonable insured would understand the term when reading the language

of the abuse and molestation exclusion and the policy as a whole, the

conduct must involve an imbalance or misuse of power in addition to being

physically harmful.”); Powers v. Certain Underwriters at Lloyd’s London,

2024 WL 3971137, at *4-5 (D. Nev. Aug. 26, 2024) (“The question of whether

an insurance policy is ambiguous turns on whether it creates reasonable

expectations of coverage as drafted. . . . [W]e must interpret the provision to

effectuate the insured’s reasonable expectations[.]”); Lexington Ins. Co. v.

New Mexico Ass’n of Cntys., Civ. No. 07-464 RB/LAM, 2010 WL 11597831,

at *4 (D.N.M. June 28, 2010) (“[W]e must now determine whether the

exclusionary clause in the case at hand is ambiguous or irreconcilably

conflicts with other parts of the agreement contrary to New Mexico’s strong

policy of promoting the reasonable expectations of the insured.”). 2 Florida

2

The dissent further relies on Riley v. Maison Orleans II, Inc., 829 So. 2d

479 (La. Ct. App. 2002), Kemper Independence Ins. Co. v. Tarzia, No. 3:11-

cv-00318, 2012 WL 6568776 (U.S. Dist. Ct. D. Conn. June 19, 2012), and

22

courts should reject these cases. They have no place in our textualist

analysis.

D. The Policy is Not Illusory

Catalina West and the dissent both frame the policy as illusory. They

assert that the exclusion acts to exclude all conduct that causes harm. Not

so. “A policy is illusory only if there is an internal contradiction that

completely negates the coverage it expresses to provide.” Warwick Corp. v.

Turetsky, 227 So. 3d 621, 625 (Fla. 4th DCA 2017). “On the other hand,

where a limitation on coverage does not ‘completely swallow’ the insuring

provision, the policy is not illusory.” Id. (citation modified).

As set forth above, the Physical and Sexual Abuse Exclusion is in

harmony with the remainder of the policy. The insuring agreement covers

“occurrences”—incidents that are “accidents.” It simply does not cover

intentional conduct. See, e.g., Prasad v. Allstate Ins. Co., 644 So. 2d 992,

992 (Fla. 1994). The policy plainly provides coverage for bodily injury that

Quincy Mut. Fire Ins. Co. v. Kim, No. 1483CV00847, 2015 WL 13574071

(Mass. Super. 2015). Louisiana, Connecticut, and Massachusetts likewise

follow the doctrine of reasonable expectations. See Louisiana Ins. Guar.

Ass'n v. Interstate Fire & Cas. Co., 630 So. 2d 759, 764 (La. 1994) (“In

insurance parlance, this is labelled the reasonable expectations doctrine.”);

R.T. Vanderbilt Co., Inc. v. Hartford Accident & Indem. Co., 216 A.3d 629,

641 (Conn. 2019) (“[T]he determinative question is the intent of the parties,

that is, what coverage the [insured] expected to receive . . . .”); Krusell, 150

N.E.3d at 738.

23

arises from negligent conduct that does not fall within this exclusion—where

someone does not actually threaten or attempt cruel and violent treatment to

another person’s body to cause physical injury. This could include numerous

incidents, such as someone slipping and falling on the insured’s property, a

car accident occurring because the shrubs were too high at the entrance, or

an unattended child drowning in the community pool. The policy is not

illusory in any manner.

IV.

There is no basis in law or fact for this Court to rewrite the insurance

contract in the manner advocated by Catalina West. The policy is

unambiguous. It excludes “physical abuse,” which is where someone

actually, attempts, or threatens cruel and violent treatment to another

person’s body resulting in physical injury. An ambush and shooting squarely

qualify. Thus, First Community Insurance Company does not have a duty to

defend or indemnify. Summary judgment was proper. For these reasons,

we affirm.

Affirmed.

BOKOR, J., concurs.

24

FERNANDEZ, J., dissenting.

I dissent from the majority opinion because I conclude that the term

“physical abuse,” as it appears in the insurance policy in question, is

ambiguous at best. Thus, I believe the trial court erred in adopting Miglino v.

Universal Property and Casualty Insurance Company, 174 So. 3d 479 (Fla.

4th DCA 2015), which is factually distinguishable from the case before us. I

would hold that a “physical abuse” exclusion that appears in a “Physical and

Sexual Abuse” exclusion clause, such as the one in this case, does not

include a single act of violence such as the ambush and shooting by an

unknown assailant who has no relationship to the victim. Accordingly, I

respectfully dissent.

Catalina West operates, manages, and maintains the Catalina West

housing community in Cutler Bay, Florida. First Community issued a

business owners’ policy of insurance to Catalina West for the period from

May 28, 2019 through May 28, 2020. The policy insured Catalina West for

bodily injury claims and included liability coverage of $2,000,000.00 per

occurrence with a $4,000,000.00 aggregate. Catalina West purchased the

policy to protect itself from all liability from the management, operation,

maintenance, and security of the homeowners’ association (“HOA”) property,

including bodily injury claims.

25

On November 5, 2019, Daniel Macko was at his home within the

Catalina West community when he was shot and killed by unknown

assailants. His estate sued Catalina West, Old Cutler Lakes by the Bay

Community Association, Inc., and South Florida Security Group, Inc.

(“SFSG”) in Miami-Dade Circuit Court for negligent maintenance and

security. Macko’s estate alleged that he was murdered by unknown

assailants and that Catalina West was negligent in failing to warn, protect,

guard, and secure the safety of the residents from criminal acts.

The insurer, First Community, originally agreed in November 2020 to

defend Catalina West in the estate’s wrongful death action under a

reservation of rights. In January 2022, First Community filed the underlying

declaratory judgment action to determine its responsibilities under the

insurance policy.

In July 2022, First Community filed an amended complaint for

declaratory judgment and demand for a jury trial. First Community alleged

that it had no duty to defend or indemnify Catalina West because the policy

contained a “Physical and Sexual Abuse Exclusion.” Regarding this

exclusion, the policy stated:

PHYSICAL AND SEXUAL ABUSE EXCLUSION

...

26

This insurance does not apply to “bodily injury”, “property

damage”, “personal and advertising injury”, medical payments or

any other damages directly or indirectly because of, arising out

of, related to or in any other way connected to actual, threatened

or attempted:

a. physical abuse, physical molestation, habitual

neglect; or

b. sexual abuse, sexual assault, sexual battery,

sexual molestation; or

c. licentious, amoral, immoral or similar behavior;

that was committed or alleged to have been committed by the

insured, their “employees”, any person acting on behalf of the

insured, customers, patrons, guests or any other person on the

insured’s premises.

This exclusion applies to all causes of action arising out of any

of the acts enumerated above, including but not limited to:

a. allegations of negligent hiring, placement or

training of employees;

b. improper or non-existent supervision of

employees, patrons or guests;

c. negligence in failing to protect customers,

patrons or guests.

d. error or omissions relating to any of the above

mentioned acts.

In addition, this exclusion applies regardless of whether the acts

enumerated above were committed intentionally, negligently,

inadvertently, or with the belief, erroneous or otherwise, that the

other party consented and had the legal and mental capacity to

consent thereto.

This exclusion applies regardless of whether or not the insured,

their “employees”, any person acting on behalf of insured,

customers, patrons or guests, are actually charged with or

convicted of a crime.

27

First Community moved for final summary judgment, contending that

Catalina West was not entitled to its defense or indemnity under the policy’s

exclusion of claims “arising from physical and sexual assault.” SFSG and

Old Cuter Lakes by the Bay each filed their Response in Opposition to First

Community’s motion for final summary judgment, contending that a genuine

issue of material fact existed regarding whether the exclusion applied and

that to the extent there was an ambiguity, it must be construed against First

Community. Thereafter, Catalina West filed its Response in Opposition to

First Community’s motion for final summary judgment, adopting and

incorporating the arguments made by SFSG and Old Cutler Lakes by the

Bay Community Association.

The trial court held a hearing on First Community’s motion. First

Community argued that it read the policy exclusion to include “simple

assaults and batteries and shooting claims,” relying on Miglino. Catalina

West contended, in part, that the plain meaning of the physical abuse

exclusion did not include a single act of violence by a stranger, still unknown,

to ambush and murder the deceased, Macko. Catalina West distinguished

Miglino because that case involved family members who knew each other,

there was an ongoing dispute, it involved a homeowner’s insurance policy

28

as opposed to a commercial policy, and it involved a shooting that occurred

away from the insured’s home.

The trial court granted First Community’s summary judgment motion.

The trial court applied the Miglino definition of “physical abuse” to be any

act of any kind constituting “physical . . . maltreatment,” “physical injury,”

and “hurt or injur[y] by maltreatment” to conclude that Macko’s ambush and

murder by the unknown assailants fell within the definition of “physical

abuse.” Miglino, 174 So. 3d at 481. The trial court stated in its Final

Judgment that because the wrongful death suit alleged “bodily injury” from

an ambush resulting in death, it thus “relates to or pertains to the body” and

thus asserts “hurt or injury by maltreatment” under the broad reading

contemplated in Miglino. Thus, the trial court found that First Community

had no obligation to defend or indemnify Catalina West in the wrongful death

action.

On appeal, Catalina West asserts that the trial court erred in entering

summary declaratory judgment for First Community because a reasonable

insured, as courts across the country have found, would reasonably read

the language of the physical and sexual abuse exclusion at issue to require

something more. This something more includes harm done while exploiting

a relationship with the victim, and thus the exclusion is inapplicable to an

29

assault by an unknown assailant having no relationship or association to the

victim. I agree with this position and thus would hold that the trial court erred

in following the Fourth District Court of Appeal’s opinion in Miglino.

An appellate court reviews insurance policy construction under a de

novo standard of review. Gov’t Employees Ins. Co. v. Macedo, 228 So. 3d

1111, 1113 (Fla. 2017); Volusia Cnty., v. Aberdeen at Ormond Beach, L.P.,

760 So. 2d 126, 130 (Fla. 2000). The Court must draw every possible

inference in favor of the insured. Gonzalez v. B&B Cash Grocery Stores, Inc.,

692 So. 2d 297, 299 (Fla. 4th DCA 1997).

In Florida, an insurer has an obligation to defend when the allegations

of the underlying complaint bring the insured within the policy provisions of

coverage. Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5, 10-11 (Fla.

2005). Thus, when an action “is filed against an insured, there generally is

no need for a declaratory action in respect to the insurer’s obligation to

defend.” Id. at 10. “Any doubts regarding the duty to defend must be resolved

in favor of the insured” to find coverage. Jones v. Florida Ins. Guar. Ass’n,

Inc., 908 So. 2d 435, 443 (Fla. 2005). “If the complaint alleges facts that are

partially within and partially outside the policy, the insurer is obligated to

defend the entire suit.” Colony Ins. Co. v. G & E Tires & Serv., Inc., 777 So.

30

2d 1034, 1037 (Fla. 1st DCA 2000) (quoting Grissom v. Commercial Union

Ins. Co, 610 So. 2d 1299, 1306-07 (Fla. 1st DCA 1992).

Florida law requires that insurance policies are construed liberally and

in favor of coverage for the insureds and must be construed strictly against

the insurance company. Berkshire Life Ins. Co. v. Adelberg, 698 So. 2d 828,

830 (Fla. 1997). Further, whereas coverage clauses are afforded the

broadest interpretation so as to effectuate the greatest extent of coverage

possible, exclusionary clauses must be strictly and narrowly construed.

Taurus Holdings, Inc. v. U.S. Fidelity & Guar. Co., 913 So. 2d 528, 533 (Fla.

2005). Ambiguous exclusionary clauses are construed even more strictly

against the insurer than ambiguous coverage clauses. Auto-Owners Ins. Co.

v. Anderson, 756 So. 2d 29, 34 (Fla. 2000).

“[W]here policy language is subject to differing interpretations, the term

should be construed liberally in favor of the insured and strictly against the

insurer.” State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So. 2d 1072,

1076 (Fla. 1998). Moreover, “exclusionary clauses in liability insurance

policies are always strictly construed.” Westmoreland v. Lumbermens Mut.

Cas. Co., 704 So. 2d 176, 179 (Fla. 4th DCA 1997). “In construing exclusions

in an insurance contract, the entire contract must be construed as a whole,

from the perspective of an ordinary person.” Mactown, Inc. v. Continental

31

Ins. Co., 716 So. 2d 289, 291-92 (Fla. 3d DCA 1998) (internal citations

omitted). “[I]f an exclusionary clause . . . has not been stated with sufficient

clarity, then the rule of strict construction requires a construction in favor of

the insured.” Westmoreland, 704 So. 2d at 180.

Lastly, “[a]n insured’s duty to indemnify is ‘determined by analyzing the

policy coverage in light of the actual facts in the underlying case.’” Alicea

Enters., Inc. v. Nationwide Ins. Co. of Am., Inc., 252 So. 3d 799, 802 (Fla. 2d

DCA 2018) (citation omitted). “The duty to indemnify is thus often dependent

upon further factual development through discovery or at trial.” Khatib v. Old

Dominion Ins. Co., 153 So. 3d 943, 947-48 (Fla. 1st DCA 2014) (holding that

the decision of the trial court exonerating an insurer from its duty to defend

and indemnify, before the facts were adduced, was premature and thus was

reversible error).

Once the insured establishes a loss apparent within the terms of an

insurance policy, the burden shifts to the insurer to prove that the claim is

excluded from coverage under an applicable exception or exclusion.

Deshazior v. Safepoint Ins. Co., 305 So. 3d 752, 754-55 (Fla. 3d DCA 2020).

An insurer bears the heavy burden of proving its construction is the only

reasonable construction of the policy. See Nixon, 290 So. 2d at 29-30; Fayad

v. Clarendon Nat’l Ins. Co., 899 So. 2d 1082, 1086 (Fla. 2005). Even if the

32

insurer’s interpretation of the policy is arguably “reasonable,” if there are two

such reasonable interpretations, the policyholder’s interpretation in favor of

coverage must be adopted. Fayad; see also Taurus Holdings, Inc., 913 So.

2d 528.

In the matter before this Court, the issue concerns whether, under this

business owner’s liability insurance policy, the term “physical abuse” in the

“Physical and Sexual Abuse Exclusion” portion of the policy excludes

coverage for Catalina West’s negligence. First Community submitted the

Miglino case to the trial court, the only Florida state court case addressing

this issue, and the trial court agreed with the Miglino court’s definition of

“physical abuse,” that it includes any form of physical harm.

In Miglino, the insured loaned a gun to his sister. Miglino, 174 So. 3d

at 480. The insured’s sister then shot her son-in-law with the gun. Id. The

son-in-law was in the midst of divorce proceedings with the insured’s sister’s

daughter. Id. The sister was not on the insured premises when she shot her

son-in-law. Id.

Thereafter, the son-in-law sued the insured and the insured’s sister. Id.

The son-in-law claimed that the sister intentionally shot him and alleged a

negligent entrustment claim against the insured. Id. After initially defending

the insured in the son-in-law’s action, the insurer then filed a declaratory

33

action seeking a declaration that it had no duty to defend or indemnify the

insured under the policy’s abuse and molestation exclusion, which

“exclude[d] payments for damages ‘[a]rising out of sexual molestation,

corporal punishment or physical or mental abuse.’” Id. The trial court granted

summary judgment for the insurer. Id.

The son-in-law appealed and contended that physical and mental

abuse meant “to torture or actions meant to humiliate or demean.” Id. at 481.

He argued that the shooting did not fit within this definition, and thus, the

abuse and molestation exclusion was inapplicable. Id.

The Fourth District Court of Appeal did not agree with the son-in-law’s

definition of “physical abuse.” Id. The court found that the plain meaning of

the words “physical abuse” included an instance such as the shooting that

took place. Id. The appellate court focused on the individual word “physical.”

The Miglino court stated:

Black’s Law Dictionary defines “physical,” in pertinent part, as

“[r]elating to or pertaining to the body, as distinguished from the

mind or soul or the emotions.” BLACK’S LAW DICTIONARY 1147 (6th

ed. 1990). In pertinent part, Black’s defines “abuse” as “[p]hysical

or mental maltreatment, often resulting in mental, emotional,

sexual, or physical injury,” and “[t]o injure (a person) physically

or mentally.” BLACK’S LAW DICTIONARY 10 (8th ed. 2004).

Similarly, a non-legal dictionary defines abuse as “[t]o hurt or

injure by maltreatment.” THE AMERICAN HERITAGE DESK

DICTIONARY 5 (1981) (emphasis added).

34

The plain meaning of “physical abuse” encompasses the

intentional shooting of Miglino by the sister. Such an act clearly

constitutes “physical…maltreatment,” “physical injury,” and “hurt

or injur[y] by maltreatment” as described in the definitions used

in deciding this issue.

Id. The court did not interpret the compound word phrase, “physical abuse.”

Importantly, the Miglino court also limited the holding to the specific facts of

that case by stating, “We leave for another, day, however, the question of

which other types of occurrences may reasonably be excluded within the

framework of the policy exclusion.” Id. at 482.

I find the facts in Miglino are distinguishable from the facts in the case

before us, thus it is inapplicable. First, the insurance policy in Miglino was a

homeowner’s policy. The primary reason of a homeowner’s policy is to insure

a home against damage from storm, fire, and theft. Most consumers are not

aware that their homeowner’s policy provides liability coverage. Catalina

West’s case, however, involves a business owner’s policy. The primary

reason for the First Community liability policy was to provide lability

insurance coverage for events or occurrences arising from the operation,

management, maintenance, and security of the homeowner community.

Catalina West incurred the extra expense of obtaining Umbrella/Excess

liability coverage of $2,000,000.00 per incident and $4,000,000.00

aggregate, as stated in the affidavit of Tara Walker, who was the licensed

35

community association manager for Catalina West. Protection from money

damages liability to homeowners and others was of great importance to

Catalina West in purchasing the policy from First Community. In her affidavit,

Walker stated that had First Community informed Catalina West that the

insurance policy did not provide full liability coverage regarding the

management, operation, maintenance, and security of the homeowners’

association property, Catalina would have sought insurance coverage from

another insurer.

I agree with Catalina West’s position that a reasonable insured, such

as in Miglino, would not expect their homeowner’s policy to cover them for a

shooting where the insured lent his gun to the shooter, and the shooting

occurred away from the insured’s home. 1 In Catalina West’s case, the

insured was attacked on the premises that was covered by the insurance

policy. This is exactly the type of occurrence for which Catalina West sought

insurance. The subject policy provides for an occurrence, which it defines as

an accident. The underlying lawsuit does not describe an accident but rather

a deliberate occurrence by a third-party other than the insured. Thus, I agree

1

“[T]he proper inquiry is not whether a legal scholar can, with learned

deliberation, comprehend the meaning of an insurance policy provision, but

instead, whether it is understandable to a layperson.” Hrynkiw v. Allstate

Floridian Ins. Co., 844 So. 2d 739, 742 (Fla. 5th DCA 2003).

36

with Catalina West that this Court is not bound by the Miglino court’s

interpretation of “physical abuse” considering the distinguishable facts

between Miglino and the case before us. See State v. Hayes, 333 So. 2d 51,

53 (Fla. 4th DCA 1976) (“[A]s between District Courts of Appeal, a sister

district’s opinion is merely persuasive.”). 2, 3

Courts construe insurance contracts according to their plain language.

Fayad, 899 So. 2d at 1086. Insurance policies are treated like contracts, and

ordinary contract principles apply to its interpretation and construction. Mid-

Continent Cas. Co. v. Royal Crane, LLC, 169 So. 3d 174, 182 (Fla. 4th DCA

2015). Because the insurer writes the insurance policy, the insurer is bound

by the policy’s language, and the policy “is to be construed liberally in favor

of the insured and strictly against the insurer.” Adleberg, 698 So. 2d at 830.

The insured must first establish that a loss occurred and is within the policy’s

terms, then the burden is on “the insurer to prove that one of the policy

exclusions bars coverage.” Sec. First Ins. Co. v. Czelusniak, 305 So. 3d 717,

718 (Fla. 3d DCA 2020). In addition, if there are two competing

2

First Community conceded in its Initial Brief that Miglino is not binding on

this Court.

3

Miglino was decided in August 2015, almost ten years ago, and since then,

it has not been cited by any Florida state appellate court to support the

Miglino court’s definition of “physical abuse.”

37

interpretations that are reasonable, the interpretation favoring coverage must

be the one adopted. Fayad, 899 So. 2d at 1086.

With respect to undefined terms in an insurance policy, “it should be

given its plain and ordinary meaning, and courts may look to legal and non-

legal dictionary definitions to determine such a meaning.” Macedo, 228 So.

3d at 1113. “Terms used in a policy should be read in light of the skill and

experience of ordinary people.” Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc.,

874 So. 2d 26, 29 (Fla. 2d DCA 2004); see also Adelberg, 698 So. 2d at 830

(“[Terms are given] the meaning that an average buyer of an insurance policy

would give to the term.”). In addition, Florida courts have held that when

construing insurance policies, “courts should read each policy as a whole,

endeavoring to give every provision its full meaning and operative effect.”

Anderson, 756 So. 2d at 34 . Furthermore, insurance companies that fail to

define a term in a policy cannot take the position that there should be a

narrow, restrictive interpretation of the coverage provided in the policy. See

CTC Dev. Corp., 720 So. 2d at 1076; State Comprehensive Health Ass’n v.

Carmichael, 706 So. 2d 319, 320 (Fla. 4th DCA 1997).

The business owners’ insurance policy at issue here provides for

“business liability” coverage for a claim or suit “that the insured becomes

legally obligated to pay as damages because of ‘bodily injury,’” and includes

38

death resulting from “bodily injury.” Policy coverage is excluded for a variety

of reasons, including “Physical and Sexual Abuse Exclusions,” which

excludes “bodily injury” “because of, arising out of, related to or in any other

way connected to” “physical abuse,” “physical molestation,” “sexual abuse,”

“sexual assault,” “sexual battery,” intentional or not. However, Macko’s death

resulted from “bodily injury” committed by an unknown assailant. Catalina

West’s position is that this is not the same as the types of physical or sexual

abuse of a family member or an acquaintance as proposed in Miglino.

Consequently, it contends the policy’s “physical abuse” term is ambiguous

and should have been interpreted in Catalina West’s favor.

The majority concedes that a term is only ambiguous when it is of

uncertain meaning, may be fairly understood in more ways than one, and is

susceptible of interpretation in opposite ways. Clearly, one of the meanings

of the word “physical” is “of or relating to the body.” Physical, MERRIAM-

WEBSTER (updated May 25, 2025), https://www.merriam-

webster.com/dictionary/physical; see also Miglino, 174 So. 3d at 481

(referring to BLACK’S LAW DICTIONARY (6th ed. 1990) for definition of

“physical”: “[r]elating or pertaining to the body, as distinguished from the mind

or soul or the emotions.”). Thus, there is no ambiguity in that term. However,

39

it appears that cases from different jurisdictions support the position that the

term “abuse” has more than one meaning, and thus, is ambiguous.

For example, the Miglino Court interpreted the term “abuse” to

encompass any form of physically harmful treatment, no matter what its

origin or how it came about. Miglino, 174 So. 3d at 481. On the other hand,

the Supreme Judicial Court of Massachusetts in Dorchester Mutual

Insurance Company. v. Krusell, 150 N.E.3d 731, 738 (Mass. 2020), cited by

Catalina West, provided a different interpretation of the term “abuse” when it

stated “that the term ‘abuse’ contemplates conduct that is more

circumscribed than simply any form of physically harmful treatment, such

that ‘abuse’ implies a qualitative aspect to the treatment beyond the fact that

it causes harm.” 4 The Krusell court then cited to Black’s Law Dictionary 12

(11th ed. 2019), in finding that the term “abuse” meant: “[c]ruel or violent

treatment of someone; [specifically] physical or mental maltreatment, often

resulting in mental, emotional, sexual, or physical injury.” (Emphasis

4

Massachusetts and Florida follow similar insurance policy interpretation

principles as follows: both jurisdictions construe the words of the policy

according to their plain language in their usual ordinary sense; both hold that

a term is ambiguous when it is susceptible to more than one interpretation;

both interpret ambiguities against an insurer and in favor of the insured; both

hold that exclusionary provisions are construed strictly against the insurer;

both consider dictionary definitions in determining meaning; both read terms

and phrases in the context of the exclusion and the policy as a whole; and

both use the doctrine of noscitur a sociis. See Krusell, supra.

40

omitted). It appears that the Krusell court’s interpretation of “physical abuse”

is becoming the majority rule among jurisdictions. Id. at 438. See, e.g.,

Powers v. Certain Underwriters at Lloyd’s London, 2024 WL 3971137 (D.

Nev. Aug. 26, 2024). As the Court in Krusell stated, “physical abuse” is

interpreted by numerous courts to be a “subset of physically harmful

treatment.” Krusell, 150 N.E.3d at 744. See, e.g., Riley v. Maison Orleans II,

Inc., 829 So. 2d 479, 491 (La. Ct. App. 2002) (“Physical abuse, as opposed

to simple assault, is generally the act of a person in control, dominance, or

authority who misuses his position to harm or mistreat a person over whom

he exercises such control.”); Lexington Ins. Co. v. New Mexico Ass’n of

Cnty., 2010 WL 11597831, No. 07-464 RB/LAM (D.N.M. June 28, 2010)

(rejecting the definition of “abuse” that included all forms of mistreatment);

Quincy Mut. Fire Ins. Co. v. Kim, 2015 WL 13574071, *2, No. 1483CV00847

(Mass. Super Ct. July 28, 2015) (denying summary judgment to an insurer

where the insured, who was drunk, punched a stranger at a party who had

grabbed the insured’s arm outside the premises where the party took place;

the court stated the insurer’s “broad definition renders the ‘physical abuse’

exclusion meaningless because it invites all harmful conduct to fit into the

exclusion’s definition”)

41

The difference in interpretation of the term “abuse” by the courts

demonstrates that the term is susceptible to more than one meaning; thus, it

is ambiguous. Macedo, 228 So. 3d at 1113. The exclusion is susceptible to

multiple interpretations, which either provides coverage, as Catalina West

contends, or limits coverage, as First Community contends, which creates a

genuine dispute of material fact. Accordingly, I believe summary judgment in

First Community’s favor was erroneous. Even if both interpretations of the

term “abuse” are reasonable, the interpretation that favors coverage for the

insured must be the interpretation adopted, as previously discussed. Fayad,

899 So. 2d at 1086.

In my opinion, as a reasonable insured, Catalina West would not

construe “physical abuse” to exclude coverage. This makes sense because

the phrase “physical abuse,” when read within the context of the “Physical

and Sexual Abuse Exclusion” and the policy as a whole, leads to the

conclusion that the trial court’s interpretation of “physical abuse” to include

all conduct that causes harm would mean the policy was illusory. This is

prohibited by Florida law. Meister v. Utica Mut. Ins. Co., 573 So. 2d 128 (Fla.

4th DCA 1991) (rejecting insurer’s interpretation because it would render

coverage illusory). This is because the trial court’s interpretation of the

shooting by the unknown assailant as being encompassed by “physical

42

maltreatment,” “physical injury,” and “hurt or injury by maltreatment” means

any treatment that harms a person physically is excluded, even such physical

harm that results in “bodily injury” coverage, which First Community

contracted to provide to Catalina West. When a policy exclusion has

“completely swallowed up the insuring provision,” the “grossest form of

ambiguity” is created. Purelli v. State Farm Fire & Cas. Co., 698 So. 2d 618,

620 (Fla. 2d DCA 1997) (citation omitted). Catalina West correctly posits that

in a case such as the one before us, where an insurance policy is purchased

for this very coverage for “bodily injury,” the trial court’s construction and

misapplication of Miglino would undermine the fundamental purpose of this

insurance policy and almost all businessowners’ liability insurance policies.

Moreover, the Supreme Judicial Court of Massachusetts in Krusell

analyzed how the trial court’s construction of the phrase is contrary to the

history of the adoption of abuse and molestation exclusions. Krusell, 150

N.E.3d at 741. The Krusell court noted that these types of exclusions, such

as the one in the case before us, are not to be read broadly. Id. The court

noted:

An abuse and molestation exclusion originally was added to

liability insurance policies to “reinforce” the intentional acts

exclusion. See, e.g., 2 New Appleman Law of Liability Insurance

§ 13.06[12] (2019), citing Fire, Casualty, & Surety Bulletins, at

Hpe-7. Broadly speaking, the exclusion shields insurers in two

situations where the intentional acts exclusion proves

43

inadequate. The first is where a victim of abuse seeks to recover

for an insured party’s negligent supervision of a third-party

assailant. The abuse and molestation exclusion originated in the

1980s in response to an increasing number of far-reaching

sexual abuse claims against organizations that alleged harm to

children arising from negligent hiring or supervision, rather than

from the abuse itself. See Bartley, The Liability Insurance

Regulations of Religious Institutions After the Catholic Church

Sexual Abuse Scandal, 16 Conn. Ins. L. J. 505, 517-18, 530

(2010). Because the basis for such claims was the negligent

conduct of a third party, rather than the intentional conduct of the

alleged abuser, existing policy exclusions for intentional acts

were insufficient to shield insurers from coverage obligations.

See id.

A second set of circumstances is where a claim generally would

be brought directly against an abuser, but the abuser is deemed

incapable of intentional conduct by virtue of a mental disease or

defect. Even though, ordinarily, abuse is intentional conduct, in

such a situation the abuser’s inability to act with intent renders

the intentional acts exclusion inapplicable. See, e.g., Merrimack

Mut. Fire Ins. Co. v. Ramsey, 117 Conn. App. 769, 770, 772-773,

982 A.2d 195 (2009) (abuse and molestation exclusion

precluded coverage where insured sexually assaulted romantic

partner but insurer could not rely upon exclusion for intentional

acts because insured suffered from psychiatric disorder and

could not act with intent).

Id. at 741-42 (footnotes omitted). In the case before us, the insurance policy

followed this trend because the policy states that the “exclusion applies

regardless of whether the acts enumerated above were committed

intentionally, negligently, inadvertently, or with the belief, erroneous or

otherwise, that the other party consented . . . .”

44

In addition, the Krusell court stated, “An abuse and molestation

exclusion shields insurers from liability in such situations by precluding

coverage for any claim ‘arising out of’ abuse or molestation, as opposed to

claims seeking recovery on the basis of intentional conduct.” Id. at 742. The

physical and sexual abuse exclusion in the subject policy before this Court

also includes the “arising out of, related to or in any other way connected to”

language that would shield First Community from negligence claims that

result from properly excluded conduct. Accordingly, the Krusell court stated:

The contexts in which abuse and molestation exclusions arose

are instructive here. First, that the rationale for including such

exclusions was to enforce the intentional acts exclusion in

particular factual circumstances confirms that an ordinary

understanding of the term “physical abuse” remains limited to

deliberately harmful treatment. Insurers did not adopt the abuse

and molestation exclusion to expand the scope of conduct for

which coverage was precluded so as to include any physically

harmful treatment. Rather the rationale was to shield themselves

from liability for abuse or molestation claims where they

unexpectedly could not rely upon the intentional acts exclusion

to preclude coverage. In addition, the fact that one of the contexts

in which such provisions first arose involved the physical or

sexual abuse of parishioners by priests reaffirms that the term

“abuse” implies a qualitative aspect, such as imbalance of power,

to the harmful conduct.

Id. at 742-43. 5

5

One feature of cases where abuse exclusions have been found to preclude

coverage is where there is an imbalance of power, such as in a case with a

domestic violence component. For example, Miglino involved a domestic

violence scenario where the insured’s sister shot her son-in-law while he was

45

Catalina West further contends that the trial court misapprehended that

the term “physical abuse” is a compound word, and that this matters because

compound words carry “a definition that is different than mere reliance on

the definition of one of its component words [].” Dep’t of Highway Safety &

Motor Vehicles v. Chakrin, 304 So. 3d 822, 833 (Fla. 2d DCA 2020). As

stated in Grammarly.com:

Compound words are when two or more words combine to form

a new single word or a phrase that acts like a single word.

There are three different types of compound words in grammar:

open compound words with spaces between the words (ice

cream), closed compound words with no spaces (firefighters),

and hyphenated compound words (up-to-date).

...

Compound words have distinct meanings that differ from those

of the words they’re made of. For example, the compound word

grandparent is made from the individual words grand and parent.

Grandparent acts as its own word with unique definition, distinct

from the definitions of grand and parent.

...

in divorce proceedings with the insured’s sister’s daughter. Miglino, 174 So.

3d at 480-82. See also, e.g., McAuliffe v. Northern Ins. Co. of N.Y., 69 F.3d

277, 279-80 (8th Cir. 1995) (finding abuse and molestation exclusion

precluded coverage of claim because it was based on a sexual relationship

between a married parishioner and her priest); American Commerce Ins. Co.

v. Porto, 811 A.2d 1185, 1201 (R.I. 2002) (finding abuse and molestation

exclusion precluded coverage of claim because it was based on a claim

about a Boy Scout leader’s sexual abuse of a troop member).

46

Open compound words have spaces in between the words,

which can make them hard to identify. But despite how they look,

open compound words always act like single words. They always

appear together in the same order, and they each have their own

unique meanings.

...

Examples of open compound words, [for e.g.] [include,] black

eye[,] heart attack[,] prime minister[,] cell phone[,] . . . [,] full

moon[,] . . . [,] role model[,] . . . [,] slam dunk[,] sleeping bag[,]

time capsule[,] . . . [,] video game[,] vending machine[,] waiting

room[,] . . . .

Matt Ellis, Compound Words: Open, Closed, or Hyphenated?, GRAMMARLY

(updated January 21, 2025). 6

As the example Catalina West gives in support of its position, “abuse”

is often joined with other words when referring to mistreatment in situations

where there is an imbalance of power or exploitation of authority such as in

the following terms: “adult abuse,” “child abuse,” “domestic abuse,” “elder

abuse,” “sexual abuse,” and “spousal abuse.” Thus, the phrase “physical

abuse” is an open compound word that has a meaning of its own, separate

and apart from each of the two words that make up the phrase. As to its plain

and commonly accepted meaning, the American Psychological Association

defines the phrase “physical abuse” as:

6

https://www.grammarly.com/blog/grammar/open-and-closed-compound-

words/ (emphasis omitted).

47

deliberately aggressive or violent behavior by one person toward

another that results in bodily injury. Physical abuse may involve

such actions as punching, kicking, biting, choking, burning,

shaking, and beating, . . . . It is most frequently observed in

relationships of trust, particularly between parents and children

or between intimate partners (e.g., in a marriage [or other

relationship]) . . . .

Physical Abuse, AMERICAN PSYCHOLOGICAL ASSOCIATION (updated on April

19, 2018), https://dictionary.apa.org/physical-abuse. Thus, the phrase

“physical abuse” is a common compound word with a distinct definition,

separate from the definitions of the word “physical” and the word “abuse.”

Here, the record does not indicate there was any relationship of trust

between the victim, Macko, and the unknown assailant. The occurrence in

the underlying case was a random act of violence by an unknown assailant

that does not fit in with the commonly accepted meaning of the phrase

“physical abuse.” If the unknown assailant were arrested for the shooting, he

or she would not be charged with physical abuse. The assailant would be

charged with aggravated assault with a deadly weapon or murder.

Also, applicable here is “the doctrine of noscitur a sociis, a word is

known by the company it keeps, and one must examine the other words used

in a string of concepts to derive the drafters’ intent.” Aeorothrust Corp. v.

Granada Ins. Co., 904 So. 2d 470, 472 (Fla. 3d DCA 2005). This doctrine

applies to contracts as well, not just statutes. Churchville v. GACS, Inc., 973

48

So. 2d 1212, 1215 (Fla. 1st DCA 2008). Applying this rule to the “physical

abuse” exclusion in the First Community policy, the trial court should have

construed the phrase “physical abuse” relative to the other acts in the

exclusion to interpret the meaning of “physical abuse.” In this case, other

acts listed included, for example, sexual abuse. Lexington Ins. Co. v. New

Mexico Ass’n of Cntys., 2010 WL 11597831, *7, No. 07-464 RB/LAM,

(D.N.M. June 28, 2010) (“The fact that ‘abuse’ is listed with the term

‘molestation’ indicates that it refers to ‘sexual’ abuse and molestation.”). The

exclusion confusingly includes “physical abuse” in the same line as “sexual

abuse.” “Sexual abuse” refers to acts of a sexual or physical touching of an

inappropriate sexual nature. This is not applicable in any way to the type of

incident that occurred in the underlying lawsuit.

The majority suggests that Catalina West’s interpretation is “somewhat

novel,” but court decisions indicate that this narrower definition goes back to

at least 2010. Recent decisions indicate the trend in the United States is for

courts not to apply abuse exclusions in insurance policies in cases that deal

with physical harm by an unknown assailant or an assailant with no

relationship to the victim. The Krusell case, as previously discussed, is one

such example. See also Dorchester Mut. Ins. Co. v. Miville, 204 N.E.3d 382,

391-92 (Mass. 2023) (finding that abuse and molestation exclusion did not

49

apply where the unprovoked assailant charged at a 61-year-old man without

warning, punched him in the face, knocked him to the ground, and kicked

him several times); Riley, 829 So. 2d at 484, 490-91 (stating that sexual

and/or physical abuse exclusion did not apply on a claim brought by nursing

home after one resident physically attacked another resident with a pipe;

finding that the incident did not constitute “physical abuse” because

“[p]hysical abuse, as opposed to simple assault, is generally the act of a

person in control, dominance, or authority who misuses his position to harm

or mistreat a person over whom he exercises such control. The act of one

nursing home resident attacking a fellow resident is not abuse because the

element of control is lacking”); New Mexico Ass’n of Cntys., supra (rejecting

broad definition of abuse to mean “mistreat,” to expand the exclusion to the

strip searches of detention center detainees); Norgren v. Mut. of Enumclaw

Ins. Co., 2015 WL 3948145, *2, No. 3:14-cv-01591-0SB (U.S. Dist. Ct. D. Or.

June 29, 2015) (finding that physical and mental abuse exclusion did not

preclude coverage for claim brought against parents whose middle-school-

aged child repeatedly assaulted a classmate; court rejected insurer’s broad

definition of “physically harmful treatment” and stated, “Taken at face value,

that definition would encompass all ‘treatment’ that was ‘physically harmful,’

and the exception then would swallow the rule”); Kemper Independence Ins.

50

Co. v. Tarzia, 2012 WL 2327703 No. 3:11-cv-294 (JCH), at *7 (U.S. Dist. Ct.

D. Conn. June 19, 2012) (court held that acts taken in self-defense did not

fall under the “physical and mental abuse” policy exclusion); N.M. Ass’n of

Cntys., supra at *7-*8 (“The fact that ‘abuse’ is listed with the term

‘molestation’ indicates that it refers to ‘sexual’ abuse and molestation. In its

common and ordinary usage, molestation refers to ‘sexual’ molestation. . . .

[I]f the Court were to define ‘abuse’ or ‘humiliation’ broadly, as Lexington

proposes, these exclusions would swallow up almost every other provision

in the parties’ agreement, as every . . . personal injury would arguably

represent a form of abuse or humiliation.”). As these cases show, courts find

coverage where the physical harm consists of physical injuries or deaths by

an unknown assailant or assailant with no association to the victim.

The majority states that numerous courts from other jurisdictions have

interpreted the exclusion in the manner the majority has and cites to twenty-

three cases listed on pages 16 through 20 of the majority’s opinion. However,

except for American Family Mutual Insurance Company v. Chiczewski, 700

N.E.2d 777, 778 (Ill. App. Ct. 1998) (which was cited in the Krusell opinion

and which Krusell declined to follow), all the cases are distinguishable in that

the abuse was committed by someone who knew the victim, was in a

relationship with the victim, or had some sort of relationship to the victim or

51

the abuse involved sexual abuse or molestation, for e.g., hazing by a

fraternity brother of one of the incoming pledges; a child care worker or

babysitter taking care of a child in a home, daycare, or school; an elderly

person in the care of an adult care facility; adoptive parents taking care of a

newly adopted child; a motel owner sexually exploiting two teenagers who

the owner knew; a priest who was in a relationship with parishioner he was

counseling; a domestic violence situation between a girlfriend and a

boyfriend; neighbors who knew each other; a high school female sexually

molested and injured by two high school males attending a high school party;

a nightclub attendee who was assaulted by a bouncer working at the

nightclub; and a minor with disabilities battered and verbally abused by her

teacher.

The majority states Catalina West frames its analysis from the

insured’s perspective — what would a reasonable insured have reasonably

believed was covered under the policy. This majority asserts this doctrine of

reasonable expectations has been rejected by the Florida Supreme Court.

See QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass’n, Inc., 94 So. 3d

541, 549 (Fla. 2012). However, the Florida Supreme Court has not applied

the doctrine of reasonable expectations because, as it has stated, “There is

no need for it if the policy provisions are ambiguous because in Florida

52

ambiguities are construed against the insurer.” Deni Assocs. of Fla., Inc. v.

State Farm Fire & Cas. Ins. Co., 711 So. 2d 1135, 1140 (Fla. 1998). In Am.

Strategic Ins. Co. v. Lucas-Solomon, 927 So. 2d 184 (Fla. 2d DCA 2006),

the Second District Court of Appeal stated:

In interpreting an insurance contract we must consider the intent

and reasonable expectations of the parties in entering into the

agreement. Hence, we must evaluate not only [the insurer’s]

contract form, but also [the insured’s] knowledge and

understanding as a layman and his normal expectation of the

extent of coverage of the policy.

Id. at 186 (citing Commerce Nat’l Bank in Lake Worth v. Safeco Ins. Co. of

Am., 252 So. 2d 248, 252 (Fla. 4th DCA 1971)).

In addition, the Massachusetts Supreme Court did not apply the

reasonable expectations doctrine in Krusell. Krusell used the phrase

“reasonable insured,” as does Catalina West, in the same manner that

Florida courts have used the phrase when they refer to giving terms “the

meaning that an average buyer of an insurance policy would give them,” and

when they hold that courts are to interpret ambiguous provisions in favor of

the insured as a “layperson” or “man on the street” would understand the

provisions to be. See Hrynkiw, 844 So. 2d at 742 (“[T]he proper inquiry is not

whether a legal scholar can, with learned deliberation, comprehend the

meaning of an insurance policy provision, but instead, whether it is

understandable to a layperson.” (citing State Farm Fire & Cas. Co. v. Castillo,

53

829 So. 2d 242, 244 (Fla. 3d DCA 2002) (holding that policy terms “should

be given their plain and ambiguous meaning as understood by the ‘man-on-

the-street.’”)); see also Adelberg, 698 So. 2d at 830; Royal Crane, LLC, 169

So. 3d at 182. First Community concedes this point in its Answer Brief.

Finally, the majority states that the policy under review excludes liability

coverage for criminal acts; however, this is not entirely accurate. First

Community did not have an assault and battery exclusion in the subject

policy. In its Reservation of Rights letter, First Community stated, “This

incident is alleged to have involved assault and battery . . . .” If First

Community wanted to exclude assault and battery, it could have included an

assault and battery exclusion in the insurance policy. See Perrine Food

Retailers, Inc. v. Odyssey Re (London) Ltd., 721 So. 2d 402, 404 (Fla. 3d

DCA 1998) (holding that negligence claim against store owner for failing to

maintain the premises/provide adequate security arising out of an assault

and battery of a patron robbed at knife point and stabbed was excluded by

the policy’s assault and battery exclusion); Wilshire Ins. Co. v. Poinciana

Grocer, Inc., 151 So. 3d 55, 56-57 (Fla. 5th DCA 2014) (finding assault and

battery exclusion precluded coverage for store patron’s alleged stabbing of

a trash collector on the store premises). First Community chose not to

include such an exclusion.

54

CONCLUSION

For the reasons stated, I do not believe we are constrained to follow

Miglino and conclude that the term “physical abuse” in the policy is

ambiguous. Although the trial court believed it was bound by Miglino, the

facts in Miglino differ significantly from those of the case before us. Thus, we

need not follow Miglino. Florida Dept. of Transp. v. Juliano, 801 So. 2d 101,

106 (Fla. 2001) (“Under the law of the case doctrine, a trial court is bound to

follow prior rulings of the appellate court as long as the facts on which such

decision are based continue to be the facts of the case.”). Having concluded

that the exclusionary provision of the policy is ambiguous and susceptible to

more than one interpretation, the “meaning must be construed in favor of the

insured, since it is the insurer who usually drafts the policy.” State Farm Mut.

Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245, 1248 (Fla. 1986). Consequently,

I would hold that a “physical abuse” exclusion such as the one in the case

before us does not include an ambush and shooting by an unknown

assailant. I would thus reverse the final declaratory judgment in favor of First

Community based on the trial court’s Final Judgment in Favor of Plaintiff

granting First Community’s motion for summary judgment, with respect to

the duty to defend and indemnify.

55