Philadelphia Indemnity Insurance Company, which had issued a $1 million business automobile insurance policy to Custom, tendered its policy limits to Mr. Monhollon.

Southern-Owners Insurance Company, which had issued a $1 million commercial general liability insurance policy to Custom, asked a federal district court in Florida to declare that it was not obligated to indemnify Custom or Mr. Busbee in Mr. Monhollon's action based on an exclusion in its policy's "hired auto and non-owned auto liability" endorsement.

The endorsement provided, generally, that Southern would "pay those sums that" Custom became "legally obligated to pay as damages because of 'bodily injury' or 'property damage' arising out of the maintenance or use of" an automobile that was used in Custom's business – but only if Custom did not have "any other insurance" available to it that afforded "the same or similar coverage."

Southern argued that the endorsement excepted coverage for Mr. Monhollon's claim because the Philadelphia policy afforded the "same or similar coverage" for the automobile accident and Philadelphia had tendered its policy limits to Mr. Monhollon.

Custom countered that the term "same or similar coverage" was ambiguous and, therefore, had to be construed in its favor as the insured. It contended that Southern's policy and the Philadelphia policy were not the "same or similar" but, instead, were materially different in both risk and scope, thereby obviating the applicability of the exclusion clause in the endorsement and affording coverage to Custom under the Southern policy.

The parties moved for summary judgment.

The District Court's Decision

The district court, applying Florida law, granted summary judgment in favor of Southern.

In its decision, the district court explained that if the coverage afforded to Custom under the Southern policy was the same as or similar to the coverage afforded to Custom under the Philadelphia policy, the exclusion applied, and the Southern policy did not afford coverage to Custom for Mr. Monhollon's claims.

The district court added that if, on the other hand, the coverage afforded under each policy was not the same or similar, the exclusion did not apply, and the Southern policy covered Custom's liability for Mr. Monhollon's claims.

The district court then reasoned that at the time of the automobile accident, Custom had "another policy" (the Philadelphia policy) that was "available to pay" – and that in fact did pay – "for the same [or similar] liability" (the damages resulting from the death of Ms. Monhollon) "claimed under the policy at issue" (the Southern policy).

Thus, the district court ruled, the coverage afforded by the two policies was the same or similar for purposes of the exclusion clause in the Southern policy's hired auto and non-owned auto liability endorsement. As a result, the district court concluded, the endorsement in the Southern policy "unambiguously" excluded coverage for the automobile accident, and Southern was entitled to final summary judgment in its favor.

The case is Southern-Owners Ins. Co. v. Custom Climate Concepts, Inc., No.: 8: 17-cv-2264-EAK-TGW (M.D. Fla. Sep. 10, 2019). Attorneys involved include: For Southern-Owners Insurance Company, a Foreign Corporation, Plaintiff: Andrew Frank Russo, LEAD ATTORNEY, Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, FL. For Custom Climate Concepts, Inc., Defendant: Matthew Bryan Taylor, LEAD ATTORNEY, McRae & Metcalf, PA, Tampa, FL. For John Monhollon, as Personal Respresentative of the Estate of Chastity Monhollon; deceased, Defendant: Peter J. Mackey, LEAD ATTORNEY, Mackey Law Group, PA, Bradenton, FL. For Custom Climate Concepts, Inc., Counter Claimant: Matthew Bryan Taylor, LEAD ATTORNEY, McRae & Metcalf, PA, Tampa, FL. For Southern-Owners Insurance Company, a Foreign Corporation, Counter Defendant: Andrew Frank Russo, LEAD ATTORNEY, Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, FL.