17 Fla. L. Weekly Supp. 444a
Online Reference: FLWSUPP 1706FERRInsurance — Noncommercial aircraft — Wrongful death — Flight during which accident occurred and on which instant declaratory action and underlying liability action were based fell outside terms of noncommercial aircraft insurance policy, and policy provided no liability coverage for accident, where accident occurred when aircraft was being used to transport decedent for hire, money, and compensation, and operation and use of aircraft on the flight at issue was without an FAA Operator Certificate, in direct violation of FAA requirements — Moreover, because aircraft lease clearly and unambiguously prohibited all such operations, aircraft that is subject of action was converted, and insurer had no obligation to pay lienholder listed on breach of warranty endorsement — Jurisdiction reserved to determine insurer’s entitlement to reimbursement of amounts paid or to be paid in settlement of wrongful death actions and defense costs and to determine insurer’s entitlement to interest on reimbursement of these amounts
AMERICAN HOME ASSURANCE COMPANY, Plaintiff/Intervenor, vs. DANNY FERRER d/b/a FERRER AVIATION, DANNY FERRER, AEROLEASE OF AMERICA, INC., a corporation, and BIOMETRIC SCIENCE FOUNDATION, LLC, and LINDA PALAS as Personal Representative of the Estate of DONALD PALAS, deceased, and AIR AMERICA, INC., a corporation, and AEROBANC OF AMERICA, a corporation, and JOHN K. VREELAND, Administrator Ad Litem for the Estate of JOSE MARTINEZ, and the Personal Representative of the Estate of JOSE MARTINEZ, Deceased, Defendants. Circuit Court, 10th Judicial Circuit in and for Polk County. Case No. 53-2005-CA-003535 (07). February 4, 2008. Charles B. Curry, Judge.
AMENDED FINAL JUDGMENT IN FAVOR OF PLAINTIFF/INTERVENOR AMERICAN HOME ASSURANCE COMPANY1
[Editor’s note: Per Curiam Affirmed. (Fla.2DCA, March 26, 2010.]
THIS CAUSE came before the Court on Cross Summary Judgment Motions in the Declaratory Action described more specifically below filed by American Home Assurance Company (American Home), and Aerolease ofAmerica, Inc. (Aerolease). The Court having reviewed American Home’s May 26, 2006, Motion for Summary Judgment, the August 13, 2007, Supplement to the Motion, the papers filed in support of the Motion and the Supplement, as well as the Oppositions and Responses,2 and the papers filed in support of the Oppositions and Responses, and Aerolease’s August 10, 2007, Motion for Summary Judgment along with the papers filed in support of and papers filed in opposition to Aerolease’s Motion, and having heard argument of counsel and subsequently having reviewed Aerolease’s October 5, 2007, Motion for Rehearing and American Home’s October 11, 2007, Opposition to the Motion for Rehearing and the October 25, 2007, Supplement to the Opposition and the papers filed in opposition to the Motion for Rehearing as well as Aerolease’s November 5, 2007, Reply to American Home’s Opposition to the Motion for Rehearing, and based on the evidence presented, and being otherwise fully advised in the premises, hereby enters Final Judgment in favor of American Home and,
IT IS ADJUDGED THAT:
1. There is no genuine issue as to any material fact that Danny Ferrer d/b/a Ferrer Aviation was transporting Dr. Martinez for hire, money and compensation and such transportation included the accident flight.
2. There is no genuine issue as to any material fact that Danny Ferrer d/b/a Ferrer Aviation’s operation and use of the aircraft on the accident flight was without an FAA Operator Certificate (including a “Part 135 Certificate”), and was in direct violation of the FAA’s requirement that such operations be operated under an FAA Operator Certificate.
3. There is no genuine issue as to any material fact that the Aircraft Lease clearly and unambiguously prohibits all such operations. Therefore, as a matter of law the aircraft that is the subject of this action was converted, thereby excluding the breach of warranty coverage. As such, there is no coverage provided to Aerolease of America, Inc., the lien holder listed on the Breach of Warranty endorsement, and American Home has no obligation to pay Aerolease of America, Inc. under the Breach of Warranty endorsement.
4. As a matter of law Danny Ferrer d/b/a Ferrer Aviation’s flight that is the subject of this declaratory action and the underlying liability action fell outside the terms of American Home’s non-commercial aircraft insurance policy, and such insurance policy provided no liability coverage for this accident.
5. The Court reserves jurisdiction to determine American Home’s entitlement to reimbursement of the amounts paid or to be paid in settlement of the wrongful death actions and the defense costs, including costs, expenses, and attorney’s fees, paid or to be paid on behalf of and in defense of the Defendants in the wrongful death actions. The Court also reserves jurisdiction to determine American Home’s entitlement to pre judgment and post-judgment interest on reimbursement of the amounts paid or to be paid in settlement of the wrongful death actions and the defense costs, including costs, expenses, and attorney’s fees, paid or to be paid on behalf of and in defense of the Defendants in the wrongful death actions.
6. Accordingly, this Court hereby enters this Final Judgment in favor of American Home Assurance Company, and against Defendants, Danny Ferrer d/b/a Ferrer Aviation, Danny Ferrer, Aerolease of America, Inc., Biometric Science Foundation, LLC, Linda Palas as Personal Representative of the Estate of Donald Palas, deceased, Air America, Inc., and John K. Vreeland, Administrator Ad Litem for the Estate of Jose Martinez, and the Personal Representative of the Estate of Jose Martinez, Deceased, finding that American Home has no duty to defend or indemnify under the insurance policy at issue.
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1The purpose of this Amended Final Judgment is to correct a clerical mistake made in the Final Judgment dated January 4, 2008, and filed with the Clerk of the Circuit Court, Polk County, on February 5, 2008. The Final Judgment was actually entered on February 4, 2008, and not on January 4. Accordingly, this Amended Final Judgment reflects the correct date of entry, February 4, 2008.
2Aerolease served two Oppositions: 1) the November 22, 2006, Response in Opposition to Intervenor’s Motion for Summary Judgment and Memorandum in Support Thereof; and 2) the August 30, 2007, Amended Response to Intervenor’s Motion for Summary Judgment and Memorandum in Support Thereof and Intervenor’s Supplement to the May 26, 2006 Motion for Summary Judgment. John K. Vreeland, administrator ad litem for the Estate of Jose Martinez, and the Personal Representative of the Estate of Jose Martinez, Deceased, served two Responses: 1) the June 16, 2006, Response of Plaintiff, John K. Vreeland, Administrator Ad Litem of the Estate of Jose Martinez and the Personal Representative of the Estate of Jose Martinez, Deceased, to the Intervenor, American Home Assurance Company’s Motion for Summary Judgment; and 2) the August 21, 2007, Response to Pending Motions for Summary Judgment Regarding Insurance Coverage.
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[Editor’s note: Affirmed on appeal. See below.]
AEROLEASE OF AMERICA, Appellant, v. AMERICAN HOME ASSURANCE COMPANY, Appellee. 2nd District. Case No. 2D07-5948. Opinion filed March 26, 2010. Appeal from the Circuit Court for Polk County; Charles B. Curry and Dennis P. Maloney, Judges. Counsel: Edward R. Curtis, Tripp Scott, P.A., Fort Lauderdale, for Appellant. Gregory P. Sreenan and Erik M. Vieira, Sreenan & Associates, P.A., Miami, for Appellee.
(PER CURIAM.) Affirmed. (VILLANTI, WALLACE, and LaROSE, JJ., Concur.)