DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

EXOTIC MOTORCARS AND JEWELRY, INC.,

Appellant,

v.

ESSEX INSURANCE COMPANY, A foreign company,

Appellee.

No. 4D13-3937

[November 19, 2014]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Eli Breger, Judge; L.T. Case No. 502008CA029422MB.

Bambi G. Blum of Bambi G. Blum, P.A., Miami, and Lance W. Shinder 

of Lance W. Shinder, P.A., Boca Raton, for appellant.

Mitchell L. Shadowitz of Shadowitz Associates, P.A., Boca Raton, for 

appellee.

MAY, J.

This is the second lap around our Court for Exotic Motorcars, as it 

appeals an adverse ruling on coverage on its Dealer’s Open Lot policy with 

Essex Insurance Company.1 The coverage issue arose from an accident 

that occurred when Exotic’s owner drove a vehicle to another dealership 

for an inspection and possible servicing. In its first lap, we held that the 

subject vehicle, a very expensive Porsche, was a titled vehicle and 

remanded the case “for the trial court to enter an amended final judgment 

and to make findings accordingly.” On this lap, Exotic argues the trial 

court erred in determining that the policy provided no coverage for the 

Porsche. We agree and reverse.

1 We previously reversed and remanded the case because the trial court’s final 

judgment after a four-day bench trial “contained no findings of fact, conclusions 

of law, or other indication of the basis for the trial court’s ruling.” Exotic 

Motorcars & Jewelry, Inc. v. Essex Ins. Co., 111 So. 3d 208, 208–09 (Fla. 4th DCA 

2013) (on reh’g).
2

Exotic obtained the Porsche from a California wholesale dealer and 

placed the car on its showroom floor. Two days later, a buyer signed a 

purchase contract with Exotic for the Porsche and left a $5,000 nonrefundable deposit. Exotic’s owner testified that because Exotic did not 

allow test drives of their expensive vehicles and had no service department, 

he drove the Porsche to Champion Motors for the inspection. The accident 

occurred en route to Champion. The buyer had planned to pick up the 

Porsche at Champion following the inspection. 

After the first appeal, we remanded the case for the trial court to enter 

an amended final judgment. The issues to be addressed were whether the 

Porsche was either in “transport” or on a “test drive” at the time of the 

accident. The trial court entered an amended final judgment in favor of 

the insurer. 

The trial court found that although the vehicle was covered under the 

policy, the accident was not a covered collision. The court found that the 

collision did not occur during a “test drive” as that term is commonly 

understood because “[n]o prospective purchaser was in the vehicle.” The 

court also found that the vehicle was not covered because “transport” 

means being moved by some method other than driving, and because “an 

inspection or certification is not a direct purchase.” Lastly, the court found 

that Exotic failed to prove damages even if the vehicle was covered. From 

this judgment, Exotic has appealed.

Exotic argues on appeal that the trial court gave too narrow an 

interpretation to the terms “test drive” and “transport”, thereby improperly 

denying coverage under the policy. The insurer responds that the common 

meaning of “test drive” requires the vehicle to be driven by the potential 

purchaser, that “transport” and “drive” are not synonymous, and that an 

inspection is not a “direct sale” under the policy. The insurer further 

argues that if coverage is found, Exotic failed to prove damages.

We have de novo review of orders interpreting provisions of an 

insurance policy. Penzer v. Transp. Ins. Co., 29 So. 3d 1000, 1005 (Fla. 

2010).

We begin at the beginning with the applicable policy provisions. The 

relevant part of the policy provides:

PART II – WHERE AND WHEN THIS POLICY COVERS

We cover loss which occurs during the policy period and which 

occurs:
3

. . . .

1. During a test drive of the covered vehicle . . . ;

2. During transport of the covered vehicle for direct purchase 

or sale . . . .

(Emphasis altered).

“[W]hen an insurance coverage term is not defined, the term should be 

given its plain and ordinary meaning.” Barcelona Hotel, LLC v. Nova Cas. 

Co., 57 So. 3d 228, 230–31 (Fla. 3d DCA 2011). Where a policy does not 

define a term, courts often discern the plain meaning of the term by relying 

on other sources, such as dictionaries, to determine the accepted meaning 

of the word. Id. at 231.

The Merriam-Webster Dictionary defines “test-drive” as “to drive (a 

motor vehicle) in order to evaluate performance.”2 The Random House 

Dictionary defines “test-drive” as “to drive (a vehicle) on the highway or a 

special track or route in order to evaluate performance and reliability.”3 

The Collins English Dictionary defines “test-drive” as “to drive (a car or 

other motor vehicle) for a limited period of time in order to assess its 

capabilities and limitations.”4 None of these definitions require a potential 

purchaser to be driving the car.

Although a potential purchaser could be the driver during a test drive, 

it could also be a mechanic testing performance after repair, or a car 

magazine testing a car to write a review on its performance.5 The term is 

unambiguous. The plain meaning of “test drive” includes any person 

driving the car for purposes of evaluating performance.

The insurer suggests that the Oxford Dictionary defines “test drive” as 

“an act of driving a motor vehicle that one is considering buying in order 

2 Test-Drive Definition, MERRIAM-WEBSTER.COM, http://www.merriamwebster.com/dictionary/test-drive (last visited July 11, 2014).

3 Test Drive Definition, DICTIONARY.COM, 

http://dictionary.reference.com/browse/test drive (last visited July 11, 2014).

4 Id.

5 See, e.g., Barry Winfield, 2009 Porsche 911 Carrera & Carrera S Test Drive, 

POPULAR MECHANICS (Oct. 1, 2009), 

http://www.popularmechanics.com/cars/reviews/drives/4270362.
4

to determine its quality.”6 This is not the only definition, and at best 

creates an ambiguity, which is construed against the insurer. Swire Pac. 

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

the cases relied upon by the insurer use the term “test drive” in reference 

to a potential purchaser driving the vehicle, they do not hold that a “test 

drive” is limited to that circumstance. See, e.g., Duncan Auto Realty, Ltd. 

v. Allstate Ins. Co., 754 So. 2d 863, 865 (Fla. 3d DCA 2000); Snyder v. 

State, 362 So. 2d 971, 972 (Fla. 1st DCA 1978).

Here, Exotic’s owner testified that he considered his drive to be a “test 

drive” because “a lot of these cars will sit in garages and they’re not very 

functional.” Because of the rare nature of the vehicles sold by Exotic, 

potential purchasers are not allowed to take test drives. Significantly, 

Exotic does not perform repair service so any issue with the car would 

have to be determined through a “test drive” by an employee and fixed at 

another location. 

In short, we hold that the term “test drive” includes the circumstances 

in this case. The policy therefore provided coverage for the loss. We 

reverse the trial court on its interpretation of “test drive” under this policy. 

Having reached this conclusion, it is unnecessary for us to address the 

alternative argument of whether the vehicle was in transport for direct 

purchase or sale at the time of the accident. 

Last, Exotic argues the trial court erred in finding that Exotic failed to 

prove damages. We agree. We have de novo review of this issue. Norman 

v. Padgett, 125 So. 3d 977, 978 (Fla. 4th DCA 2013).

The policy provides that the insurer will pay the smallest of the 

following:

1. The dealer’s purchase price, plus capital improvements;

2. The actual cash value of the covered vehicle, or the 

permanently installed equipment if that is all that is damaged 

or lost;

3. The cost to repair the covered vehicle or its permanently 

installed equipment with parts of like kind and quality, less 

any betterment as a result of the repair. The cost to repair 

6 Test Drive Definition, OXFORDDICTIONARIES.COM, 

http://www.oxforddictionaries.com/us/definition/american_english/test-drive 

(last visited July 11, 2014). 
5

will not include any diminished value as a result of the loss;

[or]

4. The limit per covered vehicle on the Declarations Page.

Exotic Motors proved its loss. The purchase price of the Porsche from 

the California wholesaler was $343,000.7 The purchaser agreed to buy the 

Porsche from Exotic for $372,000. The adjuster’s report reflected the 

actual cash value of the Porsche before the accident at $343,000. The

report also indicated that replacement parts to fix the vehicle alone would 

cost around $125,000. This did not include labor. Despite this estimate, 

the adjuster considered the Porsche “a possible total loss.” 

To obtain the maximum salvage value, Exotic found a German

engineering performance company that would convert the Carrera GT into 

a Mirage GT, one of only 25 others in the world. The conversion cost was

$395,000, plus $28,500 in storage and transportation fees. Exotic 

obtained a loan, known as a floorplan, on the Porsche for $340,000. The 

person who loaned the money ultimately “got the vehicle for . . . 340,000.” 

Given the testimony at trial, Exotic sustained its burden to prove its 

loss of $343,000. The trial court erred in finding that Exotic failed to prove 

damages. It proved the Porsche’s pre-collision value, both the purchase 

and sales price, and the cost of the conversion repair. Based on insurer’s 

total-loss determination, Exotic was entitled to the full value of the Porsche

prior to the accident less the deductible of $2,500, plus prejudgment 

interest.

Reversed and Remanded for entry of judgment for Exotic Motors for 

$340,500, plus prejudgment interest, and for such further relief as deemed 

necessary.

STEVENSON and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

7 Exotic had not yet paid the California wholesaler for the Porsche at the time of 

the accident. Ultimately, Exotic gave the wholesaler two cars—a Lamborghini 

and a Mercedes Benz—in exchange for the lost Porsche.