1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

GEICO INDEMNITY

COMPANY,

Plaintiff,

vs. CASE NO. 3:10cv163/RS-EMT

JOE DAN NELSON, JR,

TIM WARD, SARAH WARD,

and MARY FRENCH

Defendants.

_________________________________/

ORDER

Before me are Plaintiff’s Motion for Summary Judgment (Doc. 36) and 

Defendant Joe Nelson’s Motion for Summary Judgment (Doc. 39). Defendants 

Sarah Ward and Tim Ward filed a memorandum in opposition to Plaintiff’s motion 

and in support of Defendant Nelson’s motion. (Doc. 48). 

I. STANDARD OF REVIEW

The basic issue before the court on a motion for summary judgment is 

“whether the evidence presents a sufficient disagreement to require submission to a 

jury or whether it is so one-sided that one party must prevail as a matter of law.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). 

The moving party has the burden of showing the absence of a genuine issue as to 

any material fact, and in deciding whether the movant has met this burden, the 
2

court must view the movant’s evidence and all factual inferences arising from it in 

the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 

U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). 

Thus, if reasonable minds could differ on the inferences arising from undisputed 

facts, then a court should deny summary judgment. Miranda v. B & B Cash 

Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank 

& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, 

a mere ‘scintilla’ of evidence supporting the nonmoving party's position will not 

suffice; there must be enough of a showing that the jury could reasonably find for 

that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing

Anderson, 477 U.S. at 251). 

II. BACKGROUND

Plaintiff Geico issued an automobile insurance policy to Defendant Nelson. 

On June 26, 2009, Defendant Nelson and Defendants Tim Ward, Sarah Ward, and 

Mary French were involved in a single vehicle accident while Nelson was driving 

French’s vehicle. Sarah Ward is Nelson’s mother, Tim Ward is Nelson’s 

stepfather, and French is Nelson’s girlfriend. 

In December of 2009 Tim Ward and Sarah Ward filed a civil suit against 

Nelson and French, alleging that Nelson negligently operated the motor vehicle 

owned by French that resulted in the June 2009 accident. Geico then filed this case
3

seeking declaratory judgment that the auto policy between Geico and Nelson did 

not cover French’s automobile nor provide coverage for the injuries of the Wards, 

and therefore Geico is not obligated to defend or indemnify any of the Defendants. 

Plaintiff and Defendant Nelson have filed cross-motions for summary 

judgment. No factual issues are in dispute, and the parties agree that the only 

issues to be resolved in this case are two legal issues: (1) whether French’s vehicle 

was furnished for Nelson’s regular use, and therefore not covered under Nelson’s 

policy with Geico, and (2) whether Nelson and the Wards resided together in the 

same household, thus excluding the Wards from recovering from Nelson’s Geico 

policy due to the “family exclusion provision.”

III. ANALYSIS

Exclusionary clauses must be construed in favor of an insured. First 

Floridian Auto and Home Ins. Co. v. Thompson, 763 So.2d 407, 408 (Fla. 2d DCA 

2000). Insurance policy provisions which tend to limit or avoid liability are to be 

construed most liberally in favor of the insured and strictly against the insurer. 

National Auto. Ins. Ass’n v. Brumit, 98 So.2d 330, 332 (Fla. 1957). 

Non-Owned Auto Clause

Nelson’s insurance policy with Geico provides coverage for Nelson’s use of

non-owned vehicles, so long as the vehicle has not been “furnished for his regular 
4

use.” Plaintiff argues that French’s car was furnished for Nelson’s regular use, and 

therefore is excluded under the policy. 

Florida courts have found that “regular use” reasonably suggests principal 

use. U.S. Sugar Corp. v. Nationwide Mut. Ins. Co., 475 So.2d 1350, 1352 (Fla. 2d 

DCA 1985). Furthermore, the general purpose of a “non-owned auto” clause is to 

extend coverage to the insured when he is engaged in infrequent and casual use of 

an automobile other than the one described in the policy. Walters v. Nationwide 

Mut. Ins. Co., 161 So.2d 225, 227 (Fla. 1st DCA 1964). “Infrequent” and “casual” 

precisely describes Nelson’s use of French’s vehicle. It is undisputed that Nelson’s 

use of French’s vehicle was limited to approximately eight times per month with 

French as a passenger and approximately three times per month without French as 

a passenger. Nelson had to ask for French’s permission before using her vehicle. 

He did not have his own key to French’s vehicle and he had to use French’s keys 

when he drove her vehicle. Nelson had his own vehicle that he used to commute to 

work. Both he and French maintained separate insurance policies for their 

respective vehicles. 

French was the principal user of her vehicle, using it to commute to work on 

a regular basis. Nelson only drove French’s vehicle on occasion for social outings 

and to run errands when French’s vehicle was parked behind his own. Nelson did 

not have exclusive use or unrestricted access to French’s car, and he did not use 
5

her car interchangeably with his own. Thus, French’s vehicle was not furnished 

for Nelson’s regular use, and therefore is not excluded from coverage pursuant to 

the non-owned auto clause. 

Family Exclusion Provision

Nelson’s insurance policy with Geico also excluded from coverage “bodily 

injury to any insured or any member of an insured’s family residing in the 

insured’s household.” Plaintiff argues that Sarah Ward and Tim Ward are 

members of Nelson’s family residing in the same household as Nelson, and 

therefore excluded from coverage. 

Residency in a household is a mixed question of law and fact to be 

determined by the facts of each individual case. State Farm Mut. Auto. Ins. Co. v. 

Colon, 880 So.2d 782, 783 (Fla. 2d DCA 2004)(citing Row v. United Servs. Auto. 

Ass’n, 474 So.2d 348, 349 (Fla. 1st DCA 1985). However, when the facts are 

undisputed, as they are in this case, whether the facts fit within the insurance 

policy definition is a question of law that may be determined by the court. Id. 

There are three principal considerations when determining whether one is a 

resident of the same household under an insurance policy: (1) close ties of kinship, 

(2) a fixed dwelling unit, and (3) enjoyment of all the living facilities. See Dwelle 

v. State Farm Mut. Auto. Ins. Co., 839 So.2d 897, 899 (Fla. 1st DCA 2003)(citing 

Row at 349). 
6

The undisputed evidence in this case is that Nelson moved out of the Wards’ 

residence in October of 2008, eight months prior to the accident. Nelson lived 

with French and moved with her to several different homes. Nelson may have 

spent two or three nights a month at the Wards’ house, primarily when he and 

French quarreled. However, Nelson no longer had a key to the Wards’ house and 

had to knock to gain entry. Nelson also had to sleep on the sofa in the house 

because the Wards’ converted his former bedroom into a study. Nearly all of his 

personal property was kept at his home with French. Plaintiff argues that Nelson 

had dual residency with French and the Wards due to the occasional nights he 

spent at the Wards’ house and the fact that he on at least one occasion listed the 

Wards’ address as his mailing address. However, these facts are not sufficiently

significant to overcome the other undisputed evidence that Nelson no longer 

resided with the Wards. 

In addition, it is unclear under the policy whether Tim Ward, as Nelson’s 

mother’s spouse, constitutes a “member of the insured’s family.” This term is not 

clearly defined in the contract, and ambiguous coverage provisions are construed 

strictly against the insurer that drafted the policy and liberally in favor of the 

insured. Fayad v. Clarendon Nat. Ins. Co. 899 So.2d 1082, 1086 (Fla. 2005). 

Accordingly, I construe this provision against Plaintiff and find that Tim Ward is 

not a “member of the insured’s family.”
7

Because Tim Ward is not a member of Nelson’s family, and Nelson is not a 

resident of the same household as the Wards, the Wards are not excluded from 

coverage under the family exclusion provision of the policy.

IV. CONCLUSION

The non-owned auto clause and family exclusion provision of Nelson’s 

insurance policy do not preclude coverage of French’s vehicle or the Wards’ 

injuries. 

IT IS ORDERED:

1. Plaintiff’s motion for summary judgment (Doc.36) is denied.

2. Defendant’s motion for summary judgment (Doc. 39) is granted.

3. The Clerk is directed to enter declaratory judgment for Defendants.

4. The Court shall retain jurisdiction over this matter to consider the issues of 

costs and attorneys fees pursuant to Fla. Stat. § 627.428. Motions for

attorneys fees and costs shall be filed not later than March 10, 2011.

ORDERED on February 24, 2011.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE