Cabellero was driving a company vehicle on the job when he crashed, killing himself and injuring Bautista, a co-employee.  Bautista sued Caballero’s estate for his personal injuries.  Mercury Insurance, the employer’s commercial auto carrier, brought a declaratory judgment action against Bautista seeking a declaration that an exclusion precluded coverage under its policy. 

Cross motions for summary judgment were filed.  The trial court denied Mercury’s motion and granted Bautista’s motion, ruling that there was insurance coverage for the crash.  The 4th DCA reversed. 

The exclusion at issue states that there is no coverage for, and Mercury’s duty to defend "does not apply to"

6.  Bodily injury to an employee of an insured … arising out of or within the course of employment, except with respect to a domestic employee if benefits are neither paid nor required to be provided under any Workers’ Compensation, disability benefits or other similar law.  This exclusion applies whether the insured may be liable as an employer or in any other capacity and to any obligation to share damages with or repay someone else who must pay damages because of the injury.

The 4th found that the exclusion applied in this scenario.  It noted that: 

There is no dispute (1) that Charlies’s [the employer] is ‘an insured’ within the meaning of the exclusion, (2) that Bautista was an employee of Charlie’s, and (3) that Bautista’s injuries arose out of or within the course of his employment with Charlie’s. 

The Court rejected Bautista’s argument that "an insured" must refer only to Cabellero, because Cabellero is the only "insured" he has sued.  "The exclusion is not confined to the parameters of a particular lawsuit, but is directed at the facts of the accident for which coverage is sought.  There is not getting around the fact that Charlie’s is "an insured" under the policy."

Mercury Insurance Company of Florida v. Bautista, ____ So.3d ____ (Fla. 4th DCA February 24, 2010). 

Bautista’s attorney made a valiant effort in showing that the exclusion either did not apply in these circumstances, or was ambiguous, by pointing out that "an insured" must refer to the employer and in this case, the employer was simply not sued. 

As with all insurance coverage cases, the outcome of this case, was dependent on the precise language in the policy.  While the Court found that this particular policy did not provide coverage, another policy, under the exact same circumstances may.