The sole issue on appeal is whether enforcement of an insurance policy's excluded driver endorsement requires evidence that the insured consented to the vehicle's use by the excluded driver. We hold that consent is not required to enforce an excluded driver endorsement under either the insurance policy or Florida law.

The insurance policy at issue provided that Nationwide would pay for loss due to theft for a covered automobile. The policy also contained an excluded driver endorsement that provides, in pertinent part, as follows:

The provisions of this policy do not apply and no coverages are provided while an "auto" or "mobile equipment" is being driven or operated by the driver(s) or operator(s) named in the SCHEDULE OF EXCLUDED DRIVERS OR OPERATORS.

Jason Milstead was the only driver listed in the Schedule of Excluded Drivers or Operators. It is undisputed that Jason Milstead stole the insured vehicle and caused damage. Thereafter, Nationwide denied the insurance claim based upon the excluded driver endorsement. The Sign Store and New Road Equipment argued in their motion for summary judgment that the excluded driver endorsement was inapplicable because Jason Milstead stole the vehicle. The trial court agreed, and ruled that although driver exclusion clauses are enforceable in Florida, enforcement requires "consensual allowance of the excluded driver."

On appeal, the circuit court disagreed, stating:

Under the express terms of the exclusion, no insurance coverage is provided when the vehicle is operated by Jason Milstead. Although ambiguous policy provisions are interpreted liberally and construed in favor of the insured and strictly against the drafter, the policy in this case is not ambiguous. See [Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000)]. Reading the policy in the way that The Sign Store and New Road Equipment suggest requires the Court to insert a provision into the policy. The policy is not ambiguous, and therefore it was error for the trial court to add a consent requirement to the policy. Where policy language is unambiguous, the court's task is to apply the plain meaning of the words and phrases to the facts of the case, and it is not free to rewrite the policy or add meaning to it that is not really there. Flaxman v. Government Employees Ins. Co., 993 So. 2d 597 (Fla. 4th DCA 2008).

Though the specific issue had not been addressed by a Florida appellate court, it has been addressed in various other states. Those states have found the exclusion to unambiguously preclude coverage and that consent is immaterial. The court cited to cases from Louisiana, Missouri, Tennessee, and Michigan. Based on the Florida law that does not alter the plain terms of the policy and these out of state opinions, the court found that there was no coverage for this incident.

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Nationwide Mut. Fire Ins. Co. v. The Sign Store, Inc. et. al

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