          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                   ALLSTATE INSURANCE COMPANY,
                             Appellant,

                                     v.

    UNITED SERVICES AUTOMOBILE ASSOCIATION a/k/a USAA,
        MELANIE MANZO-PIANELLI and ALANA PROCTOR,
                        Appellees.

                              No. 4D14-1183

                           [September 16, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No. 09-
57134CACE(12).

   Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for appellant.

  Charles M-P George of Law Offices of Charles M-P George, Coral Gables,
and Christopher Wadsworth and Daniel L. Margrey of Wadsworth Huott,
LLP, Miami, for appellee United Services Automobile Association a/k/a
USAA.

MAY, J.

   Allstate Insurance Company (“Allstate”) appeals a final summary
judgment in favor of United Services Automobile Association (“USAA”) that
determined the priority of coverage between the insurers. Allstate argues
the trial court erred in entering summary judgment for USAA because its
pleadings and motion requested a priority in coverage different than that
argued at the hearing and determined by the trial court. We agree the trial
court correctly determined the priority of coverage, but that did not entitle
USAA to a summary judgment in its favor. We therefore reverse.

   The underlying accident occurred in 2007 when the permissive driver
of a car owned by another was involved in an automobile accident. The
car’s owner had a State Farm insurance policy that provided $100,000 in
coverage, and an Allstate umbrella policy that provided $1,000,000 in
coverage and required the owner to maintain underlying limits of $250,000
per person. USAA provided uninsured motorist’s (“UM”) coverage to the
injured person.

   State Farm tendered its $100,000 policy limits to the injured person,
who executed a partial release in favor of the car owner. The injured
person then sought to recover from the car owner’s Allstate umbrella
policy. Allstate denied coverage.

   As a result, the injured person filed a complaint against her UM insurer,
USAA. This caused USAA to file a third-party complaint against Allstate,
the injured person, and the permissive driver. The complaint sought a
declaration that Allstate’s umbrella policy applied before USAA’s UM
policy.1

   USAA filed a second amended complaint “to determine the legal rights
and responsibilities of all parties; to determine the priority of coverage; and
to determine any applicable offsets.” USAA alleged that:

      (1) Allstate stands in line before USAA’s UM coverage; and

      (2) USAA seeks a declaration that the priority of coverage
          should be Allstate first and USAA last.

Allstate answered and asserted affirmative defenses, moved to dismiss,
and counterclaimed for declaratory relief.2

   USAA moved for summary judgment against Allstate, and argued that
Allstate’s umbrella policy provided coverage before USAA’s UM policy.
Allstate responded that the car owner’s failure to carry the required
$250,000 limits in underlying coverage created a $150,000 gap in liability
coverage, and that gap was uninsured, thereby triggering USAA’s UM
policy.3 Allstate asked the court to deny USAA’s motion for summary
judgment.



1 In July 2012, the injured person amended her complaint to add a cause of
action against the permissive driver, but no one sued the car’s owner.

2During the third-party complaint litigation, USAA moved for attorney’s fees and
costs as a sanction, pursuant to section 57.105, Florida Statutes (2014).

3Allstate also argued that it did not have coverage under its umbrella policy
because neither the car’s owner nor his estate was ever named in the action.


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   Notwithstanding its consistent position throughout the litigation that
Allstate’s policy applied before USAA’s policy, USAA admitted at the
summary judgment hearing that its policy provided coverage for the
$150,000 gap before Allstate’s umbrella policy kicked in:

      [W]e believe that State Farm, who was the underlying
      tortfeasor’s auto policy, is the first hundred thousand dollars.
      Thereafter, there’s a gap in coverage from that $100,000 up to
      $250,000. We believe that the UM carrier, which is USAA,
      bridges that gap because there is no other available coverage.
      Doesn’t exist. After $250,000, Allstate’s umbrella policy kicks
      in.

USAA then argued that the priority dispute arose only after USAA bridged
the $150,000 gap.

    Not surprisingly, Allstate agreed with USAA’s position at the hearing,
but maintained that USAA had changed its position on priority from the
relief sought in its complaint and in its motion for summary judgment.
Allstate was happy the parties agreed on priority, but asked the court to
deny the summary judgment motion because it had requested relief that
was diametrically opposed to the position USAA now took at the hearing:

      [W]hen you rule on a summary judgment motion and you
      enter a judgment, it’s based on the pleadings and the motions
      as filed. . . . So, in light of that fact, there is no question that
      what they’re asking for in their declaration, the priority of
      coverage finding that they’re asking in their pleading and their
      motion, they’re not entitled to. So, I also have a proposed
      order that I can hand to the Court.

    Both parties submitted their proposed orders. The court later entered
an order granting USAA’s summary judgment motion, making the
following findings on the priority of insurance coverage:

      1)   State Farm   -   $00.00 to $100,000.00
      2)   USAA         -   $100,000.01 to $249,999.99
      3)   Allstate     -   $250,000 to $1,250,000.00
      4)   USAA         -   Remainder Policy UM

From this summary judgment, Allstate now appeals.

   We have de novo review. Volusia Cnty. v. Aberdeen at Ormond Beach,
L.P., 760 So. 2d 126, 130 (Fla. 2000).

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   Allstate argues the trial court erred in granting summary judgment for
USAA, thereby effectively making USAA the prevailing party, when the
judgment was adverse to USAA’s allegations and its motion for summary
judgment. USAA had requested a declaration that Allstate’s umbrella
policy stood in line before USAA’s UM policy, but the court determined that
USAA’s policy stood in line before Allstate’s policy. It could not therefore
be the prevailing party.

   USAA responds that the significant issue here was the priority of the
insurance policies.       USAA claims it requested a generic priority
determination and prevailed on the issue when it received a declaration
prioritizing the policies. Allstate replies that USAA inaccurately describes
the relief it sought. The court’s priority determination was exactly the
opposite of that which USAA sought.

   The issue is whether a party can claim victory when it receives exactly
the opposite relief than it requested. The answer is no. See, e.g., Village
of Kings Creek Condo. Ass’n v. Goldberg, 596 So. 2d 1195, 1196 (Fla. 3d
DCA 1992).

    Throughout the third-party litigation, USAA asserted that Allstate’s
umbrella policy came first after the State Farm policy, and USAA’s UM
policy came after Allstate. Not once in its pleadings or motion did USAA
argue it was responsible for covering the $150,000 gap in coverage
between the State Farm and Allstate umbrella policy. See VonDrasek v.
City of St. Petersburg, 777 So. 2d 989, 991 (Fla. 2d DCA 2000) (“Pleadings
are intended, in part, to disclose each party’s respective position on the
legal issues involved in the lawsuit.”). The court did not grant USAA the
relief it requested; USAA could not be the prevailing party. Granoff v.
Seidle, 915 So. 2d 674, 677 (Fla. 5th DCA 2005).

    Because USAA did not meet its burden of proving it was entitled to the
relief requested as a matter of law, the trial court erred in entering
summary judgment for USAA. See Fla. R. Civ. P. 1.510(c); see also Bryson
v. Branch Banking & Trust Co., 75 So. 3d 783, 785 (Fla. 2d DCA 2011).
We therefore reverse the summary judgment and remand the case for
proceedings consistent with this opinion.

   Reversed and Remanded.

KLINGENSMITH, J., and ROBY, WILLIAM L., Associate Judge, concur.

                           *         *         *

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Not final until disposition of timely filed motion for rehearing.




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