              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT

JOHN E. MOXLEY, as Personal                  )
Representative of the Estate of Jake Bell,   )
                                             )
             Appellant,                      )
                                             )
v.                                           )       Case No: 2D13-4163
                                             )
U-HAUL CO. OF FLORIDA and INFINITY           )
INDEMNITY INSURANCE COMPANY,                 )
                                             )
             Appellees.                      )
                                             )

Opinion filed October 1, 2014.

Appeal from the Circuit Court for
Hillsborough County; Mark R. Wolfe, Judge.

Brandon G. Cathey, Brent G. Steinberg and
Elizete D. Velado of Swope Rodante, P.A.,
Tampa, for Appellant.

Fredric S. Zinober and Thomas A. Valdez
of Quintairos, Prieto, Wood & Boyer, P.A.,
Tampa; and Troy B. Froderman, admitted
pro hac vice, and Nicole M. Hamilton of
Polsinelli PC, Phoenix, Arizona, for
Appellees.


WALLACE, Judge.

             John E. Moxley, as Personal Representative of the Estate of Jake Bell,

deceased, challenges an order granting a summary judgment in favor of U-Haul Co. of

Florida (U-Haul) based on a release executed by Mr. Moxley's predecessor in interest.
Because the claims described in the release did not include the claims for which the

underlying action was brought, we reverse the circuit court's order and the resultant final

judgment entered in favor of U-Haul.

               I. THE FACTUAL AND PROCEDURAL BACKGROUND

              On May 2, 2007, Vernell Butler entered into a "U-Haul equipment rental

contract" and addendum (the Rental Agreement) with U-Haul whereby U-Haul granted

Ms. Butler and other authorized drivers the use of a U-Haul moving truck for three days.

Jake Bell was an authorized driver of the truck. On May 3, 2007, Mr. Bell was driving

the truck on Interstate 75 near Ocala when the truck collided with a vehicle operated by

Jayne Wakeman. As a result of the collision, Mr. Bell was killed and Ms. Wakeman

allegedly sustained serious injuries.

              Ms. Butler was appointed as the personal representative of Mr. Bell's

estate. After her appointment, Ms. Butler negotiated a settlement of certain claims that

Mr. Bell's estate had against U-Haul arising out of the collision. On February 20, 2009,

in exchange for $5000, Ms. Butler—acting in her capacity as personal representative—

executed a Release of All Claims, Confidentiality and Indemnity Agreement (the

Release) in favor of U-Haul and certain related parties. The Release referred to Ms.

Butler in her representative capacity as "CLAIMANT" and to U-Haul and its related

parties as "the RELEASED PARTIES." The Release provided, in pertinent part, as

follows:

              1. THE CLAIM

                     On or about May 3, 2007, an incident occurred on
              Interstate 75 near the intersection of State Road 200 in
              Ocala, Marion County, Florida, wherein JAKE BELL, JR. was
              allegedly injured and died as the result [of] an automobile



                                           -2-
accident (the "ÍNCIDENT"). CLAIMANT claims that at the
time and place aforesaid, the RELEASED PARTIES were
negligent, vicariously liable or are otherwise legally
responsible for the injuries and death of JAKE BELL, JR.
CLAIMANT further alleges that the Estate of JAKE BELL,
JR. and his survivors have suffered damages allowable
under the Florida Wrongful Death Act (collectively, the
"DAMAGES"). CLAIMANT affirms that she is the Personal
Representative of the Estate of JAKE BELL, JR. and is
otherwise qualified by law to settle all claims on behalf of the
Estate. The RELEASED PARTIES have denied and
continue to deny any and all responsibility for the DAMAGES
complained of by CLAIMANT.

2. SETTLEMENT AMOUNT

       CLAIMANT and the RELEASED PARTIES desire to
compromise and settle any and all claims of CLAIMANT
arising out of the INCIDENT. CLAIMANT has agreed to
accept the sum of FIVE THOUSAND and 00/100
[DOLLARS] ($5,000.00) ("SETTLEMENT AMOUNT") in
compromise and settlement of any and all claims for
DAMAGES to him/her, including any not now known or
contemplated, arising out of the aforementioned INCIDENT,
which he/she, his/her personal representatives, heirs or
assigns now have or may have hereafter against the
RELEASED PARTIES, and has further agreed to execute
this RELEASE in consideration of said payment. CLAIMANT
is responsible for his/her own attorney's fees and costs in
connection with the RELEASE and any legal proceedings
associated with the INCIDENT.

3. RELEASE OF CLAIMS

        CLAIMANT, for and in consideration of the
SETTLEMENT AMOUNT, receipt of which is hereby
acknowledged, does hereby remise, release, and forever
discharge the RELEASED PARTIES of and from any and all
manner of action and actions, cause and causes of action,
suits, sums of money, trespasses, agreements,
controversies, damages, claims, and demands whatsoever,
in law or in equity, which the undersigned ever had, now
has, or which he/she or his/her heirs, personal
representatives, or assigns hereafter can, shall, or may have
against the RELEASED PARTIES for, upon, or by reason of
damage to CLAIMANT arising out of the INCIDENT, or for,



                              -3-
              upon, or by reason of any matter, cause or thing whatsoever
              from the beginning of the world to the day and date of these
              presents. The CLAIMANT declares and represents that the
              DAMAGES sustained are or may be permanent and
              progressive in nature and in making this RELEASE, it is
              understood and agreed that CLAIMANT relies wholly upon
              the CLAIMANT'S judgment, belief, and knowledge of the
              nature, extent, effect, and duration of the DAMAGES and
              liability therefore [sic], and that this RELEASE is given freely
              without reliance upon any statement or representation of the
              RELEASED PARTIES or their representatives.

In addition to these paragraphs 1 through 3, the Release contained nine additional

paragraphs. The provisions of these additional paragraphs are not pertinent to the

determination of the issue before us.

              In May 2009, after the Release was signed, Ms. Butler, in her capacity as

personal representative of Mr. Bell's estate, filed an action against Ms. Wakeman for the

wrongful death of Mr. Bell. Ms. Wakeman, joined by her husband, filed a counterclaim

against Mr. Bell's estate.1 Neither U-Haul nor Mr. Bell's automobile liability insurance

carrier, Infinity Insurance Company, defended the counterclaim on behalf of Mr. Bell's

estate.2 Ultimately, the wrongful death claim filed on behalf of Mr. Bell's estate was

dismissed. After a bench trial, the Marion County Circuit Court entered a final judgment




              1Ms.   Wakeman and her husband also filed their own action against Ms.
Butler in her capacity as the personal representative of Mr. Bell's estate. In accordance
with the parties' stipulation, this action was abated and the claims made by Ms.
Wakeman and her husband were tried in connection with their counterclaim to the
complaint filed by Ms. Butler. The Release also pre-dated the separate action filed by
Ms. Wakeman and her husband.
              2The  circuit court did not reach the questions of whether either U-Haul or
Infinity was required to provide Mr. Bell's estate with such a defense. We express no
opinion on these issues.



                                            -4-
in favor of Ms. Wakeman and her husband and against Mr. Bell's estate for

$2,162,883.90.

               On September 21, 2011, Ms. Butler filed the underlying action in the

Hillsborough County Circuit Court against U-Haul and Infinity. In count one of her

second complaint, Ms. Butler alleged that U-Haul had breached its contractual duty

under the Rental Agreement by failing to provide the estate with a defense to the

counterclaim brought by Ms. Wakeman and her husband. In count two, Ms. Butler

alleged that U-Haul had breached its duty of good faith by failing to settle the claims

made against the estate by Ms. Wakeman and her husband. In counts three, four, and

five, Ms. Butler asserted various claims against Infinity.

             II. U-HAUL'S MOTION AND THE CIRCUIT COURT'S RULING

               U-Haul eventually moved for summary judgment on multiple grounds,

including on its defense that the Release executed by Ms. Butler barred the estate's

claims. For reasons not pertinent to our discussion, the circuit court ruled that it would

hear U-Haul's motion for summary judgment only as it related to the defense based on

the Release.

               After a hearing, the circuit court granted U-Haul's motion for summary

judgment on the ground that the scope of the Release was broad enough to bar Ms.

Butler's claims based on the alleged breach of U-Haul's contractual duty to provide the

estate with a defense to the claims brought by Ms. Wakeman and her husband. The

circuit court ruled as follows:

                      Here, [Ms. Butler] argues that the Release applied
               only to the wrongful death claim [Ms. Butler] made against
               [U-Haul] and does not apply to the present suit and the




                                            -5-
              alleged duty to defend. However, the plain language of the
              Release indicates otherwise. . . .

                     ....

                      The Release is extensive and comprehensive. It lasts
              "forever," and it bars [Ms. Butler] from bringing "any and all
              claims" against [U-Haul] for "any and all manner of action
              and actions" arising out of the May 3, 2007 collision. Count I
              of [Ms. Butler's] Amended Complaint arises out of the May 3,
              2007 collision. The Release is clear and unambiguous, and
              this Court "cannot indulge in construction or interpretation of
              its plain meaning." Vermut [v. Gen. Motors Corp, Inc.,
              Cadillac Div.], 773 So. 2d [126,] 128 [(Fla. 4th DCA 2000)
              (quoting Hurt v. Leatherby Ins. Co., 380 So. 2d 432, 433
              (Fla. 1980))]. Accordingly, [U-Haul's] Motion for Summary
              Judgment on Count I of [Ms. Butler's] Second Complaint is
              hereby GRANTED.

After the entry of the summary judgment, the circuit court entered final judgment in favor

of U-Haul on count one, the claim for failure to provide a defense, and on count two,

which alleged U-Haul's bad faith failure to settle the claims against the estate, thereby

disposing of the entire case as to U-Haul. The estate's claims against Infinity remained

pending. This appeal followed.

              After the circuit court entered summary judgment but before the case was

concluded as to U-Haul by the entry of the final judgment, Ms. Butler died. John E.

Moxley was appointed as the successor personal representative of Mr. Bell's estate.

The circuit court entered an order substituting Mr. Moxley as the party plaintiff in the

litigation.

                                III. FRAMING THE ISSUE

              The issue that we are called upon to decide in this case is quite narrow.

We need only determine if the Release executed by Ms. Butler in favor of U-Haul was

sufficiently broad that it released the estate's claims based on the alleged breach of U-



                                            -6-
Haul's contractual duties to the estate with regard to the claims brought by Ms.

Wakeman and her husband. The circuit court's ruling regarding the scope of a release

on a motion for summary judgment is a question of law that we review de novo. See

Kirton v. Fields, 997 So. 2d 349, 352 (Fla. 2008) (citing D'Angelo v. Fitzmaurice, 863

So. 2d 311, 314 (Fla. 2003)); Alderman v. BCI Eng'rs & Scientists, Inc., 68 So. 3d 396,

399 (Fla. 2d DCA 2011); AXA Equitable Life Ins. Co. v. Gelpi, 12 So. 3d 783, 785 (Fla.

3d DCA 2009).

                                     IV. DISCUSSION

              In the circuit court, Ms. Butler argued that the scope of the Release was

limited to the estate's wrongful death claim against U-Haul and that the Release was

inapplicable to the claims made in the underlying action arising out of U-Haul's alleged

breach of its contractual duty to defend. In rejecting Ms. Butler's argument for a limited

interpretation of the Release, the circuit court focused on the broad language contained

in paragraph 3 of the Release. The circuit concluded that the "extensive and

comprehensive" language contained in the Release's paragraph 3 barred Ms. Butler

"from bringing 'any and all claims' against [U-Haul] for 'any and all manner of action and

actions' arising out of the May 3, 2007 collision."

              In considering the effect to be given to the Release, we begin with "the

assumption that the released claims are those that were contemplated by the

agreement." Mazzoni Farms, Inc. v. E.I. DuPont de Nemours & Co., 761 So. 2d 306,

315 (Fla. 2000). We are also guided by the teaching of the Florida Supreme Court that

we must give effect to the entire document and not merely consider its provisions in

isolation from each other:




                                            -7-
              [A]s the district court stated below, " '[t]he construction and
              effect to be accorded a release depends on its purpose, the
              terms in which it is stated, and the subject matter to which it
              applies. . . . In construing a release and determining the
              intent of the parties, the entire instrument, and not detached
              sections of it, is to be examined.' " Cerniglia [v. Cerniglia]
              655 So. 2d [172] at 174 [(Fla. 3d DCA 1995)] (quoting
              Commercial Trading Co. v. Zero Food Storage, Inc., 199 So.
              2d 109, 112 (Fla. 3d DCA), cert. denied, 204 So. 2d 332
              (Fla. 1967)).

Cerniglia v. Cerniglia, 679 So. 2d 1160, 1164 (Fla. 1996) (some alterations in original);

see also Alderman, 68 So. 3d at 401 (citing Commercial Trading Co., 199 So. 2d at

112).

              In this case, the circuit court erred in its interpretation of the scope of the

Release by focusing unduly on the admittedly broad language of paragraph 3 titled,

"RELEASE OF CLAIMS." The circuit court failed to appreciate that the broad language

of paragraph 3 is constrained and limited by the definitions and recitals contained

elsewhere in the Release. Paragraph 1 of the Release, titled "THE CLAIM," contains

important recitals and critical provisions defining both the "INCIDENT" that is the subject

of the Release and the "DAMAGES" arising out of the "INCIDENT" that the parties

intended to release and to discharge. The Release defines the "INCIDENT" as the

event occurring on or about May 3, 2007, "on Interstate 75 near the intersection of State

Road 200 in Ocala, Marion County, Florida, wherein JAKE BELL, JR. was allegedly

injured and died as the result [of] an automobile accident." Paragraph 1 also contains a

recital of the estate's claims arising out of the "INCIDENT," i.e., that at the time and

place described, U-Haul and related parties "were negligent, vicariously liable or are

otherwise legally responsible for the injuries and death of JAKE BELL, JR." Finally,

paragraph 1 defines the "DAMAGES" that the estate and Mr. Bell's survivors claim to



                                             -8-
have sustained arising out of the "INCIDENT" as "damages allowable under the Florida

Wrongful Death Act."

              As the Florida Supreme Court instructs, we must read the broad language

of the "RELEASE OF CLAIMS" in paragraph 3 in conjunction with the much more

restrictive definitions and recitals contained in paragraph 1 concerning "THE CLAIM."

So read, one must conclude that the parties' intent as reflected in the instrument was to

release only the claims of the estate and the survivors for the wrongful death of Mr. Bell

arising out of the collision on May 3, 2007. The definitions and the recitals in paragraph

1 do not suggest that the parties also intended to cause the release of an entirely

separate contractual duty that U-Haul might then have or become obligated for in the

future to provide a defense to the estate in accordance with the Rental Agreement.

Indeed, when Ms. Butler executed the Release in February 2009, U-Haul could not

have had a contractual duty to provide a defense that was presently enforceable. Ms.

Wakeman and her husband did not file an action against the estate until after the

Release was executed. When Ms. Butler executed the Release, U-Haul's alleged

contractual duty to provide a defense had not even arisen. U-Haul could not be

expected to provide Ms. Butler with a defense for a claim that was yet to be filed.

              In paragraph 1 of the Release, the parties took care to limit the scope of

the Release by defining the "INCIDENT" and the "DAMAGES" that were its subject.

The parties were also careful to include a recital that Ms. Butler's claims arose out of her

claim that U-Haul and the other parties being released "were negligent, vicariously liable

or are otherwise legally responsible for the injuries and death of JAKE BELL, Jr." In

light of the particularity of the definitions and the recitals in paragraph 1, we think that




                                             -9-
the parties would have drafted the Release differently if they had intended to cause the

release of U-Haul's contractual duty to provide a defense for an action or actions that

might be filed in the future. If that had been their intent, then the parties might have

either: (1) defined the incident and the damages that were in their contemplation more

broadly to include claims for contractual damages resulting from any future breach by

U-Haul of the rental agreement, or (2) included a specific provision in paragraph 3

releasing U-Haul from its alleged separate contractual duty to defend. The parties'

failure to adopt either of these alternatives supports the conclusion that the scope of the

Release was limited to damages arising from a claim for the wrongful death of Mr. Bell.

                                    V. CONCLUSION

              The scope of the Release was not broad enough to release U-Haul from

the contractual claims asserted in the underlying action. It follows that the circuit court

erred in granting the summary judgment and in entering a final judgment in favor of U-

Haul. Accordingly, we reverse the order granting the summary judgment and the

resultant final judgment. We remand this case to the circuit court for further

proceedings consistent with this opinion.

              Reversed and remanded for further proceedings.



ALTENBERND and SILBERMAN, JJ., Concur.




                                            - 10 -
