            Case: 12-15790   Date Filed: 06/24/2013   Page: 1 of 5


                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15790
                         Non-Argument Calendar
                       ________________________

                  D. C. Docket No. 9:12-cv-80260-DMM


CALOOSA PROPERTY OWNERS ASSOCIATION, INC.,

                                                           Plaintiff-Appellant,

                                   versus

CAPITOL SPECIALTY INSURANCE CORPORATION,
a foreign corporation,

                                                          Defendant-Appellee.




                      _________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (June 24, 2013)


Before TJOFLAT, PRYOR and BLACK, Circuit Judges.
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PER CURIAM:


       Caloosa Property Owners Association (Caloosa) appeals the district court’s

grant of summary judgment in favor of Capitol Specialty Insurance Corporation

(Capitol), in Caloosa’s declaratory judgment action seeking coverage for a third

party premises liability suit. On appeal, Caloosa contends the district court erred

in (1) concluding the “horse and horse drawn units” exclusion unambiguously

precluded coverage for the suit, and (2) declining to reform the policy. 1 After

review, we affirm the district court’s grant of summary judgment in favor of

Capitol.

Background

       Capitol issued liability insurance to Caloosa for the policy period of

December 30, 2008, through December 30, 2009 (Policy). Under the Policy,

Capitol agreed to defend and indemnify Caloosa for claims arising from personal

injuries that occurred as a result of Caloosa’s alleged negligence or other wrongful

conduct. The Policy contained several exclusions, including a “horse and horse

drawn units” exclusion. That exclusion states, in pertinent part, that the “insurance




       1
         Caloosa also contends the “horse and horse drawn units” exclusion was outside the
terms of the contract and impermissible because it was not referred to in the quote or insurance
binder. The district court declined to consider this claim because it was not pled in the
complaint; rather, Caloosa only asked for declaratory relief and reformation based on the Policy
itself. We likewise decline to consider this unpled claim.
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does not apply to any bodily injury or property damage arising out of the use or

operation of any horses or horse-drawn apparatus.”

      On or about August 29, 2009, John Freeland was injured after he fell off a

horse inside a riding ring in a Caloosa common area. Freeland subsequently sued

Caloosa, alleging several instances of negligence related to the design and

maintenance of the riding ring. Caloosa tendered the defense and indemnification

of the lawsuit to Capitol, but Capitol asserted that the claims were excluded from

coverage under the “horse and horse drawn units” exclusion. Thus, Capitol

refused to defend and indemnify Caloosa in the lawsuit. Caloosa subsequently

filed this action seeking declaratory relief and reformation of the Policy.

Standard of Review

      We review a district court’s grant of summary judgment de novo, viewing

“all evidence and reasonable factual inferences drawn therefrom in the light most

favorable” to the nonmoving party. Turnes v. AmSouth Bank, NA, 36 F.3d 1057,

1060 (11th Cir. 1994). “Summary judgment is appropriate where there exists no

genuine issue of material fact and the movant is entitled to judgment as a matter of

law.” Id.

“Horse or horse drawn units” exclusion

      Caloosa contends the “arising out of the use or operation of any horses or

horse-drawn apparatus” language is ambiguous and must be construed in favor of


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coverage.2 Caloosa claims the injury did not “arise out of the ‘use or operation

of’” a horse, but rather, arose out of the defective riding ring, “which caused injury

to a person who happened to be on a horse.” Caloosa also contends Freeland was

injured by “riding” a horse, rather than “using” a horse.

       Under Florida law, when construing an insurance contract to determine

whether an exclusion applies, a court must interpret the policy according to its

“plain meaning, with any ambiguities construed against the insurer and in favor of

coverage.” Amerisure Mut. Ins. Co. v. Auchter Co., 673 F.3d 1294, 1301 (11th

Cir. 2012) (internal quotation marks omitted). The term “arising out of” is not

ambiguous, and has been construed broadly by Florida courts to mean “originating

from,” “incident to,” or “having a connection with.” Taurus Holdings, Inc. v. U.S.

Fidelity and Guar. Co., 913 So. 2d 528, 539 (Fla. 2005).

       The district court did not err in concluding the “horse and horse drawn units”

exclusion unambiguously precluded coverage of Freeman’s suit. The language

plainly excludes coverage for accidents “arising out of the use or operation of any

horse.” Here, Freeman’s lawsuit was based on injuries he sustained after being

thrown off a horse. Thus, his injury was “incident to” his “use” of a horse.

Caloosa’s argument that Freeman was not “using” a horse, but rather “riding” one

       2
           Caloosa repeatedly references a “rider of saddle animals” exclusion in an attempt to
create a latent ambiguity. This exclusion was not included in the Policy and does not create an
ambiguity in the clear and unambiguous language of the “horse and horse drawn units”
exclusion.
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is meritless. Just as people “use” cars by driving them or riding in them, Freeman

was “using” the horse by riding it. See, e.g., Underwriters at Lloyd’s of London v.

McCaul, 949 So. 2d 1137, 1138-39 (Fla. 3d DCA 2007) (finding that a passenger

riding in a vehicle fell within a policy exclusion for “use” of a car). Accordingly,

the district court did not err in concluding the plain language of the Policy excused

Capitol from indemnifying and defending Caloosa in the Freeman lawsuit.

Reformation of the Policy

      Alternatively, Caloosa asks us to reform the Policy based on a mutual

mistake, or a unilateral mistake coupled with inequitable conduct. However,

Caloosa’s sole allegation of mutual mistake is “LANDMARK’s failure to procure

coverage for the type of claims such as those set forth in the Underlying Lawsuit,

and CALOOSA’s failure to obtain that coverage.” Because Landmark was

Caloosa’s agent, Caloosa’s allegations only establish that, at most, Caloosa made a

mistake in dealing with its own agent. Moreover, Caloosa never alleged a

unilateral mistake by Capitol, nor has Caloosa identified any evidence of

inequitable conduct on Capitol’s part. Accordingly, the district court did not err in

granting summary judgment in favor of Capitol on Caloosa’s reformation claim.

      AFFIRMED.




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