Crawford v. DiMicco

• Decision Date: 31 December 1968
• Docket Number: FIDELITY-PHENIX,Nos. 1264,1265,s. 1264
• Citation: 216 So.2d 769
• Parties: H. Albert CRAWFORD and Walter S. Buckingham d/b/a Buckingham-Wheeler Agency and Fidelity-Phenix Insurance Corporation, Appellants, v. Charles R. DIMICCO et al., Appellees.INSURANCE CORPORATION, Appellant, v. Charles R. DiMICCO et al., Appellees.
• Court: Florida District Court of Appeals

Page 769

216 So.2d 769

35 A.L.R.3d 899

H. Albert CRAWFORD and Walter S. Buckingham d/b/a Buckingham-Wheeler Agency and Fidelity-Phenix Insurance Corporation, Appellants, v. Charles R. DIMICCO et al., Appellees.

FIDELITY-PHENIX INSURANCE CORPORATION, Appellant, v. Charles R. DiMICCO et al., Appellees.

Nos. 1264, 1265.

District Court of Appeal of Florida, Fourth District.

Dec. 31, 1968.

John R. Gould, of Gould, Cooksey & Fennell, Vero Beach, for appellants, H. Albert Crawford and Walter S. Buckingham.

G. Morton Good, of Smathers & Thompson, Miami, for appellant, Fidelity-Phenix Ins. Corp.

Robert Jackson, of Jackson & Clem, Vero Beach, for appellees, DiMicco.

CROSS, Judge.

Appellants-defendants, H. Albert Crawford and Walter S. Buckingham, d/b/a Buckingham-Wheeler Agency, and Fidelity-Phenix Insurance Corporation, appeal from a final judgment entered pursuant to a jury verdict in favor of the appellee-plaintiff, Charles R. DiMicco, in an action of negligence against Buckingham-Wheeler Agency for failure to obtain insurance coverage, and against Fidelity-Phenix Insurance Corporation on a binder of insurance.

The cross-plaintiff, Fidelity-Phenix Insurance Corporation, also appeals a final judgment pursuant to the jury's verdict in favor of the cross-defendant, Buckingham-Wheeler Agency, whereby the cross-plaintiff sought indemnity from the crossdefendant for any loss the cross-plaintiff sustained as a result of the plaintiff's recovery against cross-plaintiff. These cases have been consolidated on appeal.

On September 10, 1963, an employee of Buckingham-Wheeler Agency, met with the plaintiff at the plaintiff's home to discuss the placing of insurance on the plaintiff's boat, a 1950 20-foot Chris Craft Cruiser named 'Honey.' After the discussion the agency's employee advised the plaintiff that he was then and there binding a $5,000-all risks insurance coverage on the boat and that the plaintiff could consider such insurance coverage bound. It appears that the agency's employee bound such coverage, notwithstanding the fact that he had prior knowledge that the insurer, Fidelity-Phenix Insurance Corporation, would not insure a boat having a value of $5,000 or greater or a boat that was in excess of three years of age without a condition survey.

Some weeks after the meeting between the plaintiff and the agency's employee, the boat was damaged in a storm and finally sank. Plaintiff sought damages for this loss.

Fidelity-Phenix Insurance Corporation denied coverage had ever existed. Buckingham-Wheeler Agency admitted coverage had been bound, but contended the coverage had been cancelled prior to the loss by its employee telephoning the plaintiff and advising him that Fidelity-Phenix Insurance Corporation had declined to insure the risk. Plaintiff denies receiving this telephone call.

Plaintiff sued Buckingham-Wheeler Agency on the theory that Buckingham-Wheeler Agency, a general insurance agency, had been employed to place physical damage insurance on the boat but had negligently failed to do so; and sued Fidelity-Phenix Insurance Corporation on a binder of coverage of insurance on the boat.

Fidelity-Phenix Insurance Corporation answered and filed a cross-claim. The answer generally denied the material allegations of plaintiff's complaint, and further pleaded the affirmative defense that the plaintiff fraudulently concealed material and relevant facts when he applied for the insurance.

The Agency filed its answer, also generally denying the material allegations of the plaintiff's complaint and further pleaded the affirmative defense that although the Agency had placed the insurance coverage on the boat, as requested by the plaintiff, such insurance coverage had been cancelled before the loss occurred, and that the plaintiff fraudulently concealed material and relevant facts when he applied for the insurance.

The cross-claim of Fidelity-Phenix Insurance Corporation against Buckingham-Wheeler Agency was based on the theory of indemnity for loss arising out of a principal-agent relationship, since it was alleged that the agent negligently failed to follow the principal's instructions to cancel the insurance coverage, and that the agent exceeded its authority in binding the insurance coverage in the first instance.

The Agency filed its reply to the cross-claim, generally denying the material allegations and pleading the affirmative defenses that it had implied authority to bind the insurance coverage, and that it followed the principal's instructions to cancel the insurance coverage.

The case thereafter came on for trial before a jury. The jury returned two verdicts; one in favor of the plaintiff against both Buckingham-Wheeler Agency and the insurer, Fidelity-Phenix Insurance Corporation for $5,000, and another verdict in favor of the cross-defendant Buckingham-Wheeler Agency, and against the insurer-cross-plaintiff, Fidelity-Phenix Insurance Corporation.

In due course, after disposal of post-trial motions filed by Buckingham-Wheeler and Fidelity-Phenix, the trial court entered final judgment for the plaintiff, Charles R. DiMicco, against the defendants, Buckingham-Wheeler Agency and Fidelity-Phenix Insurance Corporation. Final judgment was also entered for the cross-defendant, Buckingham-Wheeler Agency, against the cross-plaintiff, Fidelity-Phenix Insurance Corporation.

Both Buckingham-Wheeler Agency and Fidelity-Phenix Insurance Corporation appeal the judgment entered in favor of the plaintiff, Charles R. DiMicco; and Fidelity-Phenix Insurance Corporation also appeals the judgment entered in favor of Buckingham-Wheeler Agency against it.

In the appeal by Buckingham-Wheeler Agency and Fidelity-Phenix Insurance Corporation against the plaintiff, DiMicco, they attack the entry of a judgment entered for DiMicco as erroneous on the basis that the judgment was entered upon an inconsistent verdict.

Where the findings of a jury's verdict in two or more respects are findings with respect to a definite fact material to the judgment such that both cannot be true and therefore stand at the same time, they are in fatal conflict. In such circumstances, contradictory findings mutually destroy each other and result in no valid verdict, and a trial court's judgment based thereupon is erroneous.

In the case sub judice the plaintiff initiated this cause of action against the defendant, Buckingham-Wheeler Agency, on the theory that the agency was liable for negligently failing to place insurance coverage on the boat. The plaintiff proceeded against Fidelity-Phenix Insurance Corporation on the basis that the insurer was liable for insurance coverage placed on the boat by the Buckingham-Wheeler Agency. The jury brought in a verdict in favor of the plaintiff against the agency and the insurer. Inherent in the verdict against the agency is a finding that there was no insurance coverage. Inherent in the verdict against the insurer is a finding that there was insurance coverage. Obviously, the verdict is inconsistent and self-contradictory.

However, we glean from the record that there was no objection made by any of the parties to the various forms of the verdict that the jury might render. In fact, after the jury retired, and defendant, Fidelity-Phenix Insurance Corporation, asked that an additional verdict be given to the jury. All counsel agreed and this...