Occidental Fire & Cas. Co. of North Carolina v. Stevenson, 78-1526
| Decision Date | 09 May 1979 |
| Docket Number | No. 78-1526,78-1526 |
| Citation | 370 So.2d 1211 |
| Parties | OCCIDENTAL FIRE & CASUALTY COMPANY OF NORTH CAROLINA, Appellant, v. Donald L. STEVENSON d/b/a Stevenson Insurance, Appellee. |
| Court | Florida District Court of Appeals |
Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellant.
Donald G. Jacobsen of Lane, Massey, Trohn, Clarke, Bertrand & Smith, P. A., Lakeland, for appellee.
This is an appeal from a final judgment determining that appellee (Stevenson) is entitled to recover attorney's fees from appellant (Occidental) on the basis of a cross-claim for indemnity filed by Stevenson against Occidental.
On May 9, 1976, a Mack truck was involved in an automobile accident. Prior to March 25, 1976, this truck had been owned by Peace River Valley Trucking, Inc., a corporation in which James A. Hughey had an interest. Peace River Valley Trucking, Inc. sold the truck to Thomas W. Harris on March 25, 1976, and Harris, in turn, leased the truck to Hughey. Prior to March 25, 1976, Occidental had issued a policy of insurance on this truck with Hughey as the named insured. Hughey had obtained the insurance policy through Stevenson's insurance agency. This insurance continued in effect through the date of the accident.
After the accident Harris made a claim against Occidental for damages to the truck. Occidental claimed that it had never been informed of the fact that the truck was now owned by Mr. Harris and leased to Mr. Hughey and denied coverage because Hughey did not own the truck as stated in the policy when the accident occurred. A provision in the policy provided that the insurance agreement would not apply if the vehicle became subject to a bailment not specifically declared in the policy.
Harris then brought suit against Hughey, Occidental and Stevenson. He alleged that Hughey had agreed to provide insurance for the truck. Harris further alleged that Hughey had told him that he had advised Occidental through Stevenson of the transfer of the truck to Harris and the lease back arrangement to Hughey. He alleged alternatively that Stevenson was either an independent insurance broker or that he was Occidental's general agent. Harris contended that he was entitled to recover the damages to his truck from one or more of the defendants, depending upon the agency relationship between Stevenson and Occidental and upon whether Hughey had notified Stevenson and whether Stevenson had notified Occidental of the change in ownership and the lease back arrangement.
The defendants filed several cross-claims, but the only one relevant to this appeal is Stevenson's cross-claim for indemnity against Occidental. The case was settled prior to trial, and Harris filed a voluntary dismissal with prejudice. Stevenson then requested attorney's fees from Occidental under his cross-claim for indemnity. At the hearing no testimony was taken, but the parties stipulated that $1,615 would be a reasonable attorney's fee, if one were awarded. The court entered judgment for Stevenson against Occidental in this amount.
Occidental first points to the lack of a contract upon which an attorney's fee could have been awarded to Stevenson. Likewise, no statutory basis existed for such an award because Stevenson was not an insured under the policy. While admitting that an indemnitee is entitled to recover as part of his damages attorney's fees he has been compelled to pay in a suit involving the matter against which he is indemnified, 1 Occidental argues that there were no set of circumstances in this case under which Stevenson could legally obtain indemnity from Occidental.
There were essentially five outcomes involving a recovery by Harris which would have been possible within this lawsuit:
(1) Hughey failed to notify Stevenson concerning the change in conditions involving the truck. Hughey would be liable to Harris providing the court determined that a contract existed whereby Hughey promised to provide insurance for Harris. Stevenson and Occidental would be exonerated.
(2) Hughey did notify Stevenson, but Stevenson, as an independent insurance broker, failed to notify Occidental. Stevenson would be liable to Harris, but Hughey and Occidental would be exonerated.
(3) Hughey notified Stevenson, but Stevenson failed to notify Occidental. Nevertheless, Stevenson held such an agency relationship with Occidental that he had authority to bind the coverage. Occidental and perhaps Stevenson would...
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...the agent for his expenses, including his attorney's fee. Gooding, 565 S.W.2d at 423. See also Occcidental Fire & Cas. Co. of North Carolina v. Stevenson, 370 So.2d 1211 (Fla.Dist.Ct.App.1979), and 3 C.J.S. Agency Sec. 322 In Pittman v. Home Indemnity Co., 411 So.2d 87 (Miss.1982), agency i......
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