American Fire & Cas. Co. v. Vliet
| Decision Date | 25 November 1941 |
| Citation | 4 So.2d 862,148 Fla. 568 |
| Parties | AMERICAN FIRE & CASUALTY CO. v. VLIET. |
| Court | Florida Supreme Court |
Rehearing Denied Dec. 20, 1941.
Leland B. Featherstone, of Miami, for plaintiff in error.
McKay Dixon & DeJarnette, Roger Edward Davis, and Ray M Watson, all of Miami, for defendant in error.
In December, 1930 appellant through its predecessor issued its automobile indemnity policy in favor of J. R. Battle and his wife of Miami, Florida. The policy agreed to indemnify the Battles against loss resulting directly from the ownership or use of any automobile described therein on account of damages imposed by law upon either of them. The policy also provided that the assured shall without compensation aid the insurer in securing information, defending any suit or suits attending trials, prosecuting appeals, and that failure to render such service shall void the policy.
In June, 1931, one of the cars covered by the policy while being driven by Mrs. Battle was involved in an accident with Clarence L. Vliet, who recovered a judgment against the Battles for $7,500. Vliet accordingly garnished the plaintiff in error, wherein he secured a verdict and judgment against it. Motion for new trial was denied and writ of error was prosecuted.
Numerous questions are posed, but the vital one is whether or not the policy was voided because the Battles failed to attend the garnishment trial and aid the garnishee in securing information and in giving such other assistance as the contract of insurance contemplates.
The record discloses that the Battles were living in Atlanta at the time of the trial, some 750 miles from Miami, where it took place. It is also shown that Mr. Battle had gone insane and that Mrs. Battle proffered her services to go to Miami and render every assistance possible if the garnishee would guarantee her expenses going and returning. It is shown that she rendered every assistance possible up to the time she left Miami.
The rule is that to constitute the breach of such a policy the lack of cooperation must be material and the insurance company must show that it was substantially prejudiced in the particular case by the failure to cooperate. The fact that the assured moved out of the jurisdiction of the court without show of evasion and did not refuse to testify or to aid insurer otherwise but merely failed to come to court at his own expense does not void the policy. 72 A.L.R....
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