Allstate Ins. Co. v. Gordon, 77-2487

• Decision Date: 31 October 1978
• Docket Number: No. 77-2487,77-2487
• Citation: 364 So.2d 44
• Parties: ALLSTATE INSURANCE COMPANY, Appellant, v. Eileen GORDON, Appellee.
• Court: Florida District Court of Appeals

Page 44

364 So.2d 44

ALLSTATE INSURANCE COMPANY, Appellant, v. Eileen GORDON, Appellee.

No. 77-2487.

District Court of Appeal of Florida, Third District.

Oct. 31, 1978.

Rehearing Denied Dec. 4, 1978.

McCormick, Bedford & Backmeyer and Thomas E. Backmeyer, Miami, for appellant.

Walton, Lantaff, Schroeder & Carson and N. James Turner, Miami, for appellee.

Before PEARSON, HENDRY and HUBBART, ^* JJ.

PEARSON, Judge.

The defendant, Allstate Insurance Company, was sued by the appellee policyholder, Eileen Gordon, upon a homeowner's insurance policy which provided special theft coverage for plaintiff's jewelry. After the presentation of plaintiff's case, both the defendant and the plaintiff moved for a directed verdict. The question presented at this time, on this motion, was whether the plaintiff had proved a prima facie case for recovery under the policy of insurance. The plaintiff, of course, was entitled to all reasonable inferences from the evidence presented. See Chowning v. Pierce, 174 So.2d 42 (Fla.3d DCA 1965). The trial court denied each motion and submitted the case to the jury. The jury returned a verdict for the plaintiff and the insurance company appeals urging as the single point on appeal that the trial court erred in submitting to the jury the issue of whether or not the plaintiff was excluded from coverage based on the facts in the record. The provision of the policy upon which the insurance company claims a right for a directed verdict is an exclusion to the general theft coverage:

"This policy does not apply to loss away from the described premises of:

(1) property while in any dwelling or premises thereof, owned, rented or occupied by an Insured, except while an Insured is temporarily residing therein;"

The declarations of the policy provided:

During the period of time around the date of the theft, the home located at 8750 North Miami Avenue and owned by the plaintiff was permanently occupied by the plaintiff's mother and invalid sister. The plaintiff and another sister, Nell Glanza, shared the obligation of caring for these two close relatives. The plaintiff and her sister had an arrangement whereby one of the two of them would live at 8750 North Miami Avenue with their mother and sister at all times. The procedure in effect at the time of the theft was that the plaintiff would reside at the 8750 North Miami Avenue address three consecutive days one week and four consecutive days the following week. On these days that she was not scheduled to be there, her sister was; so that one of the two of them was always there. During the time that the plaintiff was taking care of her mother and sister, she spent the night with them so that, again, either the plaintiff or her sister was at 8750 North Miami Avenue at night as well as during the day.

When the plaintiff was not caring for her mother and sister, she lived alone at the apartment at 5700 Collins Avenue, the location described on the Allstate policy.

The North Miami Avenue residence was robbed on Friday, October 15, 1976, a day that the plaintiff's sister, Nell Glanza, was residing at 8750 North Miami Avenue with the plaintiff's mother and sister. The plaintiff was to recommence her three or four day station on Sunday, two days after the theft. The plaintiff could not recall whether the week of the theft was a week she spent four days at the North Miami Avenue home or only three. The plaintiff had turned over to her sister the duty of caring for their relatives on either Thursday, the day before the theft or Wednesday, two days before the theft. The plaintiff's sister had slept at 8750 North Miami Avenue either the night before the theft or the two nights before the theft. The plaintiff had, therefore, slept at the...