Allstate Ins. Co. v. Chastain

• Decision Date: 29 June 1971
• Docket Number: No. 70--921,70--921
• Parties: ALLSTATE INSURANCE COMPANY, Appellant, v. Josephine CHASTAIN, individually and as administratrix of the Estate of William Wilbur Chastain, deceased, Appellee.
• Court: Florida District Court of Appeals

Page 354

251 So.2d 354

ALLSTATE INSURANCE COMPANY, Appellant, v. Josephine CHASTAIN, individually and as administratrix of the Estate of William Wilbur Chastain, deceased, Appellee.

No. 70--921.

District Court of Appeal of Florida, Third District.

June 29, 1971.

Rehearing Denied Sept. 2, 1971.

Weissenborn, Burr & Hyman, Miami, for appellant.

Fink & Syna, Miami, Judith A. Brechner and George Schwartz, Miami Beach, for appellee.

Before PEARSON, C.J., and CHARLES CARROLL and BARKDULL, JJ.

BARKDULL, Judge.

The appellee and her husband were riding in an automobile belonging to a third party, insured by Allstate. This automobile was involved in an accident with an automobile operated by an insured driver but owned by an uninsured motorist. Thereafter the appellee's husband died. The appellee then instituted, on behalf of herself and her deceased husband, a tort action against the owner (who was uninsured) an against the operator (who was insured) of the other vehicle in the accident. During the pendency of this cause the carrier for the operator settled. The appellee recovered a judgment of $70,000.00 against the owner of the other vehicle (less the settlement of $19,500.00 agreed to between the appellee and the carrier representing the operator). Subsequent to the rendition of the judgment, the appellee instituted the instant action against Allstate, the insurer of the vehicle in which she was riding but which was not owned by either her or her husband, contending she had a right to recover under the uninsured motorists feature thereof, which reads as follows:

Coverage G--Uninsured Motorists (Damages for Bodily Injury): To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purpose of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.'

"uninsured automobile' includes a trailer of any type and means:

'(a) an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder or * * *'

In this second proceeding, the trial court ultimately entered a judgment in favor of the appellee-insured against her insurance carrier (the appellant) in the face amount of the policy, to wit: $20,000.00; awarded her interest from the date liability was determined and attorney's fees. This appeal ensued, the appellant contending that the trial court erred, first, in holding it liable under the terms of its policy and, second, that if it was liable that it was entitled to a set-off of the $19,500.00 settlement pursuant to § 768.041(2), Fla.Stat., F.S.A. The appellee has cross-appealed, urging error in the award of interest, denial of costs of an expert witness as to attorney's fees, and that the trial judge awarded insufficient attorney's fees. We affirm.

The uninsured provisions providing motorists coverage, as quoted above, were ambiguous. The appellant contends that they should be read as follows:

'* * * that since the driver of the vehicle had liability insurance coverage in an amount required under Florida law, that there was liability insurance Applicable at the time of the accident even though the Plaintiff alleges that the owner of the vehicle was not insured. * * *' (emphasis supplied)

and the appellee contends that they should be read as follows:

'* * * If there is any person legally responsible for the use (e.g. the owner) who does not have a policy, then the vehicle is uninsured; * * *'

It is apparent that the coverage provision is ambiguous and, therefore, the company having prepared the policy the ambiguity should be resolved against the carrier and in favor of coverage. Hartnett v. Southern Insurance Company, Fla.1965, 181 So.2d 524; Financial Fire & Casualty Company v. Callaham, Fla.App.1967, 199 So.2d 529; Quick v. National Indemnity Company, Fla.App.1970, 231 So.2d 22. The appellant places great stress on a recent opinion of the First District Court of Appeal (Gordon v. Phoenix Insurance Company, Fla.App.1970, 242 So.2d 485), contending it should be controlling in the instant case. We do not think that this opinion is controlling for several reasons, among which is that a satisfaction was given to the operator in the Gordon case which would enure to the benefit of the owner, who would only be vicariously liable. Leo Jay Rosen Associates, Inc. v. Schultz, Fla.App.1963, 148 So.2d 293; Weaver v. Stone, Fla.App.1968, 212 So.2d 80; Movielab, Inc. v. Davis, Fla.App.1969, 217 So.2d 890. Second, the case relied on by the court in its opinion, United States Fidelity & Guaranty Company v. Byrum, 206 Va. 815, 146 S.E.2d 246, arose in a state where an automobile is not considered a dangerous instrument and, therefore, there was no vicarious liability on the owner for the acts of the operator. Cohen v. Meador, 119 Va. 429, 89 S.E. 876. Neither is the case of Macaluso v. Watson, La.App.1966, 188...