American Employers' Ins. Co. v. Taylor

• Decision Date: 08 October 1985
• Docket Number: Nos. BC-154,AZ-482,s. BC-154
• Citation: 476 So.2d 281,10 Fla. L. Weekly 2307
• Parties: 10 Fla. L. Weekly 2307 AMERICAN EMPLOYERS' INSURANCE COMPANY, Appellant/Cross-Appellee, v. Jack TAYLOR, d/b/a Taylor's Printing and Office Supply and Jack Taylor, individually, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 281

476 So.2d 281

10 Fla. L. Weekly 2307

AMERICAN EMPLOYERS' INSURANCE COMPANY, Appellant/Cross-Appellee, v. Jack TAYLOR, d/b/a Taylor's Printing and Office Supply and Jack Taylor, individually, Appellees/Cross-Appellants.

Nos. BC-154, AZ-482.

District Court of Appeal of Florida First District.

Oct. 8, 1985.

Paul B. Butler, Jr. and Robert V. Potter, Jr. of Butler, Burnette, Wood & Freemon, Tampa, for appellant/cross-appellee.

Richard B. Davis, Jasper, and John Berry, St. Petersburg, for appellees/cross-appellants.

Richard H. Wilson and Steven E. Waggoner of Wilson & Sawyer, P.A., Tampa, for amicus curiae.

MILLS, Judge.

American Employers' Insurance Company (AE) appeals from an order granting a new trial to Taylor. Taylor appeals from the entry of a directed verdict in favor of AE on his claim against it for slander. We affirm the directed verdict but reverse the granting of a new trial.

Taylor sued AE for tortious breach of contract after it refused to pay an insurance claim made when his business was destroyed by fire. AE contended that Taylor had himself set the fire and/or that he had violated the policy's "concealment and fraud" clause, which provides: "This policy is void if any insured has intentionally concealed or misrepresented any material fact or circumstance relating to this insurance." AE alleged that, during its investigation of the claim, Taylor had misrepresented his whereabouts prior to the fire and the true condition of his business.

At the conclusion of the trial, the jury received the following instruction on AE's concealment and fraud defense:

To prevail in its defense of concealment and misrepresentation, the defendant insurance company must show, by the greater weight of the evidence that the insured knowingly and willfully made a false answer or concealment concerning some matter of fact as to which he knew or was apprised was material to the inquiry being made by the insurance company.

Taylor made no objection to this instruction.

When the jury retired, it received a verdict form which propounded the following interrogatories: (1) Did Taylor intentionally burn the insured property or intentionally cause it to be burned, and (2) Did he knowingly and intentionally misrepresent or conceal material information that he was required to disclose for the purposes of having defendant pay his claim? Taylor made no objection to the form.

During its deliberations, the jury sent a question to the court inquiring whether the first interrogatory must be unanimously answered prior to the second. After consultation with counsel, the court answered that either defense would defeat Taylor's claim and therefore that if a "yes" answer was given to "either one of those claims, either one or two, either one of those defenses, then you have found for the insurance company and you would go no further." Both counsel agreed to this resolution of the jury's question. The jury reached a verdict in favor of AE. It did not answer the first interrogatory, but answered "yes" to the second. The jury did not consider Taylor's claim against AE for slander, as the court had directed a verdict in AE's favor on that issue earlier in the proceeding.

Taylor moved for a new trial, alleging for the first time that the concealment and fraud defense had been improperly employed to void his policy, because the alleged misrepresentations occurred after a loss. In making this argument, Taylor relied on Wendel v. State Farm Fire and Casualty Co., 435 So.2d 284 (Fla. 5th DCA 1983), rev. den. 447 So.2d 888 (Fla.1984), which held that, under an identical concealment and fraud clause, a policy could only be voided when the fraud occurred in the application for insurance. Taylor alleged as well that the verdict was defective because the jury failed to answer the first interrogatory, indicating confusion about the evidence.

The trial court granted the motion. It found that the verdict was inconclusive, speculative and unclear and that AE's concealment and fraud defense was only applicable when the alleged fraud occurred in the policy application, on which no evidence had been presented. The court therefore...