American Mut. Fire Ins. Co. v. Illingworth

• Decision Date: 30 August 1968
• Docket Number: No. 67--481,67--481
• Citation: 213 So.2d 747
• Court: Florida District Court of Appeals
• Parties: The AMERICAN MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Llewellyn D. ILLINGWORTH and Dean Illingworth, Appellees, Eddie J. Ferrentino and Elaine Ferrentino, Appellees.

Page 747

213 So.2d 747

The AMERICAN MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Llewellyn D. ILLINGWORTH and Dean Illingworth, Appellees Eddie J. Ferrentino and Elaine Ferrentino, Appellees.

No. 67--481.

District Court of Appeal of Florida, Second District.

Aug. 30, 1968.

W. J. Burmeister, of Ramseur, Bradham, Lyle, Skipper & Cramer, St. Petersburg, for appellant.

Robert W. Holman, of Hammond & Holman, Pinellas Park, for appellees Illingworth.

Ray Ulmer, Jr., of Roney & Ulmer, St. Petersburg, for appellees Ferrentino.

ALLEN, Judge.

The appellant is appealing two adverse final judgments of the court below from a writ of garnishment by appellees--Illingworth, and a cross-claim by appellees--Ferrentino.

This cause of action arose out of a suit instituted by the appellees--Illingworth, plaintiffs below, against the appellees--Ferrentino, defendants below, as a result of an automobile collision. Mr. Eddie J. Ferrentino was driving the vehicle at the time of the collision with the Illingworth vehicle. The suit went to trial and the jury returned a verdict for $6,372.50 in favor of the Illingworths.

At the time of the accident the Ferrentinos had a contract of insurance with the appellant. This insurance contract contained an endorsement excluding the appellant from any liability incurred while any vehicle covered under the insurance contract was operated by Mr. Eddie J. Ferrentino. Because of this exclusionary endorsement, the appellant refused to defend the suit against the Ferrentinos and to pay the judgment under the limits of the policy.

The appellees--Illingworth, then filed garnishment affidavits and a writ of garnishment against the appellant. The appellees--Ferrentino subsequently filed a cross-claim against the appellant seeking attorney's fees. Hearings were held before the trial court sitting without a jury and the appellees were awarded a judgment in their favor.

Appellees contend that the appellant is estopped to deny coverage under the insurance contract because of appellant's failure to respond to proof of coverage by the filing of the SR--21 form report and to file the exclusionary endorsement form with the office of the insurance commissioner of the State of Florida under Fla.Stat. § 627.01091, F.S.A. These points were argued in the hearings in the court below.

Appellant presents two points on appeal:

1. DID THE EVIDENCE PRESENTED AT THE FINAL HEARING ON SEPTEMBER 11, 1967 SHOW THAT THE GARNISHEE WAS IN ANY WAY ESTOPPED FROM DENYING THE CLAIM OF THE PLAINTIFFS DUE TO THE FACT THAT IT HAD NOT RESPONDED TO THE SR--21 FORM FILED WITH THE INSURANCE COMMISSIONER'S OFFICE, OR WITH FLORIDA STATUTE 627.01091 (F.S.A.)?

2. WAS THE INTERPRETATION PLACED ON FLORIDA STATUTE 627.01091 (F.S.A.) AT THE TIME OF THE HEARING OF SEPTEMBER 11, 1967 ERRONEOUS?

As to the first point on appeal, we look to the order of the trial judge which in part stated:

'1. That subsequent to the accident, and pursuant to Florida Statute 324 (F.S.A.), Defendants filed an SR--21 with the Financial Responsibility Division, State of Florida, on September 24, 1962, certifying that the said defendants were insured at the time of the accident by the garnishee, The American Mutual Fire Insurance Company.

'2. That the Financial Responsibility Division forwarded a copy of said SR--21 to the garnishee for verification of coverage; that previous thereto, Said office had notified the garnishee carrier that if the said carrier did not respond to the SR--21 within 30 days from receipt thereof, coverage relative to the reported accident would be deemed to have been in effect.

'3. That the garnishee failed to respond thereto, and by virtue of its failure to disclaim coverage, is now estopped from denying coverage for the subject accident.' (Emphasis added.)

Since the court below was sitting without a jury, it is the sole trier of fact and its judgment carries the weight of a jury verdict. We have carefully reviewed the record on appeal and find sufficient evidence to support the findings of the trial court. We must therefore answer the first question presented to us in the affirmative in favor of the appellees and adversely to the appellant.

The second question presented to us deals with the interpretation of Fla.Stat. § 627.01091, F.S.A. by the trial court. In its order the trial court found that:

'4. Further, that the garnishee insuror, in the instant proceeding denied liability on the basis of an endorsement attached to the policy which purported to exclude coverage when the subject vehicle was being operated by the defendant, Eddie J. Ferrentino, a co-owner of the vehicle and the co-defendant in this cause.

'5. That Prior to the garnishee's issuing its policy of insurance with attached exclusion to the defendants, and prior to the accident of August 26, 1962, the garnishee had not filed with the Insurance Commissioner of Florida, for his approval, pursuant to Florida Statute 627.01091 (F.S.A.), an exclusionary endorsement form of the same type as attached to the subject policy prior to the use thereof; that said endorsement was not of such unique character as would except it from the provisions of F.S. 627.01091 (F.S.A.) and, therefore, said endorsement is null and void and the garnishee's policy afforded coverage to both defendants.' (Emphasis added.)

All of the parties to this cause agree that no cases have been rendered which construe or pass upon this statute. Our own independent research has failed to reveal any Florida cases directly on point.

Fla.Stat. § 627.01091, F.S.A. states:

'No basic insurance policy or annuity contract form, or application form where written application is required and is to be made a part of the policy or contract, or group certificates issued under master contracts delivered in this state, or Printed rider or endorsement form or form of renewal certificate, shall be delivered or issued for delivery in this state, unless the form has been filed with and approved by the commissioner. This provision shall not apply to surety bonds, or to specially rated inland marine risks, nor to policies, riders, Endorsements, or forms of unique character designed for and used with relation to insurance upon a particular subject (other than as to disability insurance), or which relate to the manner of distribution of benefits or to the reservation of...