American Universal Ins. Co. v. Stotsberry, 59-179

• Decision Date: 10 December 1959
• Docket Number: No. 59-179,59-179
• Citation: 116 So.2d 482
• Parties: AMERICAN UNIVERSAL INSURANCE COMPANY, a Rhode Island corporation, Appellant, v. Linda Moore STOTSBERRY, Appellee.
• Court: Florida District Court of Appeals

Page 482

116 So.2d 482

AMERICAN UNIVERSAL INSURANCE COMPANY, a Rhode Island corporation, Appellant, v. Linda Moore STOTSBERRY, Appellee.

No. 59-179.

District Court of Appeal of Florida, Third District.

Dec. 10, 1959.

Morehead, Forrest, Gotthardt & Greenberg, Miami, for appellant.

Nichols, Gaither, Green, Frates & Beckham, and Sam Daniels, Miami, for appellee.

CARROLL, CHAS., Judge.

This appeal is from a summary judgment which was entered against the garnishee, in a garnishment proceeding in the circuit court in Dade County.

The appellee Linda Moore Stotsberry previously had recovered a judgment for $12,500 plus certain costs in an action brought by her against one John Manuel Lorenzo, for damages for personal injuries she received while riding as a passenger in an automobile involved in a collision with one driven by Lorenzo. After judgment a writ of garnishment was issued against American Indemnity Insurance Company. The garnishee answered, admitting that it had issued a liability policy to Lorenzo in the principal amount of $10,000, but denying any indebtedness thereunder, claiming the insured had violated the terms of the policy. ¹

The question raised by the appellant, and the determinative one here, is whether a genuine issue was presented, bearing on the question of liability under the automobile liability insurance policy.

On the plaintiff's motion for summary judgment, the court had before it the record of the action for personal injuries, the pleadings in the garnishment proceedings including the sworn answer of the garnishee, and certain affidavits filed in support of and in opposition to the motion.

The garnishee contended it was relieved of liability because the insured had breached provisions of the policy, ² by failing to forward the suit papers to the insurer, and by failing to co-operate as required for the defense of the action. No genuine issue was raised as to the first of those claimed violations of the policy and it was expressly abandoned by appellant in the reply brief.

When the tort action was filed, more than a year after the accident, Lorenzo had departed the state. His wife had remained, but did not know his whereabouts. Service of process was made on the absent Lorenzo by serving his wife. Lorenzo was not shown to have known of the suit in time to have sent the insurer the suit papers to avoid a default or to enable defense of the action. However, his wife did give the insurer notice.

The appellant insurer relied on the contention that its liability was dissipated by Lorenzo's failure to co-operate, through absenting himself, knowing of the claim against him, and thus becoming unavailable, or unwilling to appear at the trial. Against that contention, the appellee argued that Lorenzo was excused from the requirement to co-operate, saying the insurer had disclaimed liability, without cause, on another ground, and citing in support of that position Indemnity Ins. Co. of North America v. Forrest, 9 Cir., 1930, 44 F.2d 465, 466; American Automobile Insurance Co. v. English, 266 Ala. 80, 94, So.2d 397, 402; Hunter v. Hollingsworth, 165 Va. 583, 183 S.E. 508, 509-510. The appellant insurer then replied that appellee's assumption that the insurer had denied liability for Lorenzo's failure to deliver the suit papers was not borne out by the record, pointing out that the letter sent by the insurer to Lorenzo did not deny liability but asserted that his failure to forward the suit papers was a breach sufficient upon which to deny liability, reserved the right to do so, indicated an intent to defend the suit, and called on the absent Lorenzo for co-operation.

Thus the matter submitted by the insurer in opposition to the motion for summary judgment disclosed that the insured, during the interval between the accident and the filing of the law suit, knew of the plaintiff's claim against him through contact with the adjuster for the insurer; that he gave a statement...