Auto-Owners Ins. Co. v. Green
| Decision Date | 20 February 1969 |
| Docket Number | AUTO-OWNERS,No. K--55,K--55 |
| Citation | 220 So.2d 29 |
| Parties | INSURANCE COMPANY, Appellant, v. H. Fred GREEN, Appellee. |
| Court | Florida District Court of Appeals |
Dawson, Galant, Maddox, Boyer, Sulik & Nichols, Jacksonville, for appellant.
Jackson Bryan, Palatka, for appellee.
The defendant, Auto-Owners Insurance Company, has appealed from a jury verdict awarding the insured, Green, $3,500.00 plus costs and interest for damages to his automobile due to theft and collision.
The question on appeal is whether the insured is entitled to recover more than the estimate of repair.
On June 5, 1966, Green parked his six-months-old 1966 Lincoln Continental (cost price $7,200.00) in front of his business. An hour later he learned it had been stolen and driven into a telephone pole which broke and fell across the top of the car. It was insured by Appellant Insurance Company whose adjuster, Evans, had the damage appraised by Piersol Auto Appraisal. The appraisal indicated that the car could be repaired for $2,353.11 which included, among other things, straightening the frame, but it left as an open item any damage done to the front end suspension and the transmission, The extent of which damage could not be determined until the car was put in driving condition. The policy provided:
'The Company shall not be liable beyond the actual cash value of the property insured at the time any loss or damage occurs, and such loss or damage shall be ascertained accordingly with proper deduction or depreciation however caused * * * and shall in no event exceed what it would then cost to repair or replace the property, or such parts thereof as may be damaged with other of like kind and quality. * * *
'The Company may at its option, either repair or replace any part or all of the property upon which loss is claimed or pay to the assured in money the full amount of such loss as determined in accordance with the provisions of this policy, subject however, to such deduction, if any, as may be applicable thereto. * * *'
The Company elected to repair the car and secured an agreement from North Florida Motors (from whom the car was purchased originally) to repair same for the amount of the appraisal. The insured was agreeable to this provided North Florida Motors guaranteed that the car would be in the same condition and have the same value as before the accident. However, North Florida Motors refused to make this guarantee, and the insured refused to have the car repaired.
The insured informed the adjuster that he was to leave ten days after the accident on a thirteen-week trip in the west. He was carrying a TV film to promote St. Augustine and his own businesses and had appointments with various TV stations. This trip could not be postponed. As a result, his negotiations with the insurance adjuster covered only a short period of time--seven or eight days. The adjuster finally offered Green $2,353.11 and requested that he sign a release. Green refused. The value of the car at the time of the accident was $6,000.00, and the highest bid Green had received for the salvage was $1,950.00. So the day before he was to leave on his business trip, Green sold the wrecked vehicle and bought a new car.
Green later brought this action to recover for his damages. In addition to the above evidence, Green had four auto repairmen testify. The substance of their testimony was that the car had sustained a major wreck; that it could be rebuilt or repaired but it would never be the same car as before the accident. One witness testified that it was wrecked too badly to repair it for a customer. Of the repairmen who testified one purchased it from Green for $1,950.00; he sold it for $2,500.00 as parts to the second witness, who purchased it without discovering that the drive shaft was bent;...
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...car in question. There is a split of authority in Florida courts as to whether diminished value is covered. Auto-Owners Insurance Co. v. Green, 220 So.2d 29 (Fla.Dist.Ct.App. 1969), and Arch Roberts & Co. v. Auto-Owners Insurance Co., 305 So.2d 882 (Fla. Dist.Ct.App.1974), are cited for the......
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