Auto-Owners Ins. Co. v. Jones, AUTO-OWNERS
| Decision Date | 11 March 1981 |
| Docket Number | Nos. 78-2224,79-141,AUTO-OWNERS,s. 78-2224 |
| Citation | 397 So.2d 317 |
| Parties | INSURANCE COMPANY, Appellant, v. Clarence E. JONES and Vivian E. Jones, Appellees. |
| Court | Florida District Court of Appeals |
Jack Miller of Brennan, McAliley, Hayskar & McAliley, West Palm Beach, for appellant.
Sam D. Phillips, Jr. of Phillips, Babbitt & Cook, P.A., West Palm Beach, for appellee.
These are consolidated appeals from a declaratory judgment action in which a final judgment awarded attorneys fees to the appellees and from a subsequent order which determined the amount of those fees. The sole determinative issue is whether a wife-passenger in an automobile owned by her husband and driven by him is an insured under the terms of an automobile liability insurance policy issued to her husband so as to give rise to a duty on the part of the insurance company to defend her against a claim of negligence. A peripheral question is whether the allegations of a complaint can impose upon an insurer a duty to defend anyone who is a passenger in an insured automobile. We hold that under the facts of this case the insurance company had no duty to defend and reverse.
The facts are relatively complicated. The appellees, Clarence Jones and his wife Vivian, were involved in an automobile accident with Darrell Halling. Mr. Jones was driving the automobile which he owned and his wife was a passenger. Mr. Jones was insured under an automobile liability insurance policy issued by the appellant, Auto-Owners Insurance Company. When the Hallings filed a claim against Mr. Jones seeking damages from the accident, the appellant paid its policy limits to the Hallings and obtained a general release in favor of itself and Mr. Jones. Two years later, the Hallings filed suit against Mr. and Mrs. Jones for injuries allegedly sustained in the same accident. The basis for the suit against Mrs. Jones was that she negligently failed to prevent her husband, who was allegedly intoxicated, from driving the vehicle. Although the appellant agreed to defend Mr. Jones in this action, it refused to defend Mrs. Jones.
Mr. and Mrs. Jones then retained the services of their present counsel to defend the suit brought by the Hallings and to file a declaratory judgment action against the appellant to determine appellant's obligations to Mrs. Jones. Approximately one week after the declaratory judgment action was filed, appellant voluntarily agreed to defend Mrs. Jones but refused to compensate her for the attorneys fees incurred in connection with prosecution of the declaratory judgment action and the defense of the Hallings' suit up to that time. The appellant denied liability for attorneys fees pursuant to its contention that it was not obligated to defend Mrs. Jones because she was not an insured under the policy issued to Mr. Jones. Before the declaratory judgment was decided by the court, the negligence action by the Hallings was terminated in the Jones' favor.
Thereafter, the trial court entered judgment in favor of the appellees in the declaratory judgment action. The pertinent findings of the final judgment were that (1) Mrs. Jones was an insured under the terms of the policy issued by the appellant, (2) Mrs. Jones was entitled to a reasonable attorneys fee for defending the suit brought by the Hallings for that period of time until the appellant assumed the defense of Mrs. Jones, and (3) she was entitled to attorneys fees for the successful prosecution of the declaratory judgment action. The appellant contends that it was not obligated to defend Mrs. Jones in the negligence suit because she was not an "insured" person under the policy issued to Mr. Jones. Thus, since there was no duty to defend, appellant asserts that the trial court incorrectly found such a duty and improperly assessed an attorneys fee against the appellant. We agree.
Obviously, there is no duty on the part of an insurance company to defend anyone who is not an insured under the terms of the policy. The pertinent provisions of the policy involved here with regard to the definition of the word "insured" are:
A. "INSURED" shall mean:
(1) Whenever used in coverages A and B (liability...
To continue reading
Request your trial
-
78 Hawai'i 174, AIG Hawaii Ins. Co., Inc. v. Smith, 15297
...Relying on Scott v. American Standard Insurance Co. of Wisconsin, 132 Wis.2d 304, 392 N.W.2d 461 (App.1986), and Auto-Owners Insurance Co. v. Jones, 397 So.2d 317 (Fla.App.1981), AIG argues that other jurisdictions have construed language identical or similar to clause four as being limited......
-
Aetna Life and Cas. Co. v. Bulaong
...F.Supp. 218, 218 (N.D.Cal.1960); Dunlap v. Maryland Casualty Co., 242 Ark. 533, 535-37, 414 S.W.2d 397 (1967); Auto-Owners Ins. Co. v. Jones, 397 So.2d 317, 319-20 (Fla.App.1981). The commentators generally agree. " 'Use' is to be given its ordinary meaning. It denotes the employment of the......
-
Francis-Newell v. Prudential Ins. Co. of America, FRANCIS-NEWEL
...F.Supp. 218, 218 (N.D.Cal.1960); Dunlap v. Maryland Casualty Co., 242 Ark. 533, 535-37, 414 S.W.2d 397 (1967); Auto-Owners Ins. Co. v. Jones, 397 So.2d 317, 319-20 (Fla.App.1981). The commentators generally agree. " 'Use' is to be given its ordinary meaning. It denotes the employment of the......
-
Dobosh v. Rocky Mountain Fire and Cas. Co., 7402-8-II
...353 F.Supp. 1191, 1193 (W.D.Okla.1972); Orrill v. Garrett, 100 Ill.App.2d 194, 241 N.E.2d 1, 3 (1968). But see Auto-Owners Ins. Co. v. Jones, 397 So.2d 317, 320 (Fla.App.1981). The question of when a person is "using" a vehicle and is protected by an uninsured motorist endorsement was addre......