Barnes v. Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co., 62-30

• Decision Date: 05 November 1962
• Docket Number: No. 62-30,62-30
• Citation: 146 So.2d 119
• Parties: Leon E. BARNES and Annie S. Barnes, his wife, Appellants, v. PENNSYLVANIA THRESHERMEN & FARMERS' MUTUAL CASUALTY INSURANCE COMPANY, and Curtis E. Scott, individually and d/b/a Scott Electric, Appellees.
• Court: Florida District Court of Appeals

Page 119

146 So.2d 119

Leon E. BARNES and Annie S. Barnes, his wife, Appellants, v. PENNSYLVANIA THRESHERMEN & FARMERS' MUTUAL CASUALTY INSURANCE COMPANY, and Curtis E. Scott, individually and d/b/a Scott Electric, Appellees.

No. 62-30.

District Court of Appeal of Florida, Third District.

Nov. 5, 1962.

Thomas A. Horkan, Jr., Miami, for appellants.

Smith, Poole & Pahules; Curtis E. Scott and Jesse D. Henry, Miami, for appellees.

Before PEARSON, TILLMAN, C. J., and CARROLL and HENDRY, JJ.

PEARSON, TILLMAN, Chief Judge.

The appellants, Leon E. Barnes and Annie S. Barnes, recovered judgments in a personal injury action against Curtis E. Scott, individually and doing business as Scott Electric. Appellee, Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Company, is the judgment debtor's insurance carrier. This appeal is from a final judgment, on a rule issued upon petition of the judgment creditors, releasing the insurance company from all liability. We reverse.

The rule directed the insurance company to show cause why the judgments should not be paid by the company as insurer for the defendant, Scott. In its answer to the rule nisi, the insurance company denied liability because of the claimed failure of the defendant, Scott, to comply with the assistance and co-operation clause of his policy. Plaintiffs moved to strike the answer to the rule nisi on the ground that the alleged breach of the co-operation clause, if it existed, was immaterial.

After issue was joined and jury waived, the judge tried the question of the company's liability under the policy. His findings are set forth in a well-written order. We adopt that portion of the order as a statement of facts upon this appeal.

'The Assistance and Cooperation Clause between the insured and insurer of the policy in question reads as follows: '12. Assistance and Cooperation of the Insured. The insured shall cooperate with the company and, upon the company's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of the accident.'

'The issues to be determined by the Court in this matter are whether the conduct of the defendant Scott was such as to amount to a breach of the Assistance and Cooperation Clause of the policy under the facts of this case, and if there was a breach, did it have a material and prejudicial effect in the defense thereof?

'On or about March 26, 1960, at approximately 6:30 P.M., at or near the intersection of Southwest 92nd Avenue and Southwest 48th Street, in Miami, Dade County, Florida, an accident occurred wherein the driver of a 1959 Chevrolet truck, one Russell E. Boone, an employee of the defendant Scott, collided with an automobile then and there driven by one of the plaintiffs, ANNIE S. BARNES, with GEORGE C. SIRAKIDES, a passenger in her car, whose death resulted from this accident. The defendant Scott was on a fishing trip at the time the accident occurred; therefore, he was not an eye witness to the accident, but was the owner of the truck involved, the employer of the driver of it, and the actual defendant in this action.

'It further appears from the testimony that the defendant's wife, MINNIE SCOTT, had more knowledge than the defendant Scott himself with regard to the facts surrounding the accident, and cooperated to the extent of giving a statement of what knowledge she had to a representative of the insurer. A statement from defendant Scott was not requested at that time.

'Later, a lawsuit was filed by the plaintiffs herein, service was had upon the defendant Scott, and in due time, the suit papers were forwarded to the attorneys for the defendant-insurer. From this time on trouble ensued between the defendant Scott and the insurer, through their representatives. The evidence revealed that the defendant-insurer was also the collision carrier covering the truck owned by the defendant Scott involved in this accident. The evidence further revealed that defendant Scott was completely dissatisfied with the settlement offer on his truck from the insurer, and expressed his dissatisfaction quite strongly during he taking of his testimony in this cause, and further, by way of documentary evidence that was offered and admitted, which reflected ill-feeling toward the insurance carrier on his part. During the pendency of the within cause and the companion cases hereinbefore mentioned, defendant Scott was set down for the taking of his deposition at least three times, and each time he failed to appear at the appointed hearings. He was further requested on several occasions to appear at the offices of the attorneys for the insurer for conferences in regard to said actions; he also failed to appear at these requested meetings.

'The evidence reflects that up to the time the attorneys for the defendant-insurer were allowed to withdraw as counsel for the defendant Scott in this case, they tried diligently to represent defendant Scott but he would not co-operate, and therefore, the attorneys alleged they could no longer carry out their duties. The attorneys had good reason to believe that defendant Scott would not attend the trial of this case due to his previous conduct of not appearing for depositions and not appearing at their offices when requested; however, it should be stated that defendant Scott did appear at the trial after due notice was given by the Court of the trial date, and of course, after the...