Bergh v. Canadian Universal Ins. Co.

• Citation: 216 So.2d 436
• Decision Date: 20 November 1968
• Docket Number: No. 36510,36510
• Parties: M. B. BERGH, Petitioner, v. CANADIAN UNIVERSAL INSURANCE COMPANY, a corporation, Respondent.
• Court: United States State Supreme Court of Florida

Page 436

216 So.2d 436

M. B. BERGH, Petitioner, v. CANADIAN UNIVERSAL INSURANCE COMPANY, a corporation, Respondent.

No. 36510.

Supreme Court of Florida.

Nov. 20, 1968.

Rehearing Denied Jan. 6, 1969.

Reinstine, Reinstine & Panken, Jacksonville, for petitioner.

Howell, Kirby, Montgomery, Sands & D'Aiuto, Jacksonville, for respondent.

ERVIN, Justice.

We have for review Petitioner's claim of conflict jurisdiction in the decision of the District Court of Appeal, First District, in the case of Bergh v. Canadian Universal Insurance Co. (1967), 199 So.2d 744. See also the earlier decision of the District Court in the case reported in 197 So.2d 847. The Respondent, the insurance company, was plaintiff and Petitioner Bergh, defendant in a declaratory judgment action brought in the Circuit Court. It appears from the opinions of the District Court in said decisions that Respondent issued a policy of professional liability insurance to Petitioner, Dr. M. B. Bergh. The policy provided that Respondent would, subject to specific provisions, exclusions and conditions, pay on behalf of Dr. Bergh all sums which he should become legally obligated to pay as damages arising out of the performance of professional services in his capacity as physician. Under the section titled 'Conditions' the policy provides:

'* * * Upon the insured becoming aware of any alleged injury covered hereby, written notice shall be given by or on behalf of the insured to the Company or any of its authorized agents as soon as practicable, together with the fullest information available. * * *'

It appears that in January, 1964 Petitioner performed a surgical operation upon one Lillie L. Thomas and provided follow-up care and further surgery upon her in June, 1964 with additional follow-up care at Petitioner's hospital until her discharge from that hospital in July, 1964, whereupon she came under the care of other physicians.

Shortly after the operation upon, and treatment of said patient, Petitioner received a telephone call from the patient's attorney concerning a possible medical negligence claim against him. This call was followed by a letter dated October 26, 1964, informing Petitioner that the patient had retained services of this attorney and inviting Petitioner to contact his attorney at his earliest convenience. It appears that Petitioner did nothing with that letter other than filing it and did not notify his insurance company. Subsequently, on or about February 20, 1965 the patient instituted an action at law in the Circuit Court in and for Clay County, Florida against Dr. M. B. Bergh, alleging acts of negligence growing out of the surgical procedures and medical attention, or lack thereof, in connection with the physician-patient relationship. Upon receipt of the summons and complaint by Dr. Bergh, still no notice was given to the insurer and the suit papers were not forwarded to the insurer but were delivered to Dr. Bergh's personal attorney. However, on March 31, 1965 orally, and on April 1, 1965 in writing, notice of the claim and the patient's alleged injury was given for the first time to the insurer.

It further appears:

A. On April 12, 1965 the Respondent procured from Petitioner a nonwaiver agreement permitting the Company to:

'* * * proceed to investigate the said accident, or undertake the defense of any suit growing out of the said accident, without prejudice to the rights of the said company, and that no action heretofore or hereafter taken by the company shall be construed as a waiver of the right of the company, if in fact it has such a right, to deny liability and withdraw from the case.'

B. Thereafter, the Respondent took control of the suit that the patient had filed against its insured. Respondent, through its attorneys, had control of the suit from about April 12, 1965 until the filing of its motion to withdraw as counsel for Petitioner on December 10, 1965--a period of some eight months. During this period Respondent filed pleadings, argued motions, propounded interrogatories and participated in or took depositions.

C. On December 10, 1965 Respondent's attorneys filed motion to withdraw as counsel for Petitioner, asserting as a basis therefor Petitioner's failure to give notice as soon as practicable as required by the liability policy. Also asserted was the nonwaiver agreement entered into on April 12, 1965.

D. On December 21, 1965 Respondent filed a complaint for a declaratory decree in the instant action. In the complaint Respondent alleged:

'* * * Bergh failed, omitted and neglected to furnish such notice as soon as practicable or to immediately forward said suit papers which were served upon him * * * he gave no notice whatsoever to the Plaintiff insurer or any of its duly authorized agents until on or about March 31, 1965, long after the alleged negligent or wrongful acts were committed * * *

'* * * Thereafter, on or about April 16, 1965, the * * * attorneys for the Plaintiff entered an appearance on behalf of Dr. Bergh in the Clay County action and proceeded to accord said Defendant Dr. Bergh a defense pursuant to a non-waiver agreement or reservation of rights wherein said Defendant Bergh permitted Canadian Universal Insurance Company to undertake the defense without prejudice to its rights to deny liability and withdraw from said law action * * *

'Plaintiff contends that the Defendant * * * breached the notice provisions of his insurance policy and therefore is not entitled to coverage or protection under and by virtue of said policy, by failing to comply with the provisions pertaining thereto.' (Emphasis added.)

Petitioner closed the complaint by praying that the court would

'Enter a declaratory judgment construing and declaring all of the respective rights, legal relations, immunities, obligations, or lack thereof, existing between the Plaintiff and the Defendant Arising out of and under the policy of insurance above mentioned and by virtue of the matters and things hereinabove alleged * * *' (Emphasis added.)

E. The District Court, in its earlier opinion, states:

'The Court below found that notice of the alleged injury covered by the insurance policy was not given by or on behalf of the appellant to the company or any of its agents as soon as practicable after he became aware of the alleged injury. Such notice was required by the policy and failure to give it in the circumstances here obtaining constituted a material breach of the policy provisions so as to relieve the appellee of coverage and liability to the insured appellant.' (197 So.2d 847, text 849)

F. Petitioner appealed to the District Court of Appeal, First District, which court affirmed the trial judge's decree. Petition for rehearing was denied. See 197 So.2d 847.

G. Petitioner then filed an extraordinary petition to recall the mandate and reverse the court's decision for lack of jurisdiction. As grounds for and in support of this petition Petitioner contended that the Respondent in its declaratory judgment complaint presented to the circuit court Immaterial factual questions for determination as to the issue of its liability, and did not seek a construction of the policy and the nonwaiver agreement. Petitioner contended that Chapter 87, Florida Statutes, F.S.A., the Declaratory Judgment Act, cannot be availed for the sole purpose of determining the sufficiency and timeliness of a notice of claim under a policy of insurance where there is no Real issue involving the construction of a policy provision. The District Court denied Petitioner's extraordinary petition to recall mandate (199 So.2d 744). It stated that the situation was not one where the only question to be determined was a question of fact, but involved a construction and interpretation of the policy and the nonwaiver agreement. Specifically, the District Court said:

'(t)he finding of fact that the insured had not given notice of claim to his carrier as soon as practicable was only incidental or ancillary to the determination of rights of the parties under a nonwaiver agreement which had been entered into by them.' (At 745.)

H. Petitioner has petitioned us for writ of certiorari for review of this holding and contends that we may properly invoke conflict jurisdiction pursuant to Article V, Section 4(2), Florida Constitution, F.S.A., and Rule 4.5(c), Florida Appellate Rules, 32 F.S.A., and cites for conflict the cases immediately hereinafter discussed.

In the case of Columbia Casualty Co. v. Zimmerman, Fla., 62 So.2d 338, we held that a declaratory judgment action would not lie where there is no doubt or question as to the meaning of the contract involved. Zimmerman concerned an automobile liability insurance policy and the doubt shown to exist was factual, viz., whether or not the automobile involved was being driven with or without the knowledge and consent of the insured. We said that such doubt

'* * * is not a doubt as to the meaning of the contract or as to the proper interpretation of the contract. It is simply a doubt as to what will be the ultimate outcome of a consideration of the facts bearing on the question of whether or not the automobile was being driven with the knowledge and consent of the insured.

'The declaratory judgment statute cannot and should not be extended to cover any such situation.' (At 340.)

Likewise, in a somewhat similar situation in which the propriety of declaratory judgment was considered, the District Court of Appeal, Third District, in the case of Johnson v. Atlantic National Insurance Company, 155 So.2d 886, held that an insurer's complaint containing allegations of nonliability on the basis of the insured's breach of duty to give it written notice of an accident was insufficient to state a cause of action for declaratory relief. That court also noted that there must be a doubt or need for construction of the policy or for a determination as to validity.

The question of applicability of declaratory judgment relief was also involved...