Bill Binko Chrysler-Plymouth, Inc. v. Compass Ins. Co., Inc., CHRYSLER-PLYMOUT

• Decision Date: 18 June 1980
• Docket Number: CHRYSLER-PLYMOUT,No. 79-711,INC,79-711
• Citation: 385 So.2d 692
• Parties: BILL BINKO, a Florida Corporation, Appellant, v. COMPASS INSURANCE COMPANY, INC., a Foreign Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 692

385 So.2d 692

BILL BINKO CHRYSLER-PLYMOUTH, INC., a Florida Corporation, Appellant, v. COMPASS INSURANCE COMPANY, INC., a Foreign Corporation, Appellee.

No. 79-711.

District Court of Appeal of Florida, Fourth District.

June 18, 1980.

John L. Britton of Friedman, Britton, Cohen, Kaufman, Zinkow, Benson & Schantz, Miami, for appellant.

William D. Ricker, Jr. of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellee.

DOWNEY, Judge.

Appellant, Bill Binko Chrysler-Plymouth, Inc., sued appellee, Compass Insurance Company, Inc., for declaratory judgment to determine coverage under an insurance policy issued to Binko by Compass. From a final judgment in favor of Compass Binko perfected this plenary appeal.

Bill Binko is a retail automobile dealer located in Broward County. In the course of its business Binko obtained a liability insurance policy for the period January 1, 1976, through January 1, 1977, issued by Compass. During the policy period Binko sold a 1976 Plymouth Volare to Jack E. Wolmer. In September 1977 the Plymouth was involved in a collision in which Wolmer's wife, Mary, was killed. In January 1978 Mary's estate filed a wrongful death action against Binko and others, claiming negligence, breach of express and implied warranties, and strict liability in tort. Compass denied coverage on the grounds its policy had expired at the time of the accident, and thus Compass was not required to provide a defense for Binko.

Binko contends that its policy is an "occurrence policy." That type of policy has been defined as one wherein the coverage is effective if the negligent act or omission occurs during the policy period, regardless of the date of discovery. Ranger Ins. Co. v. United States Fire Ins. Co., 350 So.2d 570 (Fla. 3d DCA 1977). In support of that contention appellant points to the following definition found in Part II Policy Provisions:

OCCURRENCE means an accident including continuous and repeated exposure to conditions which result in BODILY INJURY or PROPERTY DAMAGE neither expected nor intended from the standpoint of the INSURED;

"PRODUCTS HAZARD" includes BODILY INJURY and PROPERTY DAMAGE arising out of the NAMED INSURED'S PRODUCTS or reliance upon a representation or warranty made at any time with respect thereto, but only if the BODILY INJURY or PROPERTY DAMAGE occurs away from premises owned by or rented to the NAMED INSURED and after physical possession of such product has been relinquished to others;

It is appellant's position that the negligent act or omission, if any, charged in the wrongful death claim occurred during the policy period; thus, under an occurrence policy appellant would be covered by the contract.

At first blush appellant's argument seems plausible. However, a more analytical examination...