Blumberg v. American Fire & Cas. Co.

• Decision Date: 09 March 1951
• Citation: 51 So.2d 182
• Parties: BLUMBERG et al. v. AMERICAN FIRE & CASUALTY CO. et al.
• Court: Florida Supreme Court

Page 182

51 So.2d 182

BLUMBERG et al. v.AMERICAN FIRE & CASUALTY CO. et al.

Supreme Court of Florida, Special Division B.

March 9, 1951.

Smith & Petteway, Lakeland, and Wendell C. Heaton, Tallahassee, for appellants.

D. M. Martin, Plant City, for appellee.

TERRELL, Justice.

The claimant, Barney Kitchens, filed a claim for workmen's compensation against Harry Blumberg as employer.The appellee, insurance carrier, declined to pay the claim.The deputy commissioner held that the policy did not cover Blumberg, the individual, and required him (Blumberg) to pay the claim.On appeal the Industrial Commission reversed the deputy commissioner and held that the policy covered Blumberg as an individual.The Circuit Court reversed the Industrial Commission.This appeal is from the order of the Circuit Court reversing the order of the Industrial Commission.

The point for determination is whether or not the policy as written and delivered by the insurance carrier covered Blumberg as an individual or was it limited in coverage to his corporation.

The deputy commissioner and the Circuit Court made no findings of fact but held in effect that the policy as written did not cover Blumberg the individual.The Industrial Commission reviewed the evidence and made extensive findings of fact, the pertinent part of which is as follows:

'* * * the facts in the present case indicate that the parties, that is Harry Blumberg and the agent of the carrier, James E. Dillinger, intended the coverage in this instance to be for Harry Blumberg in all of his operations, and not the operations of the corporation.* * * In addition, the Commission is of the opinion that, in the event the Courts should hold that the policy by its terms does not cover the operations in question, such policy should be reformed to express the intent and agreement of the parties; namely, that all employees of Harry Blumberg, the individual, were covered by compensation insurance.'

The policy, No. WC 32220, was written at the request of Harry Blumberg by the agent of the carrier and covered the period, 'August 11, 1949 to August 11, 1950.'It insured 'Harry Blumberg, d/b/a B & S Fruit Company.Individual, co-partnership, corporation--or estate?Corporation.'It described the classification as 'Orchards and Vineyards--other than inservants--all operations--including Fruit Picking and Drivers, Chauffeurs and their Helpers.'The policy also contained standard form 'undescribed operations endorsement' and named Harry Blumberg without further description.

Despite the fact that some of the evidence was in conflict the Industrial Commission found that '* * * Harry Blumberg and the Agent of the Carrier, James E. Dillinger, intended the coverage * * * to be for Harry Blumberg in all his operations, and not the operations of the corporation.'The Industrial Commission also found that the corporation was inactive and had been for some time, that Harry Blumberg owned extensive groves, including town and other rental properties which he administered individually and was doing so at the time the policy was written, that this was known to the insurance carrier because it audited the books of Blumberg, the individual, to arrive at the premium charge on the policy.

It may be that the terms of the policy are ambiguous but that is not necessarily material if the ambiguity can be explained.It is admitted that at the time Kitchens was injured he was working on a filling station that belonged to Blumberg and his wife as tenants by the entireties but it was in charge of Blumberg; Kitchens was working for Blumberg and it was one of Blumberg's collective properties.This Court is committed to the doctrine that the husband is the sole custodian of property held by the entireties under such circumstances.Socicero v. National Union Co. of Pittsburg, Pa., 90 Fla. 820, 106 So. 879.Insurance policies are prepared by the insurance company and, as in this case, the insured may never read them unless some controversy arises as to their coverage.The law does not require him to do so.Cyclopedia of Insurance Law (Couch), Vol. 6, Section 1391, page 4987.

The deputy...