Burns v. Consolidated American Ins. Co.
| Decision Date | 27 June 1978 |
| Docket Number | No. 77-1381,77-1381 |
| Parties | William T. BURNS, III, Appellant, v. CONSOLIDATED AMERICAN INSURANCE COMPANY et al., Appellees. |
| Court | Florida District Court of Appeals |
Krongold, Bass & Rosen and Paul H. Bass, Coral Gables, for appellant.
Corlett, Merritt, Killian & Sikes, Greene & Cooper and Sharon Wolfe, Miami, Walsh, Kahn & Gustafson and Michael K. Gray, Fort Lauderdale, for appellees.
Before BARKDULL and HUBBART, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
This is an appeal by an insured, William T. Burns, III (Burns), plaintiff in the trial court, from a final summary judgment rendered in favor of defendants, Consolidated American Insurance Company (Consolidated), the insurer, and Kenneth E. Willits and Willits Insurance Agency, Inc. (Willits), the agent who placed the insurance policy, coverage under which is contested herein. We are asked to determine whether summary judgment was properly rendered in view of the following facts.
In January, 1975, when he was building a new home, Burns went to Willits, seeking coverage on the premises under construction. The two had dealt with each other previously, and, in 1974, Willits had secured a homeowner's policy on the home in which Burns then resided. Pursuant to this January, 1975 meeting, Willits procured for Burns a second policy, substantially identical to the first, covering the house under construction. Both policies were issued by Consolidated, and both, by their terms, excluded coverage for theft "in or to a dwelling while under construction, or of materials or supplies therefor until completed and occupied." Prior to the assertion of any claim by Burns, Consolidated communicated with Willits, requesting that the agent notify Burns of the theft exclusion.
In mid-June, 1975, Burns sustained a theft loss at the house under construction. Both sides agree that Willits told Burns after this incident that the policy covering the new home did not cover the theft loss, but that Willits agreed to try to recover something for Burns under the unscheduled personal property coverage of the first homeowner's policy, if Burns would supply a list of the stolen property. It appears that Burns never supplied the list, and no recovery was had. In mid-July, 1975, Burns sustained a second theft loss on the new house, for which Willits denied coverage.
In September, 1975, Burns filed a complaint against Consolidated, alleging breach of contract and negligence. Consolidated answered, generally denying the allegations except as to the issuance of the policy, and raising, as affirmative defenses, that the policy did not cover the losses incurred, and that the agent was not authorized to commit the company to coverage which was contrary to the terms of the policy. The complaint was later amended to include Willits and his agency as parties defendant, alleging that Willits agreed to cover the new house against theft, and that plaintiff had relied upon Willits' representations and assurances. By his answer, Willits generally denied these allegations. In 1977, Willits and Consolidated filed separate motions for summary judgment, both of which were granted, after several delays, prior to trial. Consolidated's motion did not state with particularity any of the grounds upon which it was based.
Burns contends that when he saw Willits in January of 1975 he asked for coverage which would include protection against the risk of theft on the home being constructed. Willits denies this, contending that only a specific amount of coverage was discussed. Moreover, Willits contends that he told Burns, before any loss occurred, that theft coverage was excluded from the policy on the new house while it was being built. Burns denies this.
Two facts are uncontroverted: The policy at issue excludes coverage for theft on the home under construction; and Burns was informed of this exclusion prior to the second theft loss.
By this appeal plaintiff urges that two errors were committed in the rendition of summary judgment. First he asserts that, formally, defendant Consolidated's motion for summary judgment was insufficient to support the order rendered. It did not meet the requirements of Florida Rule of Civil Procedure 1.510(c) in that it failed to state with particularity the grounds upon which it was based and the substantial matters of law to be answered.
As to this point, Consolidated correctly points out that this issue was raised for the first time on appeal. Since plaintiff never raised in the trial court the question of whether Consolidated's motion complied with the requirements of the rule, and never objected to the entry of summary judgment on this ground, any error pertinent thereto was waived. See Bernard Marko & Associates, Inc. v. Steele, 230 So.2d 42 (Fla.3d DCA 1970); Frank v. Pioneer Metals, Inc., 121 So.2d 685 (Fla.3d DCA 1960).
Moreover, the purpose of the rule is to put the opposing party on notice as to the grounds which will be asserted against him. In the instant case, plaintiff was aware of the grounds before the motion was decided and therefore suffered no prejudice, so that any error would have been harmless. This argument is without merit.
Plaintiff's second assertion of error reaches the heart of the matter for he contends that summary judgment was erroneously granted because genuine issues of material fact remain disputed. We agree, but it is necessary to separate the circumstances which require reversal from those which do not.
Because both sides agree that Willits informed Burns of the exclusion prior to the second theft loss, summary judgment was properly granted in favor of both defendants as to this aspect of the cause. Burns is not entitled to any recovery on this loss when he admittedly knew the policy he owned did not cover the risk encountered. An agent who agrees to obtain insurance, and, through his own fault or neglect, fails to do no, may be liable in damages, but if, after diligent effort, the agent is unable to procure the requested coverage, his only duty is to inform the party of his inability within a reasonable time. Cat 'N Fiddle, Inc. v. Century Insurance Company, 200 So.2d 208 (Fla.3d DCA 1967), vacated on other grounds, 213 So.2d 701 (Fla.1968), modified and conformed, 214 So.2d 503 (Fla.3d DCA 1968). Failure of an insured to take appropriate action when he becomes aware that the coverage he thought he had was not obtained by the agent constitutes both a waiver of his right to performance under an alleged oral contract and an estoppel against his right to assert the claim...
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