Burton v. Diamond Sand & Stone Co., 74--1091
| Decision Date | 20 February 1976 |
| Docket Number | No. 74--1091,74--1091 |
| Parties | Robert BURTON et al., Appellants, v. DIAMOND SAND AND STONE COMPANY and Continental Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
Patrick E. Geraghty, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
G. Hunter Gibbons, of Dart, Dickinson, O'Riorden, Gibbons & Quale, Sarasota, for appellees.
The final judgment appealed was rendered after trial on the merits of the crossclaims of appellants and appellees against each other on the question of coverage under their respective insurance policies. The plaintiff's suit for damages was a wrongful death action against the parties to this appeal. The crossclaims were severed from the wrongful death claim for a separate trial.
The final judgment found that Canal Insurance Company was estopped to deny coverage under its policy issued to Pete Miller and that the Canal policy provides primary coverage with regard to the accident which is the subject matter of the plaintiff's complaint. The final judgment further found that Continental Insurance Company's policy No. L4283964 provides secondary coverage; that Continental's policy No. L4283964 provides coverage equal to the maximum amount set forth in said policy; and that no coverage was provided for this accident by a second Continental policy, No. L4293071.
We affirm the final judgment in all respects with the exception of the premature finding that the Canal policy provides primary coverage and Continental's policy No. L4283964 provides secondary coverage.
Appellant takes the position that the trial court committed error in failing to determine whether or not Robert Burton, the driver of the truck on the date of the accident, was an employee, statutory employee or borrowed servant of Diamond Sand and Stone Company. Robert Burton was hired and paid by Pete Miller and the truck involved in the accident was owned by Pete Miller. If Robert Burton was in fact a borrowed servant, employee, or statutory employee of Diamond Sand, Diamond Sand's policy with Continental would provide primary coverage based on the doctrine of Respondeat superior, while the policy of Pete Miller with Canal would provide secondary coverage based on the vicarious liability as owner of the truck. See Hutchins v. Campbell, Inc., Fla.App.2d 1960, 123 So.2d 273, and Hertz Corporation v. Ralph M. Parsons Company, 5th Cir., 419 F.2d 783 (1969).
Although Pete Miller hired Robert Burton and was paying his salary, the appellants contend that Robert Burton can still be a borrowed servant of Diamond Sand. The general rule is set out in 21 Fla.Jur., Master and Servant, § 69, as follows:
It is appellants' position that under the facts of this case Diamond Sand had complete control over the conduct of Robert Burton in regard to the operation of the truck. This, they say, can be established by the facts that on the date of the accident the truck was under lease to Diamond Sand, was being operated in the furtherance of Diamond Sand's business, was operated pursuant to Diamond Sand's Public Service Certificate, and Robert Burton was carrying out the instructions of the dispatcher for Diamond Sand who had told him where to deliver the load.
On the other side of the coin, the lease agreement between Pete Miller and Diamond Sand places all of the obligations and liabilities on Pete Miller. Appellants, however, argue that the lease is in contravention of the rules and regulations of the ...
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