Capoferri v. Allstate Ins. Co., 74--1644

Citation322 So.2d 625
Decision Date25 November 1975
Docket NumberNo. 74--1644,74--1644
CourtCourt of Appeal of Florida (US)
PartiesJohn Joseph CAPOFERRI, and Aetna Casualty & Surety Co., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.

Preddy, Haddad, Kutner & Hardy, Miami, for appellants.

Adams, George, Wood, Lee, Schulte & Thompson, Jeanne Heyward, Miami, for appellee.

Before BARKDULL, C.J., HENDRY, J., and PIERCE, WILLIAM C., Associate Judge.

HENDRY, Judge.

Appellants, defendants below, bring this appeal from a final summary judgment entered in favor of appellee, third party defendant below.

On March 10, 1973, appellant John J. Capoferri was driving, with express permission, an automobile owned by Vanessa Gordon. Upon leaving the Gulfstream Race Track in Broward County, Florida, Capoferri was involved in an automobile accident with another vehicle driven by Charles Dimon. As a result of that accident, Capoferri was charged with careless driving and later pleaded guilty to the charge in Traffic Court.

Following the accident, Capoferri reported the event to appellee Allstate Insurance Company and to appellant Aetna Casualty & Surety Company. Allstate had in full force and effect an insurance policy covering the automobile Capoferri was driving at the time of the accident, and Aetna had in full force and effect an automobile liability insurance policy covering Capoferri personally.

On May 21, 1973, Charles Dimon, plaintiff below, filed a complaint against Capoferri alleging that he willfully assaulted Dimon by deliberately driving his automobile into the automobile driven by Dimon, and asked for both compensatory and punitive damages. Allstate's investigator took a sworn statement from Capoferri, in which he stated the mishap was caused by his foot accidentally slipping off the brake pedal and striking the accelerator and not by any willful act on his part.

Allstate initially undertook to represent Capoferri in the lawsuit as to any claims for compensatory damage, but not for punitive damages. Later, Allstate advised Capoferri by letter that the Allstate insurance policy specifically excluded bodily injury or property damage caused intentionally by the insured. This letter further advised Capoferri that the attorneys for Allstate would no longer represent him and that he should obtain his own counsel.

On January 29, 1974, Capoferri's attorney filed an answer to Dimon's complaint and filed a third party complaint against Allstate for breach of their insurance contract, seeking attorneys fees and expenses for defending the main action and prosecuting the third party complaint, and also indemnity from any judgment rendered against Capoferri as a result of Allstate's breach of contract.

The trial of Dimon's claim against Capoferri took place on April 24, 1974, and the jury returned a verdict for Capoferri. Subsequently a final judgment was entered on his behalf.

On July 19, 1974, Allstate filed a motion for summary judgment on the thrid party complaint. The motion was granted and a summary final judgment for Allstate was entered on November 7, 1974. From this judgment, appellants bring their appeal.

Appellants contend that the trial court erred in entering its summary final judgment because an automobile insurance company cannot lawfully withdraw coverage...

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18 cases
  • Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., AR-437
    • United States
    • Florida District Court of Appeals
    • June 12, 1985
    ...the issues involved in the case before us." Federal Insurance Co. v. Applestein, 377 So.2d at 233. See also, Capoferri v. Allstate Insurance Co., 322 So.2d 625 (Fla. 3d DCA 1975). Next, we must consider whether Nationwide was later excused from defending by reason of the amended complaint's......
  • John Doe v. Onebeacon Am. Ins. Co.
    • United States
    • U.S. District Court — Northern District of Florida
    • October 9, 2014
    ...fails to bring the case within the coverage of the policy," the insurer owes no duty to defend the suit. Capoferri v. Allstate Ins. Co., 322 So. 2d 625, 627 (Fla. 3d DCA 1975). Even reading theunderlying allegations fairly and in favor of the insured, artful wording of the complaint will no......
  • N.H. Indem. Co. v. Scott
    • United States
    • U.S. District Court — Middle District of Florida
    • December 13, 2012
    ...Cas. v. Caldwell, 630 So.2d 668 (Fla. 4th DCA 1994); Aetna Cas. & Sur. v. Miller, 550 So.2d 29 (Fla. 3d DCA 1989); Capoferri v. Allstate Ins., 322 So.2d 625 (Fla. 3d DCA 1975); Buchwald v. Hartford Acc. and Indem., 319 So.2d 164 (Fla. 3d DCA 1975); Grange Mutual Cas. v. Thomas, 301 So.2d 15......
  • Swartz v. McNabb
    • United States
    • Court of Appeal of Louisiana — District of US
    • October 30, 2002
    ...187 (Fla.3d D.C.A.1966). See also State Farm & Casualty Co. v. Saurazas, 334 So.2d 180 (Fla.4th D.C.A. 1976); Capoferri v. Allstate Insurance Co., 322 So.2d 625 (Fla.3d D.C.A.1975); Buchwald v. Hartford Accident and Indemnity Co., 319 So.2d 164 (Fla.3d In the instant case, the insured Donal......
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