Carter v. Peninsular Fire Ins. Co.

• Decision Date: 30 March 1982
• Docket Number: No. 80-832,80-832
• Citation: 411 So.2d 960
• Parties: Carmel CARTER, Rodelio Pena, Manuel Vazquez, and M. V. Supplies, Inc., Appellants, v. PENINSULAR FIRE INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 960

411 So.2d 960

Carmel CARTER, Rodelio Pena, Manuel Vazquez, and M. V. Supplies, Inc., Appellants, v. PENINSULAR FIRE INSURANCE COMPANY, Appellee.

No. 80-832.

District Court of Appeal of Florida, Third District.

March 30, 1982.

Horton, Perse & Ginsberg and Edward A. Perse, Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Jeanne Heyward, Samuel A. Spatzer, Miami, for appellants.

George, Hartz & McNary and Scott R. McNary, Miami, for appellee.

Before HENDRY, SCHWARTZ and NESBITT, JJ.

NESBITT, Judge.

After the jury returned a special interrogatory verdict on behalf of the plaintiff, the trial court entered a judgment for the defendant in accordance with a motion for a directed verdict. The plaintiff appeals. We affirm the trial court order.

Carter and her son received personal injuries as a result of a collision with a van driven by Rodelio Pena, who was an employee of M. V. Supplies, Inc. more M. V. Supplies, Inc. had previously been owned and operated by Manuel Vazquez, Sr. as a sole proprietorship. Several years prior to the accident, he sold the business to his sons, Orlando and Manuel, Jr., who then incorporated. The vehicle which was involved in the accident was titled in the name of Manuel Vazquez, Sr., but was used in the family business.

Carter commenced an action against Pena, M. V. Supplies, Inc., and its insurer, Peninsular Fire Insurance Company. Peninsular's multiperil policy with M. V. Supplies, Inc. contained an Employer's Nonownership Automobile Liability Insurance Endorsement which provided in pertinent part:

The Company will pay on behalf of the insured, all sums which the insured shall become legally obligated to pay as damages because of:

bodily injury or property damage

... arising out of the use in such business, by an employee of the named insured of any non-owned commercial automobile if the use of such commercial automobile is occasional and infrequent ... (emphasis supplied)

Based on this provision, Peninsular filed an action for declaratory judgment against the aforementioned plaintiffs, as well as Manuel Vazquez, Jr., Orlando Vazquez, and Rodelio Pena, seeking a determination that no insurance coverage existed under Peninsular's policy of insurance.

The declaratory judgment action was bifurcated for trial and went to the jury on the single issue of whether the use of the van was occasional and infrequent. The jury found that it was, which activated the policy coverage. Peninsular's post trial motion for a directed verdict was granted.

The test by which we are governed on review of the granting of a motion for directed verdict is whether there is any reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party. The movant admits all of the facts shown in the evidence and admits to every reasonable inference favorable to the adverse party. Tiny's Liquors, Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1978) and cases cited therein. Where the evidence is in conflict or different conclusions or inferences may be drawn from it, the motion must be denied. Martin v. Kendall, 96 So.2d 668 (Fla. 3d DCA 1957), cert. dismissed, 102 So.2d 727 (Fla.1958). In directing a verdict, the trial court in effect takes an issue away from the jury and decides the issue itself as a matter of law. Scott v. Davis, 188 So.2d 864 (Fla. 1st DCA 1966).

Guided by these standards, our responsibility is to search the record to ascertain whether there is any reasonable evidence to show that the use of the vehicle was occasional and infrequent.

M. V. Supplies, Inc. was engaged...