Centennial Ins. Co. v. Parnell

• Citation: 83 So.2d 688
• Parties: CENTENNIAL INSURANCE COMPANY, a corporation, Appellant, v. W. E. PARNELL and Amy Parnell, Appellees.
• Decision Date: 19 October 1955
• Court: Florida Supreme Court

Page 688

83 So.2d 688

CENTENNIAL INSURANCE COMPANY, a corporation, Appellant, v. W. E. PARNELL and Amy Parnell, Appellees.

Supreme Court of Florida, Special Division A.

Oct. 19, 1955.

Rehearing Denied Dec. 19, 1955.

Harry T. Gray, Francis P. Conroy, Sam R. Marks and Marks, Gray, Yates & Conroy, Jacksonville, and Bigham, Englar, Jones & Houston, New York City, for appellant.

Elmer Norton and Carlton Welch, Jacksonville, for appellees.

ROBERTS, Justice.

The plaintiffs ('the Parnells' hereafter) sued the defendant insurance company ('Centennial' hereafter) in two counts on an alleged oral maritime contract (1) of insurance of (2) to insure certain fishing vessels owned by the Parnells, to recover for the loss of one of the vessels, the 'Parnell'. The jury found in favor of the Parnells, assessing their damages at $20,000, and awarding them $1,450 interest and an attorney's fee of $4,500. Since the court had charged the jury that an attorney's fee was recoverable only if these was a contract of insurance, the jury must have allowed recovery on that basis. Certennial's motions for new trial and for judgment under 30 F.S.A. Common Law Rules, rule 40 were denied, and it has appealed from the judgment against it.

The 'Parnell' sank while in Campeche Bay in the Gulf of Mexico. Most of the controversy hinges on the fact that the written policy of insurance issued to the Parnells by Centennial provided Campeche coverage only for 30 days from the effective date of the policy, and the loss did not occur within that period. The Parnells claimed, however, that they had entered into an oral contract of insurance with Centennial, through its authorized agent Conklin, under which the 'Parnell' and Campeche coverage for one year, and it was this alleged oral agreement upon which they sued. Centennial denied the agency of Conklin and denied that it had an oral contract of insurance with the Parnells. There were other defenses by Certennial which need not be related here.

The evidence showed that Conklin, an insurance agent, had place the Parnells' marine insurance in the previous year. When it was about to expire, he again solicited their business and made inquiries among various marine insurance companies as to rates, since the company then carrying the risk did not wish to renew. He approached E. Dana Johnson & Company, an insurance broker, with respect to the matter. This company ('Johnson' hereafter) communicated by telephone with the New York office of Centennial and obtained a quotation of the rates which they would charge on this particular risk. Finally, on July 20, 1951, Centennial advised Johnson verbally, by telephone, that they were willing to bind the risk, and a written binder in the form of a telegram was dispatched by Centennial to Johnson late that afternoon. It is admitted by Centennial that this telegram bound them to insure the two vessels named therein, one of which was the 'Parnell', for one year at the rates and for the period specified therein, including Campeche coverage for one year. It was shown, however, that the Campeche coverage was included at the request of Johnson on a contingent basis only, as Johnson was not sure that the Parnells wanted Campeche coverage for the full year, or at all.

In the meantime, earlier that day (July 20), Conklin had called upon the Parnells, explained the rates to them on the basis of the information supplied to him by Johnson, and they authorized him to place the insurance with Centennial. At this point, there is a direct conflict in the testimony as to Campeche coverage. Conklin testified that the Parnells told him they wanted Campeche coverage only for 30 days, as they were planning to bring their boats back from that area immediately and not send them back until after bad weather. The Parnells testified that they wanted this coverage for the full year, and that Conklin assured them that they would be so covered.

After further correspondence between Johnson and Centennial, a written policy was issued on August 3, 1951, which contained no Campeche coverage whatsoever. Subsequently, however, on August 6, 1951, in response to a letter from Johnson, an endorsement was written and attached to the policy, granting Campeche coverage for 30 days from the effective date of the policy (July 21, 1951).

Mrs. Parnell testified that she received the policy, but did not read it; that she received a letter from Conklin, advising that he was enclosing the endorsement relating to Campeche coverage and read the letter but did not read the endorsement.

It is undisputed that the Parnells dealt only with Conklin and Centennial dealt only with Johnson. The written policy was sent to Johnson for delivery to the Parnells, and the premium was forwarded to Centennial by Johnson. Conklin arranged premium financing for the Parnells with a local bank.

The Parnells take the position that, both under the general law of agency and under the provisions of Section 625.01, Fla.Stat.1953, F.S.A., Conklin was the agent of Centennial and made a binding oral agreement of insurance with them that could not be varied by the terms of a written policy which they never read and, therefore, never accepted. Centennial contends the evidence shows that neither Conklin nor Johnson had any authority to bind it to a risk; that it is the...