Consolidated Mut. Ins. Co. v. Ivy Liquors, Inc., 65--558
| Decision Date | 05 April 1966 |
| Docket Number | No. 65--558,65--558 |
| Citation | 185 So.2d 187 |
| Parties | CONSOLIDATED MUTUAL INSURANCE COMPANY, a New York corporation, Appellant, v. IVY LIQUORS, INC., a Florida corporation, d/b/a 14th St. Liquors, Appellee. |
| Court | Florida District Court of Appeals |
West, Feder & Goldman, Miami, for appellant.
Knight, Underwood, Peters & Hoeveler and Cecyl L. Pickle, Miami, for appellee.
Before HENDRY, C.J., and CARROLL, J., and KING, J. LAWRENCE, Associate Judge.
This is an appeal by the defendant, Consolidated Mutual Insurance Company, from a summary final judgment in favor of plaintiff, Ivy Liquors, Inc. The plaintiff sought to recover the amount of the judgment, costs and attorney's fees incurred as a result of a law suit brought by one Daniel Cooper.
Daniel Cooper instituted an action against the plaintiff and Al Ervin, its general manager, seeking damages for personal injuries sustained by him as a result of an assault committed by Ervin while acting within the scope of his duties as general manager. Plaintiff requested that this suit be defended by defendant, and that it be indemnified for any damages resulting therefrom, pursuant to a policy of insurance in effect at the time of the assault. By the insurance policy, the defendant bound itself to indemnify the plaintiff for any sums which it may become legally obligated to pay as damages because of bodily injury sustained by any person and caused by accident, the term accident including assault and battery unless committed by or at the direction of the insured. The defendant undertook the defense of the law suit and proceeded with an investigation of the charges made in the complaint. Subsequently, the defendant notified the plaintiff that it was withdrawing its defense since there was no coverage provided by the insurance policy for damages resulting from the assault in question. Thereafter plaintiff retained counsel and the cause went to trial resulting in a judgment for Cooper in the sum of $219.00.
In the proceedings below, each party filed a motion for summary judgment contending that there existed no genuine issue of any material fact, and that each movant was entitled to judgment as a matter of law. The trial court, after considering the pleadings, depositions, and affidavits submitted by the parties, entered summary judgment in favor of the plaintiff.
The defendant contends that the facts presented by the record legally constitute an assault by or at the direction of the insured for which no liability coverage is provided by the insurance policy under consideration.
The plaintiff is the owner and operator of a combination package goods store and bar. Ervin is the general manager of the store and acts as a bartender. Cooper was shaking a cigarette machine within the store when Ervin intervened and an altercation ensued. Cooper then instituted the action for assault and battery which resulted in a judgment against the plaintiff.
From the foregoing, it affirmatively appears that the assault was committed by Ervin acting in his capacity as general manager in the interests of the corporation. The assault therefore may not be considered an accident within the meaning of the insurance policy herein involved. 1
However, the plaintiff asserts that the defendant was estopped to disclaim liability because it undertook the defense of the law suit and investigated the claim for six months before notifying the plaintiff of the disclaimer and withdrawing its defense. The plaintiff also argues that the defendant had a duty to defend the action regardless of its ultimate liability. 2
The policy here under consideration provides that the defendant shall defend any suit against the insured Alleging 'such injury' even if such suit is groundless, false or fraudulent, and, that the company may make such investigation as it deems expedient. This provision conforms with the law in Florida that a public liability carrier's duty to defend the insured is to be determined from the Allegations of the complaint declaration, or other statement of the cause of action filed in a suit against the insured. 3
The complaint filed by...
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