Continental Cas. Co. v. Borthwick

• Decision Date: 27 July 1965
• Docket Number: No. F-490,F-490
• Citation: 177 So.2d 687
• Parties: CONTINENTAL CASUALTY COMPANY, a foreign corporation, Appellant, v. Sherry BORTHWICK, a minor, by Alexander A. Borthwick, her father and next friend, Appellee.
• Court: Florida District Court of Appeals

Page 687

177 So.2d 687

CONTINENTAL CASUALTY COMPANY, a foreign corporation, Appellant, v. Sherry BORTHWICK, a minor, by Alexander A. Borthwick, her father and next friend, Appellee.

No. F-490.

District Court of Appeal of Florida, First District.

July 27, 1965,

Rehearing Denied Aug. 30, 1965.

Alfred A. Green, Jr., Daytona Beach, for appellant.

William E. Loucks, of Law Offices of Wesley A. Fink, Daytona Beach, for appellee.

CARROLL, DONALD K., Judge.

The defendant in an action on its policy of school insurance has appealed from a final judgment entered by the Circuit Court for Volusia County, based upon a jury verdict for the plaintiff.

The basic question for our determination in this appeal is whether at the trial sufficient evidence was presented from which the jury could have lawfully concluded that the plaintiff at the time of her injury was in a group that was 'under supervision of proper authority of the school' as required for liability in the said policy.

The facts are not in dispute. At the time of her injury the plaintiff, Sherry Borthwick, a minor, was a student at Seabreeze Senior High School in Daytona Beach, Florida, and was an insured under a policy issued by the defendant providing what is commonly called 'school insurance.' This policy provides coverage: 'While traveling directly to and from such regularly scheduled and approved school activity with other students of such school as a group, provided such group is at the time under supervision of proper authority of the school, if a student. * * *'

In this appeal the insurer concedes in effect that the evidence of the circumstances surrounding the accident that befell Sherry is sufficient to show her entitlement to recover under the quoted provision of the policy, except that the said evidence is insufficient to show that at the time of the accident her group was 'under supervision of proper authority of the school,' as required in the proviso clause of the abovequoted provision, and hence she cannot be entitled to recover under the policy.

The undisputed facts established by the evidence at the trial and pertinent to the said question whether at the time of the accident Sherry's group was under the required 'supervision,' are essentially as follows:

At the times pertinent to this cause Seabreeze Senior High School had a girls swimming team but no swimming pool and no means of transporting the team to the Welch Pool, a private facility located in the said city, which pool the school customarily used for its water sports activities. The school's swimming coach, who was responsible for the said team, organized a car pool arrangement of the type regularly used as a part of the scheduled athletic program for a number of sports. Usually about four cars were necessary for the girls swimming team, which cars were driven by parents, students, and the coach. While the coach did not direct the exact route which the cars were to take, he did advise the drivers to take the less-traveled streets to the said pool. The drivers of the cars, when not actually members of the team, were considered a part of the team and admitted free to the swimming meets. On the day before such meets, the coach reminded the girls of their responsibility to furnish transportation, urging them to make arrangements as to which car each would ride in, and to drive carefully and go directly to the pool. He did not allow them to stop at any place along the way to the pool except at the homes of certain girls who lived near the school and had obtained his permission to stop at their homes in order to pick up their swimming suits or other articles on the way to the pool.

On the day in question a swimming meet with another high school was scheduled by the Seabreeze Senior High School to be held at the Welch Pool, and the girls swimming team was to participate. Sherry, a member of that team, was driving her father's car, which was one of the automobiles in the above-mentioned car pool, with the consent of the coach. Besides her, five girls were riding in her car, four of them being members of the girls swimming team (two of whom were Sherry's sisters), and the fifth being a student in their school who was not on the team. Sherry's automobile was proceeding directly toward the Welch Pool on the route usually taken. Although the cars carrying members of the girls swimming team did not usually travel together, another of such cars was immediately in front of Sherry's car at the time of the collision between her car and another automobile at a street intersection. As a result of the collision Sherry received serious personal injuries. The swimming coach did not know of the accident until he was advised of it at the Welch Pool.

After the insurer had denied liability under its said policy, Sherry Borthwick, by Alexander A. Borthwick as her father and next friend, filed in the Circuit Court the instant action against the insurer to recover for her injuries under the said policy of school insurance. The case was tried before a jury. The trial court denied the insurer's motion for a directed verdict, and submitted the issues to the jury, which brought in a verdict for the plaintiff in the amount of $4,156.70. Upon the basis of this verdict, the trial court entered a final judgment against the insurer, which then took this appeal from the judgment.

The outcome of this litigation patently turns upon the construction to be given the word 'supervision' in the policy provision quoted above. The appellant herein, the insurer, recognized that the established rule of construction is that insurance policy restrictions are to be construed strictly in favor of the insured and against the insurance company, but the insurer strongly stresses the fact that that rule applies only when the terms of such restrictive provisions are ambiguous. This contention is well made, for, as this court held in O'Brien v. Halifax Ins. Co. of Mass., 141 So.2d 307 (1962):

'In this appeal the plaintiff-appellant invokes the rule that insurance policy restrictions are to be construed in favor of the insured and against the insurance company. That rule is well established, but it is equally well established that this rule applies only where the terms of the restrictive provisions in the policy are ambiguous.'

The appellant here then contends that the word 'supervision' in the policy before us is unambiguous and capable of only one construction, but the appellant does not undertake to define the word 'supervision,' being evidently content to argue that the facts proven in this case do not amount to supervision and that, if supervision means the general supervision such as a school principal has over all school activities, the said policy...