Continental Cas. Co. v. Godur

• Decision Date: 17 September 1985
• Docket Number: No. 83-2728,83-2728
• Citation: 10 Fla. L. Weekly 2164,476 So.2d 242
• Parties: 10 Fla. L. Weekly 2164 CONTINENTAL CASUALTY COMPANY, Appellant, v. Sarah GODUR, Appellee.
• Court: Florida District Court of Appeals

Page 242

476 So.2d 242

10 Fla. L. Weekly 2164

CONTINENTAL CASUALTY COMPANY, Appellant, v. Sarah GODUR, Appellee.

No. 83-2728.

District Court of Appeal of Florida Third District.

Sept. 17, 1985.

Rehearing Denied Oct. 23, 1985.

Talburt, Kubicki, Bradley & Draper and Betsy E. Hartley and Gail Kniskern, Miami, for appellant.

Robey & Pelstring and James Pelstring, Miami, for appellee.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

SCHWARTZ, Chief Judge.

While driving her own automobile in the scope of her employment with Ultimate Shops, Inc., Sarah Godur struck and seriously injured Edward Cades. Cades and his wife sued, among others, Godur, Ultimate Shops, and Ultimate's general liability insurer, Continental Casualty Company. After some preliminary skirmishing on the pleadings, Continental acknowledged its coverage of Ultimate, but denied that Godur was also insured under its policy. Accordingly, it filed a cross-claim for indemnity against Godur to recover any award it might pay on behalf of Ultimate. Prior to trial, Continental settled with the plaintiffs for its $500,000 policy limits and then moved for summary judgment for that amount on its cross-claim against Godur. At the hearing, the trial judge ruled that Godur was not individually covered by the Continental policy, but then, on his own motion and with complete inconsistency, dismissed the cross-claim for indemnity. On this appeal, Continental claims error both in the dismissal and in the failure to grant its summary judgment motion; Godur cross-appeals the no coverage finding. We agree with the carrier's position on each of the issues presented.

There can be no doubt that a liability carrier like Continental is entitled to recover upon an equitably subrogated claim for indemnity against the actual tortfeasor, here, Godur, of the amounts it has paid on behalf of an insured which is only vicariously liable--in this case, Ultimate Shops. Allstate Ins. Co. v. Fowler, 455 So.2d 506 (Fla. 1st DCA 1984); American Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla. 3d DCA 1979). It may not, however, maintain such an action against one of its own insureds. Cole v. Southeastern Fidelity Ins. Co., 469 So.2d 925 (Fla. 3d DCA 1985); Ray v. Earl, 277 So.2d 73 (Fla. 2d DCA 1973), cert. denied, 280 So.2d 685 (Fla.1973). Thus, as everyone agrees, the trial court's dismissal of the indemnity cross-claim may be deemed correct only if its determination that Godur was not covered by the policy was wrong. We conclude, however, that Ms. Godur was indeed not insured by Continental for the accident in question, and thus reverse the dismissal of the action for indemnification.

While the policy, which was issued to Ultimate as the named insured and which insured the entire range of the company's business activities, states that it also insures "[y]our employees while acting in the scope of their duties," it also contains a provision which plainly excludes any coverage of an employee in the present situation. It says:

3. Coverage afforded to your employees does not apply to:

* * *

* * *

c. Personal Injury or Property Damage arising out of any automobile coverage.

Thus, the policy insures Ultimate for any responsibility (all of which, since it is a corporation, is necessarily...