Delgado v. Strong

• Decision Date: 08 June 1978
• Docket Number: No. 52304,52304
• Citation: 360 So.2d 73
• Parties: Hortensio DELGADO and Nellie Geraldine Delgado, his wife, Petitioners, v. Robert R. STRONG and Julie Y. Strong, his wife, Respondents.
• Court: Florida Supreme Court

Page 73

360 So.2d 73

Hortensio DELGADO and Nellie Geraldine Delgado, his wife, Petitioners, v. Robert R. STRONG and Julie Y. Strong, his wife, Respondents.

No. 52304.

Supreme Court of Florida.

June 8, 1978.

Rehearing Denied July 25, 1978.

Kenneth G. Stevens of Dale & Stevens, Fort Lauderdale, for petitioners.

James W. Knight, Jr. of Huebner, Shaw & Bunnell, and Nancy Little Hoffmann, Fort Lauderdale, for respondents.

SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Fourth District, reported at 348 So.2d 56, which is alleged to be in conflict with Westerman v. Shell's City, Inc., 265 So.2d 43 (Fla.1972), the latter case setting forth the rule that an appellate court may not substitute its judgment for that of a trial court by reevaluating the evidence. Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

For the reasons hereinafter enunciated we quash the decision of the District Court of Appeal, Fourth District.

The facts of this case are reflected in the trial judge's recitation of the evidence introduced at a hearing on petitioners' complaint to foreclose a mortgage against respondents:

This cause raised the issue as to the rights of a mortgagee (petitioners) to accelerate a mortgage by reason of the failure of the mortgagor (respondents) to obtain insurance, deliver the policy to the mortgagee, and/or communicate to the mortgagee the status of mortgagor's efforts in obtaining and delivery of insurance. The facts, as revealed by the testimony and exhibits introduced, show that the mortgagors purchased a parcel of industrial property from the mortgagees in August, 1973, and that thereafter said premises were not insured as required by the terms of the mortgage until March 14, 1974. The evidence discloses that the mortgagors were unaware of their duty to insure or the fact it was not insured until approximately March 8, 1974, when plaintiffs' attorney advised the mortgagors that they were in default and that they did not have insurance currently in force. At this time mortgagors obtained the first policy of insurance, effective March 14, 1974. In the early part of May, 1974, the mortgagors and the mortgagees both received a Notice of Cancellation of the March 14, 1974 policy, which notice of cancellation became effective at noon on May 30, 1974. In early May, Mortgagors consulted the Coral Ridge Insurance Agency and requested such agency to write a new policy on the subject property. An application and letter requesting insurance were prepared and forwarded to the insurance carrier, which application requested the insurance effected May 31, 1974. The mortgagors offered testimony that an "oral binder" was issued effective May 30, 1974. On June 7, 1974, the plaintiff mortgagees consulted with their attorney and as a result caused this suit to be filed on June 13, 1974, alleging that a breach of the mortgage had occurred by reason of the defendants failing to provide insurance in accordance with the mortgage agreement and accelerating the balance of the mortgage. On June 14, 1974, the plaintiffs, not being aware of the alleged "oral binder" from Coral Ridge Insurance Agency, obtained their own insurance at a net cost of $200.00 (after credit for return of the premium after cancellation of the foregoing policy). On July 12, 1974, the Coral Ridge Insurance Agency was advised by telephone that Aetna Insurance Company, to whom the application had been made, would not write the policy because the application did not cover and the defendants did not wish to insure the personalty on the subject property. This telephone conversation was subsequently confirmed by letter from Aetna Insurance to Coral Ridge Insurance Agency dated July 15, 1974.

Service of process on the defendants was obtained in this cause by an elisor on August 7, 1974. On August 7, 1974, the Coral Ridge Insurance Agency wrote a letter to the plaintiffs advising that they were covered by a binder and that Aetna Insurance Company would issue the policy of insurance "very shortly," notwithstanding the fact that Aetna by its letter of July 15, 1974, had already declined to write the coverage and considered the matter a "closed issue." On August 23, 1974, Coral Ridge Insurance Agency requested coverage by New York Central Mutual Fire Insurance Company, as a result of which an insurance policy was delivered to the plaintiffs on November 14, 1974, with coverage commencing May 31, 1974, at noon Standard Time.

Based upon the foregoing, the trial court made the following findings:

1. A technical default occurred by the failure of the defendants (respondents) to insure the subject property from noon May 30, 1974 to noon May 31, 1974.

2. It was the duty and burden of the defendants to obtain insurance and to deliver some written evidence of such insurance, in the form of a binder or policy to the plaintiffs (petitioners) as of May 30, or at least within a reasonable time thereafter.

3. The evidence is undisputed that between May 30, 1974 and June 13, 1974 (the date on which suit was filed), the defendants failed to communicate the existence of the alleged "oral binder" to the plaintiffs, nor was a copy of same ever reduced to writing by Coral Ridge Insurance Agency. Such failure constitutes a breach of the defendants' obligation under the mortgage to furnish a policy of insurance "to be held by, and payable to,...