Dick Courteau's GMC Truck Co. v. Comancho-Colon, COMANCHO-COLO

• Citation: 498 So.2d 1023,12 Fla. L. Weekly 11
• Decision Date: 12 December 1986
• Docket Number: Nos. 86-322,F,86-1501,COMANCHO-COLO,s. 86-322
• Parties: 12 Fla. L. Weekly 11 . Santolorida Farm Bureau Insurance Company, and Chester A. Mayer, formerly on Behalf of National General Insurance Company, Appellees. VENICE ISLE DODGE, INC., and Universal Underwriters Insurance Company, Appellants, v. Kathleen DESQUESNES, Elbert Barrett, Emily Barrett, and Allstate Insurance Company, Appellees. District Court of Appeal of Florida, Second District
• Court: Court of Appeal of Florida (US)

Page 1023

498 So.2d 1023

12 Fla. L. Weekly 11

DICK COURTEAU'S GMC TRUCK COMPANY and Universal Underwriters Insurance Company, Appellants, v. Santo COMANCHO-COLON, Florida Farm Bureau Insurance Company, and Chester A. Mayer, formerly on Behalf of National General Insurance Company, Appellees.

VENICE ISLE DODGE, INC., and Universal Underwriters Insurance Company, Appellants, v. Kathleen DESQUESNES, Elbert Barrett, Emily Barrett, and Allstate Insurance Company, Appellees.

Nos. 86-322, 86-1501.

District Court of Appeal of Florida,

Second District.

Dec. 12, 1986.

Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller & Lamb, P.A., St. Petersburg, for appellants.

Claire L. Hamner and James R. Cooney of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellees Santo Comancho-Colon, Florida Farm Bureau Ins. Co., and Allstate Ins. Co.

GRIMES, Acting Chief Judge.

These consolidated appeals involve disputes over coverage between the insurance carriers for codefendants.

The point on appeal is the same in both cases. Essentially, motor vehicle dealers had loaned vehicles to drivers who became involved in accidents with third parties. There was no agreement between the dealers and the drivers concerning insurance coverage. In each case, a negligence action was brought against the driver, and the dealer, as the owner of the vehicle, was joined as a defendant under the dangerous instrumentality doctrine. The dealers and their liability insurer, Universal Underwriters Insurance Company (Universal), sought indemnification against the drivers and their respective liability insurance carriers, Farm Bureau Insurance Company (Farm Bureau) and Allstate Insurance Company (Allstate). The plaintiffs obtained judgments against all defendants, and the court ruled in favor of the drivers and their insurance carriers on the claims for indemnification. The dealers and Universal brought these appeals which were consolidated upon joint motion of the parties.

An owner of a motor vehicle who is liable only vicariously to a third person because of a motor vehicle accident is entitled to recover from the driver of the vehicle if he is the active tort-feasor. Hertz Corp. v. Richards, 224 So.2d 784 (Fla. 3d DCA 1969). However, an insurance company may not seek indemnity from its own insured. Allstate Insurance Co. v. Fowler, 480 So.2d 1287 (Fla.1985). Therefore, the question in these cases is whether the respective drivers were insureds under the motor vehicle dealers' policies written by Universal.

For purposes of this appeal, the policies involved in each case are identical. The printed portion sets forth the coverage for auto physical damage (part 300), property (part 330), crime (part 380), garage insurance (part 500), basic auto insurance (part 900), general liability insurance (part 950), personal umbrella (part 970), and umbrella (part 980). The two parts dealing with motor vehicle liability coverage are the garage insurance and the basic auto insurance. Universal explains that under its specialized policy for motor vehicle dealers, the garage insurance covers vehicles which come and go through the dealer's hands by way of resale, while the basic auto insurance covers other vehicles held for longer periods of time, such as courtesy vans or automobiles used by officers of the dealership or their families. Universal concedes that the vehicles involved in the accidents in these cases were covered under the garage insurance part of the policy, thereby satisfying all requirements of the financial responsibility laws. Because of the narrow definition of insured under garage insurance, Farm Bureau and Allstate make no contention that the drivers were covered under that part of the policy. Farm Bureau and Allstate argue that the drivers were covered under the basic auto insurance part of the policy because that part defines an insured to include "any other person using an OWNED AUTO" within the scope of the named insured's permission. Universal responds by referring to the...