Duncanson v. Service First, Inc.

• Decision Date: 19 November 1963
• Docket Number: No. 63-176,63-176
• Citation: 157 So.2d 696
• Parties: Howard M. DUNCANSON and Mattie Lewis Wilson, Appellants, v. SERVICE FIRST, INC., a Florida corporation, d/b/a Service First Insurance Agency, and American Security Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 696

157 So.2d 696

Howard M. DUNCANSON and Mattie Lewis Wilson, Appellants, v. SERVICE FIRST, INC., a Florida corporation, d/b/a Service First Insurance Agency, and American Security Insurance Company, Appellees.

No. 63-176.

District Court of Appeal of Florida, Third District.

Nov. 19, 1963.

Rehearing Denied Dec. 10, 1963.

Howard M. Duncanson, Hollywood, Henry H. Arrington, Herbert M. Klien, Miami, for appellants.

Blackwell, Walker & Gray and James E. Tribble, Miami, for Service First, Inc.

Dean, Adams, & Fischer and Robert M. Sturrup, Miami, for American Security Ins. Co.

Before CARROLL, TILLMAN PEARSON and HENDRY, JJ.

HENDRY, Judge.

Appellee, Service First, Inc., an insurance agency, brought this action seeking a declaration of its rights and obligations as against the appellants. The appellant, Wilson, had made demand upon Service First to defend her in a personal injury suit instituted against her by appellant, Duncanson, resulting from an automobile collision. Wilson's demand was based on an alleged breach of contract to provide automobile liability insurance coverage. Duncanson claimed to be a third party beneficiary of any insurance coverage which Wilson had. Appellee, American Security Ins. Co., was alleged to be the insurance carrier and was added as a party defendant.

The appellants seek review of a final declaratory decree declaring that Wilson had no liability insurance coverage at the time of her automobile accident and the appellees owed no duty to appellants with regard to the accident in question.

The following facts are undisputed: (1) From November 24, 1959 to November 24, 1960, appellant, Wilson, was insured under an automobile liability policy issued by appellee, Service First, an insurance agency, with appellee, American Security; (2) The authority of Service First to write or renew automobile liability insurance with American Security ceased on January 1, 1960; (3) Shortly before the expiration of the policy, Service First advised Wilson that her policy would expire on November 24, 1960, that her credit was good and she could have 'up to six monthly payments to pay for your new policy'; (4) On November 24, 1960 Service First wrote Wilson that her policy had expired and she could call them to find out the 'cost to re-write your policy'; (5) On November 29, 1960 Wilson went to the office of Service First and gave them $5.00 for which she was given a receipt marked 'partial down payment on renewal'; (6) On January 4, 1961, Wilson was involved in an automobile accident with Duncanson; (7) At the time of the accident no policy had been formally written by Service First covering Wilson; (8) Wilson made additional payments after January 4, 1961 and was issued a policy thereafter in another insurance company.

On final hearing three people testified: Mr. Erwin R. Waite, President of Service First; Mr. John Edward Doig, the General Agent for American Surety; and Wilson. The employee of Service First who spoke to Wilson on November 29, 1960 and gave her the receipt for her $5.00 did not testify.

Mr. Waite confirmed the above mentioned facts and acknowledged that his insurance agency financed most of the policies they wrote, accepting small down payments. Mr Waite stated that he never spoke with Wilson and that one of the employees in his office wrote the $5.00 receipt. Mr. Waite admitted that neither he personally, nor any of his company's letters, advised Wilson that her policy was not going to be renewed in the same company. He further stated that the previous policy was written before the full down payment was received.

Appellant, Wilson, testified that on November 29, 1960 she took her car out of the repair shop, where it had been for about a month, and went to Service First to renew her policy. She stated that she spoke to a lady seated behind a desk and told her that she wanted to renew her policy but only had $5.00; the lady said, 'she would accept the $5.00 on my renewal and I could go ahead'. Wilson went on to say, 'She accepted the $5.00 on my renewal and told me I could go ahead on to work and not to worry'. Wilson was never told how long she had to pay the balance.

Mr. Doig testified Service First had no authority to write or renew liability policies with American Security after January 1, 1960.

Giving the final declaratory decree the presumption of correctness to which it is entitled, we nevertheless hold that the findings of the chancellor with respect to the liability of appellee, Service First, to Wilson are against the manifest weight of the evidence and that portion of his decree must be reversed. ¹

Service First never denied that the person who accepted Wilson's $5.00 and issued her a receipt was its agent and had authority to act on its behalf. The receipt was for 'partial payment on renewal'. It was the established policy of Service First to extend credit to those who purchased insurance through it and it had previously written Wilson stating that her credit was good and she could have 'up to six monthly payments to pay for your policy'. Her previous policy had been written upon receipt of a partial down payment. Upon the payment of $5.00 and the employee's assurance of coverage, Wilson had every reason to expect that her coverage would commence immediately. ² There was no testimony that she had been advised to the contrary.

The fact that there was no agreement reached as to the amount of the premium and when future payments were to be made, does not preclude recovery. Nor does the fact that no specific insurance company was designated relieve the broker of...