EMPLOYERS'LIABILITY ASSUR. CORP. v. ROYALS FARM SUP., INC.

• Decision Date: 02 June 1966
• Docket Number: No. 5778-5782.,5778-5782.
• Citation: 186 So.2d 317
• Parties: The EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Ltd., Appellant, v. ROYALS FARM SUPPLY, INC., Appellee. FIDELITY PHENIX INSURANCE COMPANY, Appellant, v. ROYALS FARM SUPPLY, INC., Appellee. NETHERLANDS INSURANCE COMPANY, Appellant, v. ROYALS FARM SUPPLY, INC., Appellee. NEW YORK UNDERWRITERS INSURANCE COMPANY, Appellant, v. ROYALS FARM SUPPLY, INC., Appellee. SOUTHERN GENERAL INSURANCE COMPANY, Appellant, v. ROYALS FARM SUPPLY, INC., Appellee.
• Court: Florida District Court of Appeals

186 So.2d 317

The EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Ltd., Appellant, v. ROYALS FARM SUPPLY, INC., Appellee.

FIDELITY PHENIX INSURANCE COMPANY, Appellant, v. ROYALS FARM SUPPLY, INC., Appellee.

NETHERLANDS INSURANCE COMPANY, Appellant, v. ROYALS FARM SUPPLY, INC., Appellee.

NEW YORK UNDERWRITERS INSURANCE COMPANY, Appellant, v. ROYALS FARM SUPPLY, INC., Appellee.

SOUTHERN GENERAL INSURANCE COMPANY, Appellant, v. ROYALS FARM SUPPLY, INC., Appellee.

Nos. 5778-5782.

District Court of Appeal of Florida. Second District.

May 11, 1966.

Rehearing Denied June 2, 1966.

Law Offices of George J. Baya, Miami, for appellants.

Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.

WEHLE, VICTOR O., Associate Judge.

Summary judgment was entered for the plaintiff in seven suits consolidated for trial and involving similar insurance policies issued by the seven defendants on real and personal property against which the plaintiff held three mortgages totaling over $90,000.00. The insured property, a building and its contents in Immokalee owned by Horseshoe, Inc., a Florida corporation, and used as a restaurant, bar, package store and apartment, was destroyed by fire on July 10, 1962. It was insured by seven different companies for various sums between $4,000.00 to $5,000.00 on the building and $2,000.00 to $2,500.00 on the contents, which policies totaled $30,000.00 on the building and $15,000.00 on the contents.

The owner of the building made no claim on the policies and within sixty days of the fire claims were made by the plaintiff as mortgagee.

The plaintiff and the insurers engaged in lengthy negotiations as to the filing of proofs of loss and as to the proposed types of assignment of the various mortgages to the insurers upon payment of the plaintiff's claims. Under the policies, the insurers had sixty days after they were furnished proof of loss to pay any claims and would not be liable for interest until after the sixty days. Hanover Fire Ins. Co. v. Lewis, 28 Fla. 209, 10 So. 297. The plaintiff claimed that filing proof of loss was waived by an agent of the insurers on September 20, 1962, although the plaintiff did later file a proof of loss on February 19, 1963.

The plaintiff and the insurers could not agree on the terms of the filing of proofs of loss nor on the terms of the assignments of the mortgages. On March 6, 1963, the insurers for the first time advised the plaintiff of their contention that the mortgage clauses of the policies did not insure the mortgages as to the contents of the building, but only as to the building itself.

The plaintiff for many months had been demanding payment and threatening suit. No firm offer was made by the insurers until July 3, 1963, when they offered the plaintiff's attorney "to pay the total sum of $30,000.00 to your client" upon the execution of certain assignments of the various mortgages. The plaintiff filed suit on July 26, 1963.

The Court granted summary judgment in favor of the plaintiff for principal sums totaling $30,000.00, interest of $3,364.14 from November 20, 1962 (sixty days after the alleged waiver of proof of loss), attorney's fees totaling $3,700.00 and costs totaling $140.00, and later an individual final judgment against each insurer for its share of these sums. The insurer-defendants assign as error the allowance of interest and the award of attorney's fees and Court costs. The plaintiff cross-assigns error in the ruling that the mortgage clauses in the policies covered the mortgagee solely on its interest in the building and not on its interest in the contents. We shall first consider the cross-assignment.

Each policy stated on the first page "Mortgage Clause: Subject to the provisions of the mortgage clause attached hereto, loss, if any, on building items, shall be payable to" the mortgagee. (Emphasis supplied.) The renewal certificates on the policies and the title endorsements thereto, after describing the insurer's right under subrogation, concluded with the following statement:

"The above Mortgagee Clause DOES NOT apply to personal property." (Emphasis as in the original policies)

The plaintiff's mortgages covered both the real property and the building contents and the plaintiff claims that, under the circumstances, any ambiguities in the policies should be construed against the insurers and thereby entitle the mortgagee to recover for the contents loss as well as the building loss.

If the policy provisions were ambiguous, the plaintiff would be correct in its contention, but we find no ambiguity in the policies. The policies obviously did not extend the contents insurance for the benefit of the mortgagee and the trial Court properly denied recovery by the mortgagee under the contents clause. Clarke v. Real, 105 Pa.Super. 102, 159 A. 454; Spangler v. Union National Mount Joy Bank, 125 Pa.Super. 31, 189 A. 541; Miller v. Gibbs, 108 App.Div. 103, 95 N.Y.S. 385; 18 Fla.Jur. 91; 5 Appleman Insurance Law & Practice 572.

In so ruling, we are not passing upon the possible right of the mortgagee to have secured from the insured an assignment of the insured's right to collect on the contents of the building, nor upon the possible right of the mortgagee to...