Financial Fire & Cas. Co. v. Callaham, 7373

• Decision Date: 26 May 1967
• Docket Number: No. 7373,7373
• Citation: Financial Fire & Cas. Co. v. Callaham, 199 So.2d 529 (Fla. App. 1967)
• Court: Florida District Court of Appeals
• Parties: FINANCIAL FIRE & CASUALTY COMPANY, Appellant, v. Mary L. CALLAHAM, Appellee.

Page 529

199 So.2d 529

FINANCIAL FIRE & CASUALTY COMPANY, Appellant, v.Mary L. CALLAHAM, Appellee.

No. 7373.

District Court of Appeal of Florida, Second District.

May 26, 1967.

Rehearing Denied June 29, 1967.

Allen, Dell, Frank & Trinkle, Tampa, for appellant.

Pope & Burton, Tampa, for appellee.

MAXWELL, OLIVER C., Associate Judge.

This is an appeal from a summary judgment entered in behalf of the plaintiff-insured upon complaint, motion for summary judgment by both parties, affidavits and counter-affidavits, in a suit for declaratory decree to construe a comprehensive liability insurance policy issued to appellee by appellant.The policy, a copy of which is attached to the complaint, listed the named insured and address as: 'Mary L. Callham d/b/a Camp Whip-O-Will and Carroll Wood Kindergarden, 10417 Lake Carroll Way, Tampa, Florida.'Under locations of all premises owned, rented or controlled by named insured was '(1) Camp Whip-O-Will, Pasco County, Florida, (2) Carrollwood Kindergarden, Tampa, Florida.'The policy stated that only those coverages or charges were available and advanced premium charges were made for the following coverages: (A)'Bodily injury liability--Automobile, Automobile, $171,00; (B) Bodily injury liability--Except Automobile, $242.00; (C) Property Damage Liability--Automobile, $48.00; (d) Property Damage Liability--Except Automobile, $21.00;' and under the title 'Form numbers of endorsements attached to policy at issue (listing several numbers) $48.00, making the total advance premium $530.00.The following provisions were contained in the section entitled 'Insuring Agreements':

'Coverage B--Bodily Injury Liability--Except Automobile; To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bidily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.

'Coverage C--Property Damage Liability--Automobile: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of any automobile.

'II.Defense, Settlement, Supplementary Payments: With respect to such insurance as is afforded by this policy, the company shall:

(a) Defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.'

The policy was dated June 15, 1964.An endorsement was issued on August 1, 1964, Endorsement BE 16a reads as follows:

'In consideration of a return premium of $135.88, it is hereby understood and agreed the 1949 International School Bus is deleted from coverage under the captioned policy.

'It is further understood and agreed Day Camps, Saddle Animals and Swimming Activities are deleted from the OL&T Schedule (L--6973A).

'All other terms and conditions of this policy remain unchanged.'

After the last mentioned endorsement was issued, certain horses kept by the appellee-insured permanently on the premises in Pasco County escaped the enclosure in which they were maintained and were struck on the highway by two different motor vehicles, as a result of which two separate law suits were filed against appellee claiming damages for personal injuries.Appellant- insurer refused to defend the cases and denied coverage under the insurance policy and appellee filed suit for declaratory decree.

The plaintiff(appellee) filed motion for summary judgment supported by her affidavit.

Appellant also filed motion for summary judgment supported by affidavit of the agent who handled the transaction and appellee filed a counter-affidavit.

The appellee's affidavit discloses that she rented, leased or purchased certain saddle horses for the camping season only and that she owned and maintained on the premises at all times several horses for nature study which were kept at the Pasco premises year around regardless of the day camp season which was known to the insurer.This portion of the affidavit is not contradicted.Appellee states that she wished year around coverage on the Pasco property, as distinguished from the camp activities, and relied upon the superior knowledge of the insurer to furnish her she same.While there may be inferences of a conflict in her specific language with the insurer's affidavit on this point, the insurer's affidavit nowhere specifically states that the appellee sought a cancellation of the coverage on the Pasco property.The language in the insurer's affidavit that 'following the issuance of the endorsement, there was no coverage remaining for the camp Premises in Pasco County'(italics supplied) is patently a mere interpretation of the affiant unconnected with any sworn statement of what the appellee told him.In other words, it is simply the insurance agent's interpretation of the policy.

Upon this record the trial judge entered a summary judgment for the appellee holding that there was ambiguity in the exclusionary endorsement, when considered in connection with the policy as a whole.The Court pointed out that the appellee was not skilled or learned in insurance matters, explained her entire operation to the agent of the insurance company and relied upon his good judgment in purchasing insurance coverage.The Court also stated:

* * * 'The Plaintiff contends that she is not skilled or learned in insurance matters and that she explained her entire operation to the agent of the insurance company and relied upon him and upon his good judgment and...