Fireman's Fund Ins. Co. v. Vogel

• Decision Date: 08 February 1967
• Docket Number: No. 7019,7019
• Parties: FIREMAN'S FUND INSURANCE COMPANY, a corporation, Appellant. v. Ralph F. VOGEL and Ethel B. Vogel, husband and wife, and J. Gerald Murphy, Appellees.
• Court: Florida District Court of Appeals

Page 20

195 So.2d 20

FIREMAN'S FUND INSURANCE COMPANY, a corporation, Appellant. v. Ralph F. VOGEL and Ethel B. Vogel, husband and wife, and J. Gerald Murphy, Appellees.

No. 7019.

District Court of Appeal of Florida, Second District.

Feb. 8, 1967.

Joseph W. Bradham, of Ramseur, Bradham, Lyle & Skipper, St. Petersburg, for appellant.

Robert L. Williams, of Earle & Williams, St. Petersburg, for appellee Murphy.

James M. McEwen of Gibbons, Tucker, McEwen, Smith & Cofer, Tampa, for appellees Vogel.

LILES, Judge.

Appellant, garnishee below, brings this appeal from a summary final judgment entered by the trial court in favor of appellees.

It appears that in May of 1959 plaintiffs suffered injury in an automobile collision with one John L. Doyle. Plaintiffs retained defendant attorney to represent them and to file suit against Doyle. Doyle died on July 5, 1961, but defendant failed to file a claim on behalf of plaintiffs against Doyle's estate within the statutory period. He filed suit on plaintiffs' behalf in May of 1962, but this suit was dismissed with prejudice on July 16, 1962 for failure to file a claim against Doyle's estate. Plaintiffs thereafter secured the services of another attorney who ultimately filed a malpractice suit against defendant. Plaintiffs secured a final judgment against defendant in that suit and brought garnishment proceedings against appellant insurance company, who was defendant's malpractice insurance carrier. Appellant answered that it was not liable as defendant had breached the terms of his insurance contract. The trial judge entered final summary judgment finding that the loss sustained by defendant in the malpractice suit was covered by his insurance policy with appellant company and that the conduct of appellant's agents constituted a waiver by appellant to deny coverage '* * * in the event that its insured committed a breach of the terms of said insurance policy * * *.' The trial judge made no determination as to whether defendant breached the terms of the policy.

The issue to be determined on appeal is whether the pleadings, affidavits, depositions, exhibits and other papers on file show conclusively that there is no genuine issue of material fact to be tried. Holl v. Talcott, 191 So.2d 40 (Fla.1966). More precisely the question is whether the record conclusively shows that appellant waived its right to deny coverage.

In its answer, appellant alleged in essence that defendant attorney had failed to comply with Condition 3 of the insurance policy which provided in part:

'3. Notice of Claim or Suit. Upon the insured becoming aware of any act or omission which might reasonably be expected to be the basis of a claim or suit covered hereby, written notice shall be given by or no behalf of the insured to the company or any of its authorized agents as soon as practicable, together with the fullest information obtainable. * * *'

The record reflects that the personal injury action against the estate of John L. Doyle filed by defendant was dismissed on July 16, 1962 for failure to comply with § 733.16, Fla.Stats., F.S.A. In August of 1962, defendant contacted by telephone the agent through whom he had obtained his malpractice insurance with appellant to inquire if the policy was still in force. Upon being told that it was, defendant asked for an endorsement to show a change of address and requested a duplicate copy of the policy. Defendant claimed in his affidavit that when he received a copy of the policy, he advised the agent of the possibility of a claim against him. The agent denied this, stating that he first became aware of the possibility on November 21, 1962.

In the meantime, plaintiffs had secured the services of another attorney to represent them as against defendant. This attorney advised defendant of this fact, by letter, on September 8, 1962. Plaintiffs' attorney suggested that defendant contact his insurance carrier and permit plaintiffs' attorney to have an appointment with defendant and his carrier. Throughout the letter part of September and the month of October, 1962, there was a series of letters and telephone calls in an attempt to set up an oppointment between plaintiffs' attorney and defendant, apparently to no avail.

On November 21, 1962, appellant's agent wrote a letter to appellant stating briefly that 'I have had a brief message that Mr. Murphy (defendant) may incur a claim due to late filing of some papers.' On December 10, 1962, this same agent wrote a letter to defendant apologizing for the delay in getting an adjuster to him because 'I failed to realize that this was an immediate claim situation.' The agent informed defendant that a private adjuster, one George Hannaman, would be handling the claim.

Hannaman sent a Notice of Loss to appellant company on December 13, 1962. This report stated that the actual date of loss was unknown. In describing the loss, Hannaman stated:

'Reported by the insured's secretary, one Barbara Lucas, that the insured's client, one Ralph Vogel and wife, filed claim against the estate of John Doyle for injuries and property damage sustained in an automobile accident and that the insured lawyer, acting in their behalf, failed to file suit within the statutory period required by Florida State Law.

'The above information is sketchy in that we have left word with Mr. Murphy to call us and arrange an appointment but up to date he has failed to comply with our request. We felt, however, this report should be submitted in order that you may create a file. * * *'

Hannaman wrote defendant on January 2, 1963 stating that since December 10, 1962, he had called defendant's office at least four times, had talked with his secretary, and had asked that defendant return the calls. The letter further stated that:

'* * * To date we have received no communication from you either verbal or written in this regard. Perhaps you do not wish to call upon the...