General Agents Ins. Co. of America v. Boehm

• Decision Date: 16 June 1993
• Docket Number: Nos. 91-3412,92-0495,s. 91-3412
• Citation: 620 So.2d 227
• Court: Florida District Court of Appeals
• Parties: 18 Fla. L. Week. D1431 GENERAL AGENTS INSURANCE COMPANY OF AMERICA, Appellant, v. Robert C. BOEHM and Nereida Boehm, his wife, Marcus Pearce and David Yarborough, Appellees.

Page 227

620 So.2d 227

18 Fla. L. Week. D1431

GENERAL AGENTS INSURANCE COMPANY OF AMERICA, Appellant, v. Robert C. BOEHM and Nereida Boehm, his wife, Marcus Pearce and David Yarborough, Appellees.

Nos. 91-3412, 92-0495.

District Court of Appeal of Florida,

Fourth District.

June 16, 1993.

Richard T. Woulfe of Bunnell, Woulfe & Keller, P.A., and Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, for appellant.

Mary Jo Meives and Leonard Robbins of Abrams, Anton, Robbins, Resnick & Schneider, P.A., Hollywood, for appellees.

WARNER, Judge.

This is an appeal from a final summary judgment which determined that an excess policy issued by appellant insurance company provided liability for a vehicle involved in an automobile accident. Because the trial court erred in its construction of the insurance policy involved and its conclusion as to the absence of factual issues, we reverse and remand.

The appellees were injured in an auto accident in Florida by a person driving a vehicle titled in the name of David Yarborough. While there is a material issue of fact as to whether the vehicle was owned by Yarborough at the time of the accident, for purposes of this analysis we will ignore this conflict and treat it as though he were the owner. ¹ Yarborough had a primary insurance policy with American General Insurance Company. The trial court found that this was a fleet policy which covered "any owned vehicle." Again, there appears to us to be a material issue of fact in this determination, but again for purposes of this analysis, we will not dispute this finding. Appellant's policy of insurance was excess over the primary policy. Contrary to the trial court's findings, appellant's policy provided that:

The insurance afforded is only with respect to such of the following coverages as are indicated by specific premium charge or charges but such coverages shall not apply with respect to any automobile owned by the named insured unless (1) such automobile is described above ... and (2) a specific premium charge for such automobile is entered.

Appellant also submitted an affidavit that the policy was a scheduled vehicle policy and that the vehicle in question had been deleted from the policy by the insured.

The trial court relied upon another provision of the excess policy to extend coverage. That section states:

The provisions of the immediate underlying policy are incorporated as a part of this policy except for any obligations to investigate...