Gilbert v. American Cas. Co. of Reading, Pa., 68--350

• Court: Florida District Court of Appeals
• Writing for the Court: HENDRY
• Citation: Gilbert v. American Cas. Co. of Reading, Pa., 219 So.2d 84 (Fla. App. 1969)
• Decision Date: 18 February 1969
• Docket Number: No. 68--350,68--350
• Parties: Larry GILBERT, Trustee in Bankruptcy of Juvenile World, Inc., Bankrupt, Appellant, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Appellee.

Page 84

219 So.2d 84

Larry GILBERT, Trustee in Bankruptcy of Juvenile World, Inc., Bankrupt, Appellant, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Appellee.

No. 68--350.

District Court of Appeal of Florida, Third District.

Feb. 18, 1969.

Rehearing Denied March 12, 1969.

Leo M. Alpert, Miami, for appellant.

Knight, Underwood, Peters, Hoeveler & Pickle, Miami, for appellee.

Before BARKDULL, HENDRY and SWANN, JJ.

HENDRY, Judge.

The appellant was the plaintiff below and appeals from a final judgment of the circuit court which was rendered pursuant to the defendant-appellee's motion for summary judgment. The defendant had issued to Juvenile World, Inc., a storekeeper's liability policy which provided for coverage for any sums which the insured might become legally obligated to pay as damages because of bodily injury suffered by any person arising out of the ownership, maintenance or use of the insured's premises. Coverage was conditioned, however, on the following 'no action' provision which set forth the insured's obligation:

'6. Action against company.

'Coverage.

'No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company * * *.'

The construction of this no-action provision is the focal point of this case, as the following facts, all stipulated to by the parties, have raised certain issues of law in regard thereto.

Plaintiff-appellant is presently the Trustee in Bankruptcy of Juvenile World, Inc., and as such is vested with the assets and causes of action of that corporation. On or about February 20, 1961, while the above mentioned storekeeper's liability insurance policy was in full force and effect, a nine-year old minor, Rodney Kostoff, was allegedly injured when a toy device called a 'smoke pot' which he purchased from Juvenile World, Inc., ignited while being carried in the youth's hip pocket. Within several days of the accident, the boy's father told one of the officers of Juvenile World, Inc., about the occurrence, but in a jocular and conversational manner. This officer, after considering the nature of his conversation with Rodney's father, concluded that the incident was not an 'accident' or 'a claim' requiring notification to the insurance company as per the policy's no-action provision, supra, and therefore did not report the incident to the insurance company at that time. Then, almost three months later, Juvenile World, Inc., received a notice of claim letter from the Kostoffs' attorney dated May 10, 1961. This letter was forwarded to the appellee about five days later thereby giving it first notice of Rodney Kostoff's accident within three months of occurrence. On June 5, 1961, the appellee refused to defend the Kostoff claim or perform any of its contractual obligations; its ground for such refusal was that the insured had violated its contractual obligation to give the company notice of the accident and notice of the claim as soon as practicable.

The...