Griffin v. Speidel, 33920
| Decision Date | 03 November 1965 |
| Docket Number | No. 33920,33920 |
| Citation | 179 So.2d 569 |
| Parties | Theima GRIFFIN, individually and Theima Griffin, as executrix of the Estate of James William Griffin, Plaintiff-Petitioner, v. Samuel SPEIDEL, d/b/a Speidel's Furniture, Defendant, Shelby Mutual Insurance Company, Garnishee-Respondent. |
| Court | Florida Supreme Court |
Fleming, O'Bryan & Fleming and Ronald FitzGerald, Fort Lauderdale, for petitioners.
Carey, Terry, Dwyer, Austin, Cole & Stephens and L. Fred Austin, Fort Lauderdale, for respondents.
In this petition for certiorari, the petitioner, Thelma Griffin, contends that the decision of the District Court of Appeal, Second District, reported as Griffin v. Speidel, Fla.App.1964, 167 So.2d 882, is in conflict with the decision of this court in National Surety Corporation v. Windham, Fla.1954, 74 So.2d 549. We find conflict between these decisions. Although, the principal conflict arises out of obiter dictum in the latter case, such is, nevertheless, adequate to invoke this court's certiorari jurisdiction. Sunad, Inc. v. City of Sarasota, Fla.1960, 122 So.2d 611; Shell v. State Road Department, Fla.1961, 135 So.2d 857.
The facts of this cause are reflected in the district court's opinion. We will not repeat them here.
The question for decision is whether the policy of automobile liability insurance written by the respondent insuror for Samuel Speidel, decedent Griffin's employer, does or does not afford Speidel coverage, or indemnification, for liability arising out of Griffin's death. More specifically, the question is whether that clause in the policy excluding coverage for the insured's employees, or employment by him, excludes coverage for injury or death of a casual or incidental employee, as distinguished from a regular employee. The trial court and the district court held that it did.
In the opinion before us for review the district court rejected Mrs. Griffin's contention that the judgment of the trial court was contrary to the decision of this court in National Surety Corp., supra, in which case, by way of obiter dictum, it was said that:
'Only regular employees as distinguished from casual or incidental employees, are within the exclusion clause of the insurance contract.'
In addition to its rejection of this statement from the National Surety Corp. case as authority because it was mere dictum, the district court also concluded that the exclusionary clause involved there was distinguishable, in that it contained no language comparable to section 2 of the clause involved herein. We disagree. While it is true that the exclusion clauses involved in National Surety Corp. and in this case differ in grammatical construction, their meaning and legal effect is precisely the same: to exclude from coverage all employees of the insured other than domestic employees not covered by workmen's compensation.
The result is that we have in the appellate jurisprudence of this state two decisions involving exclusion clauses of identical legal effect, which decisions contain directly opposite interpretations of the effect of said clauses as they relate to incidental or casual employees. We must resolve this conflict by determining whether such employees are or are not excluded from coverage by such an exclusion clause.
The exclusion clause in the National Surety Corp. case reads as follows:
'This policy does not apply: * * * (d) under coverages A & C, to bodily injury to or sickness, disease or death of any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen's compensation law * * *'.
The clause in the instant policy is arranged somewhat differently and reads:
'This policy does not apply: '* * *
'(d) under Coverage A, to bodily injury to...
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