Hartford Acc. and Indem. Co. v. Kellman
| Citation | 375 So.2d 26 |
| Decision Date | 11 September 1979 |
| Docket Number | Nos. 78-1367,78-1381 and 78-1385,A-C,s. 78-1367 |
| Parties | HARTFORD ACCIDENT AND INDEMNITY COMPANY and Royal Palm Beach Colony, Inc., Patriot General Insurance Company, Middlesex Insurance Company, and Gulfstream Lease-ar Co., Appellants, v. Rita Ann KELLMAN and Jack Kellman, Mary Brady, et al., Appellees. CONTINENTAL CASUALTY COMPANY, Appellant, v. Rita Ann KELLMAN, Jack Kellman and Mary Brady, et al., Appellees. |
| Court | Florida District Court of Appeals |
Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O'Hara and Richard A. Sherman, Miami, for Hartford and Royal.
Peters, Pickle, Flynn, Niemoeller, Stieglitz & Hart, Jeanne Heyward, Miami, for Continental.
Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Michael K. McLemore, Miami, for Gulfstream, Patriot & Middlesex.
Before PEARSON, HENDRY and BARKDULL, JJ.
These consolidated appeals are from a final judgment on a number of insurance company cross-claims. The final judgment set out the priority of six separate policies issued by four insurance companies and thus determined the order of the responsibility for payment of the judgment received by the injured plaintiff. The happy circumstance is that the injured party has received payment, and the unhappy circumstance is that the insurance companies are now contending with one another over their respective rights under their policies. 1
The trial judge entered a judgment on the cross-claims as follows:
"1. On the claims of the Plaintiffs against the Codefendants, HERBERT LARRY KAPLAN, ROYAL PALM BEACH COLONY, INC., and GULFSTREAM LEASE-A-CAR COMPANY, the coverage limits of the insurers are available in the following order of priority:
a) ALLSTATE INSURANCE COMPANY affords the primary insurance coverage in the amount of its limits of $100,000 per person/$300,000 per accident;
b) HARTFORD ACCIDENT AND INDEMNITY COMPANY affords the second layer of insurance coverage in the amount of its limits of $100,000 per person/$300,000 per accident;
c) PATRIOT GENERAL INSURANCE COMPANY affords the third layer of insurance coverage in the amount of its limits of $100,000 per person/$300,000 per accident d) CONTINENTAL CASUALTY COMPANY affords the fourth layer of insurance coverage under its policy issued to HERBERT LARRY KAPLAN in the amount of its single limit of $1,000,000;
e) CONTINENTAL CASUALTY COMPANY affords the fifth layer of insurance coverage under its policy issued to ROYAL PALM BEACH COLONY, INC., in the amount of its single limit of $2,000,000;
f) The AMERICAN HOME ASSURANCE COMPANY affords the sixth layer of insurance coverage in the amount of its single limit of $3,000,000;
g) MIDDLESEX MUTUAL INSURANCE COMPANY affords the seventh layer of insurance coverage in the amount of its single limit of $1,000,000."
All of the insurance companies except Allstate have appealed and assigned different reasons that the finding of the trial judge was wrong as a matter of law. The unfortunate circumstance on such an appeal is that there is no appellee presenting the law which supports the trial judge. We will search for the supporting law. In order to understand the positions taken by the parties, we must examine the facts out of which the litigation arose.
I.
Defendant Herbert Kaplan was driving down the street one night when he rear-ended a Mustang automobile in front of him. The gas tank of the Mustang ruptured and exploded, causing serious burn injuries to the two occupants of that car. It should be noted that Ford Motor Company was a defendant, although it is not involved in this appeal.
The essential problem is that at the time of the accident, Kaplan had three separate legal identities, in each of which he was covered by primary and excess insurance for a total of six policies. This appeal concerns the order of priority of the policies.
Kaplan was employed by Royal Palm Beach Colony, Inc., as its President. On the evening in question, he had dinner at a restaurant on Biscayne Boulevard with a former employee of Royal Palm Beach Colony. The purpose of the meeting was to wind up their business relationship. After dinner, Kaplan went to see the former employee's apartment, and upon leaving the apartment, he got into his leased vehicle (which he used for company business purposes on a 24-month lease from Gulfstream Lease-A-Car) intending to go to his home in the southwest section of Miami. Travelling south on Biscayne Boulevard in the rain, he rear-ended the plaintiff's vehicle stopped for a traffic light at Northeast 105th Street.
In his three identities, Kaplan (1) was the Driver of the car, and as such he had a primary and excess policy on the car; (2) was the Lessee of the car, for which there was coverage under the leasing company's primary and excess policies; and (3) was in the course and scope of his employment, and as Employee, was covered under his employer's policy. The following sketch may be helpful:
The appeal of Continental Casualty Company claims that the court erred in holding that its policies were prior to the policy issued by Middlesex Insurance Company. It is urged that in determining the "total policy insuring intent," 3 a specific clause takes precedence over a general clause and, therefore, that because Continental's policies contain an excess liability clause, they are, in fact, excess to all other insurance. It is also argued that because Continental's policies are general liability policies, they should not be reached until all automobile liability policies are exhausted.
The trial judge found Hartford's policy next in order of responsibility for payment after the admitted responsibility of Allstate. Hartford insured the tortfeasor's employer with a primary policy with limits of $100,000/$300,000. There is evidence from which the trial judge, as the finder of fact, could have found that the employee, Kaplan, was driving a company car on company business at the time of the accident. We must conclude that it was on this basis that the trial judge determined that Hartford, as the employer's primary coverage insurer, should follow Allstate, the driver's primary coverage insurer, before resort to any excess coverage policies. Hartford contends that this holding is wrong because the driver is primarily liable and, therefore, the carriers for the driver, i. e., Allstate (the driver's primary coverage insurer) and Continental (the driver's excess coverage insurer) must respond before any insurer representing a vicariously liable entity is required to respond.
The trial judge found that Patriot's policy insuring the owner of the leased car, Gulfstream Lease-A-Car, was next in order of priority after Allstate and Hartford. This determination was apparently made upon the basis that (1) an owner is next in line of liability after a driver, or (2) that the policy properly construed covered the driver as an insured, thereby making it a primary policy to be exhausted before any excess policy is reached. Patriot and Middlesex have filed a joint brief in which they join in Hartford's position that all of the insurance of a driver must be exhausted before resort to the insurance furnished by any other entity. In addition, they argue that Continental's excess policy was properly placed ahead of the Middlesex's excess policy because that policy contains a contingent liability endorsement.
III.
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