Hartman v. American Fidelity Fire Ins. Co., 64-934
| Decision Date | 13 July 1965 |
| Docket Number | No. 64-934,64-934 |
| Citation | 177 So.2d 376 |
| Parties | Frank HARTMAN, Appellant, v. AMERICAN FIDELITY FIRE INSURANCE COMPANY, a foreign corporation, Forrest H. Pelfrey and Norma Jean Pelfrey, his wife, Appellees. |
| Court | Florida District Court of Appeals |
Headley & Sudduth and Joe N. Unger, Miami, for appellant.
Fuller & Brumer, Kenneth L. Ryskamp, Miami, for appellee.
Before HENDRY, C. J., and CARROLL and SWANN, JJ.
This is defendant's appeal from a final declaratory decree rendered pursuant to plaintiff's motion for judgment on the pleadings.
The defendant was injured in a collision with an automobile driven by one Forrest Pelfrey. The Pelfrey vehicle was owned by Norma Jean Pelfrey, wife of Forrest Pelfrey. The plaintiff, insurer of the Pelfrey automobile, filed a complaint below seeking a declaration that the policy did not extend coverage to Forrest Pelfrey by virtue of a policy endorsement specifically excluding coverage when the vehicle was operated by him. The defendant's answer admitted all factual allegations in the complaint but prayed the exclusionary endorsement be declared null and void as against public policy and in conflict with the provisions of Chapter 324 Fla.Stat., F.S.A. The trial court granted plaintiff's motion for judgment on the pleadings thereby giving rise to this appeal.
The policy under scrutiny contains the following clause:
'Financial Responsibility Laws--Coverages A and B
The endorsement excluding coverage of the vehicle when it is operated by Forrest Pelfrey reads in part as follows:
'It is hereby agreed and understood that all coverage shall be null and void while the vehicle is driven by Forrest H. Pelfrey.'
The primary question presented is whether the specifically excluded husband is, by operation of law, within the coverage of the liability policy issued by appellant.
Under the authority of Howard v. American Service Mutual Insurance Co. 1 and Lynch-Davidson Motors v. Griffin 2 the decree appealed must be reversed.
No useful purpose can here be served by an elaborate discussion of the legal problem presented by this case. For such discussion we refer the reader to this court's opinion in the Howard case, and the opinion of the First District Court of Appeal in the Lynch-Davidson case.
Appellee contends that Jefferson Insurance Company v. Fischer, 3 decided by the Supreme Court after Howard but before Lynch-Davidson, must be construed as a rejection of Howard. We disagree. The Jefferson decision does not turn on a construction of the Financial Responsibility Law, § 324 F.S., F.S.A., and the effect thereof on this type case.
For the foregoing reasons the decree appealed is reversed and the chancellor is directed to enter a decree for the defendant.
Reversed.
The case of Howard v. American Service Mutual Insurance Co., Fla.App.1963, 151 So.2d 682, involved an automobile liability policy which contained a clause, stating in part, that it 'shall comply with the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable.' (Emphasis added.)
The instant case involves a policy which contains a clause (set out in full in the majority opinion), in part, as follows:
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'When this policy is certified as proof of financial responsibility for the future under the provisions of the motor vehicle financial responsibility law of any state or province, such insurance as is afforded by this policy for bodily injury liability or for property damage liability shall comply with the provisions of such law which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy. * * *' (Emphasis added.)
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This case involves the interpretation and application of a different insurance clause than that involved in Howard, supra, and is therefore distinguishable.
When does the instant policy become 'certified as proof of financial responsibility for the future' under Florida law? In my opinion the policy may become certified when the financial responsibility authorities of Florida take away the driving privileges and/or automobile registration certificate or plates of an individual, and will not permit the use of such license or registration plates until proof of financial responsibility has been furnished to the state. One way, among others, that financial responsibility for the future can be satisfied is by filing a motor vehicle liability policy which has been certified by the issuing insurance company that the policy will comply with the financial responsibility laws. This is done by the insurance company filing an SR-22 form with the state authorities. The SR-22 form certifies that the policy, to which the form applies, will comply with the financial responsibility laws, and is furnished to supply financial responsibility for the future. When a person has not been compelled to file such a certified policy it is, in my opinion, a voluntary policy, and therefore the instant clause which refers to a 'certified' policy 'for the future', has nothing whatever to do with the terms and conditions of a voluntary policy.
The policy herein had not been certified and was therefore a voluntary policy. Generally, a policy of insurance which has not been certified may contain exclusions and restrictions of coverage. See Hoosier Cas. Co. of Indianapolis, Ind. v. Fox, N.D.Iowa, 1952, 102 F.Supp. 214, and cases cited therein; Temperance Insurance Exchange v. Coburn, 1963, 85 Idaho 468, 379 P.2d 653; Mooradian v. Canal Insurance Company, 1961, 272 Ala. 373, 130 So.2d 915; Safeco Insurance Company of America v. Gonacha, 1960, 142 Colo. 170, 350 P.2d 189; United States Fidelity and Guaranty Co. v. Walker, Okl.1958, 329 P.2d 852; Aetna Casualty & Surety Co. v. Simpson, 1957, 228 Ark. 157, 306 S.W.2d 117; Utah Farm Bureau Ins. Co. v. Chugg, ...
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