Hodapp v. Shelby Mut. Ins. Co., 4358

Decision Date14 August 1964
Docket NumberNo. 4358,4358
Citation166 So.2d 772
PartiesDonald Edward HODAPP, Appellant, v. SHELBY MUTUAL INSURANCE COMPANY of Shelby, Ohio, an Ohio corporation, and A. P. Clark Motors, Inc., a Florida corporation, Appellees.
CourtFlorida District Court of Appeals

Richard W. Bates, Orlando, for appellant.

Irvin A. Meyers and E. H. Eubanks, of Maguire, Voorhis & Wells, Orlando, for appellee Shelby Mutual Insurance Company of Shelby, Ohio.

Gurney, Gurney & Handley, Orlando, for appellee A. P. Clark Motors, Inc.

SHANNON, Acting Chief Judge.

Appellant, petitioner below, appeals a final decree in which the chancellor decided that an insurance policy did not extend coverage to the appellant in a certain automobile accident.

The appellant's car was being serviced at A. P. Clark Motors, Inc., and Vance, a fellow employee, had given the appellant a ride to Clark Motors so that the appellant could pick up his car. While the appellant and Vance were at Clark Motors, Vance indicated he was interested in purchasing a certain used car. At the suggestion of a salesman, Vance and the appellant took the car out for a demonstration ride, the appellant doing the driving. An accident occurred while appellant was driving and the car owned by Clark Motors was damaged. Clark Motors brought an action against the appellant and, when appellant's insurer refused to defend or pay, the appellant sought a declaratory decree to ascertain whether the insurance policy covered this accident.

The insurance policy had certain exclusions in it, which are as follows:

'Exclusions. This policy does not Apply:

'(b) to any automobile while used in the automobile business, * * *;

'(k) to property damage to * * * (2) property rented to or in charge of the insured other than a residence or private garage or (3) property as to which the insured is for any purpose exercising physical control;'

And under Part II of the policy, Coverage E, Exclusions (c):

'Exclusions. This policy does not apply under Part II;

'(c) to a non-owned private passenger automobile whilc used in the automobile business;'

The trial court held that the petitioner was not covered in this accident. The only questions to be decided on this appeal are whether this autombile was being 'used in the automobile business,' and whether it was property over which the insured was 'for any purpose exercising physical control.' Both sides allege that there are no cases in Florida covering the exact situation, and our independent research bears this out.

In McCree v. Jenning, 1960, 55 Wash.2d 725, 349 P.2d 1071, the court said:

'It would appear evident, therefore, that an automobile 'used in the automobile business,' would be one which was employed for some purpose in connection with the business. For example, a tow truck, an automobile used for demonstration purposes, or a vehicle used for securing or delivering equipment and supplies would be 'used in the business.' * * *' (Emphasis supplied).

In the construction of these exclusionary clauses it is more important to consider...

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12 cases
  • Carney v. Erie Ins. Co., Inc.
    • United States
    • West Virginia Supreme Court
    • September 8, 1993
    ...of concealment to the showroom floor." 193 Kan. at 639, 396 P.2d at 350. Much the same result occurred in Hodapp v. Shelby Mutual Insurance Co., 166 So.2d 772 (Fla.App.1964), where the insured was test driving a car owned by an automobile dealership to determine if he would buy it. An accid......
  • Loeber Motors, Inc. v. Sims
    • United States
    • United States Appellate Court of Illinois
    • November 17, 1975
    ...in determining that the exclusion is not applicable in the case before us. Country Mutual depends on Hodapp v. Shelby Mutual Insurance Company, Fla.App., 166 So.2d 772. There, a prospective purchaser took an automobile from a dealer for a test drive. He permitted a friend to drive and the c......
  • State Farm Mutual Automobile Insurance Co. v. Sampson
    • United States
    • U.S. District Court — Middle District of Florida
    • October 16, 1969
    ...Plaintiff, however, claims that a ruling by this Court in its favor is dictated by the Florida case of Hodapp v. Shelby Mutual Insurance Company, 166 So.2d 772 (Fla. App.1964). In that case Hodapp's insurance policy excluded coverage for the use of "a non-owned private passenger automobile ......
  • Helmich v. Northwestern Mutual Insurance Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • April 21, 1967
    ...913 (1964); Nationwide Mut. Ins. Co. v. Federal Mut. Ins. Co., 204 Va. 879, 134 S.E.2d 253 (1964). But cf., Hodapp v. Shelby Mut. Ins. Co., 166 So.2d 772 (Fla. App.1964). It is apparent that different considerations are applicable to such cases. Where the named insured's automobile is being......
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