Hodapp v. Shelby Mut. Ins. Co., 4358
Decision Date | 14 August 1964 |
Docket Number | No. 4358,4358 |
Citation | 166 So.2d 772 |
Parties | Donald Edward HODAPP, Appellant, v. SHELBY MUTUAL INSURANCE COMPANY of Shelby, Ohio, an Ohio corporation, and A. P. Clark Motors, Inc., a Florida corporation, Appellees. |
Court | Florida 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.
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:
'(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):
'(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:
* * *'(Emphasis supplied).
In the construction of these exclusionary clauses it is more important to consider...
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