Klaesen Bros., Inc. v. Harbor Ins. Co.
| Decision Date | 03 March 1982 |
| Docket Number | No. 80-1618,80-1618 |
| Citation | 410 So.2d 611 |
| Parties | KLAESEN BROTHERS, INC., a Florida corporation, Appellant, v. HARBOR INSURANCE COMPANY, a foreign corporation authorized to do business inFlorida, Appellee. |
| Court | Florida District Court of Appeals |
Slawson & Burman, North Palm Beach, and Edna L. Caruso, West Palm Beach, for appellant.
Arthur M. Simon and Fulvia A. Morris of Goodwin, Ryskamp, Welcher, Carrier & Donoff, P. A., Miami, for appellee.
OWEN, WILLIAM C., Jr., (Retired) Associate Judge.
The issues here involve questions of insurance coverage.
Appellant was sued in a wrongful death case, the complaint alleging that the active tortfeasor, one Pitts, was an employee of appellant and in the course and scope of such employment at the time of committing the tort. The complaint also alleged the alternative theory of negligent hiring. Appellant made demand on appellee, Harbor Insurance Company, to defend the suit, appellant claiming to be an additional insured under the Carnival Liability coverage of the insurance policy which appellee had issued to Amusements of America, the named insured. Upon the insurance company denying coverage, appellant brought this action for declaratory judgment. On facts without significant dispute, the trial court held that the insurance policy provided no coverage to appellant for the claim made against it in the wrongful death action.
Appellant owns and operates carnival attractions. It booked an attraction, known as the Himalaya Ride, with Amusement of America for a carnival held at Cooper City in February 1976. Appellant hired Pitts to erect the ride and load people on to it. Pitts had only been working three or four days when he shot and killed one Hardison. The representative of Hardison's estate sued appellant, alleging (1) the negligent hiring of Pitts who allegedly had a known criminal record and a known violent nature, (2) that Pitts' employment required him to sleep and live on the carnival premises, and (3) that at the time of the killing Pitts was acting in his capacity as employee and/or agent of appellant.
Section II of the carnival liability coverage of the policy, titled "Persons Insured," provided as follows:
Each of the following is an insured under this insurance to the extent set forth below:
(d) A person or organization owning or operating a carnival attraction but only while such person or organization is operating the carnival attraction with the express permission of the insured in connection with a carnival owned or operated by the named insured....
Since appellant owned and was operating a carnival attraction, a Himalaya Ride, with a carnival operated by Amusements of America and with the latter's express permission, appellant fit squarely within the definition of "an insured" under the policy.
The insuring agreement of the policy provided as follows:
The company will pay on behalf of the insured all sums which the insured shall become obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or operation of a carnival and all operations necessary or incidental thereto, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent ... (Emphasis added).
Appellee contends, we think correctly, that...
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