Liberty Mut. Ins. Co. v. Flitman
| Decision Date | 21 April 1970 |
| Docket Number | No. 69-660,69-660 |
| Parties | LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. D. Blake FLITMAN, Appellee. |
| Court | Florida District Court of Appeals |
Ralph, Boyd & Anderson, Miami, and Donald F. Geffner, for appellant.
Harvey Richman, and Harris J. Buchbinder, Miami Beach, for appellee.
Before CHARLES CARROLL, HENRY and SWANN, JJ.
Liberty Mutual Insurance Company appeals from a final judgment rendered for plaintiff after a non-jury trial.
Liberty issued an insurance policy for one year to D. Blake Flitman for coverage on his yacht. The policy covered all risks of physical loss to the vessel but specifically excluded coverage for losses due to inherent vice, unseaworthiness, or repair or replacement of a part in which a latent defect was found.
Two identical masts failed on separate occasions on the yacht while Flitman was competing in ocean racing. The two masts failed and the vessel suffered loss of sails, rigging, and other equipment, under similar conditions. Flitman made a claim for these losses under the hull portion of the insurance policy on the yacht. Liberty denied any coverage and ultimately this suit was filed and a final judgment rendered for Flitman.
On appeal, Liberty argues that the trial court erred in finding that the failure of the two masts on Flitman's vessel did not result from inherent vice, latent defect, or unseaworthy condition.
The record on appeal reveals sufficient, substantial and competent evidence to sustain this finding by the trial judge in the non-jury case and to also establish that Liberty failed to carry its burden of proof that these losses were excluded under the provisions of the policy. See Fire Ass'n of Philadelphia v. Evansville Brewing Ass'n, 73 Fla. 904, 75 So. 196 (1917); Allstate Insurance Company v. Coin-O-Mat, Inc., Fla.App.1967, 202 So.2d 598; and 18 Fla.Jur. Insurance § 431.
Liberty argues that reversible error was committed when the trial court would not permit it to take the deposition, or subpoena the records of plaintiff's attorney or require the plaintiff to answer certain written interrogatories.
The evidence sought to have been elicited may have been privileged. 35 Fla.Jur. Witnesses § 144-146. This also appears to have been an attempt to Liberty to inquire into and discover the facts involved in the settlement negotiations of a disputed claim which the plaintiff had against the manufacturer and seller of the yacht. This is not generally permitted. See Jordan v. City of Coral Gables, Fla.1966, 191 So.2d 38, affirming Fla.App.1966, 186 So.2d 60; and 29 Am.Jur.2d Evidence § 632.
Assuming the facts which Liberty sought to ascertain were a proper subject matter for discovery under the broad purposes presently permissible, we find that the action of the trial court in refusing to permit inquiry into this specific area amounted to harmless error at most. § 59.041, Fla.Stat., F.S.A.
The trial court struck the fifth defense asserted in the answer of Liberty and it claims reversible error. The fifth defense alleged that Flitman had violated Condition Ten of the insurance policy by giving a release to the manufacturer and seller of the yacht and the insurance policy was, therefore, null and void.
Condition Ten provides:
'Impairment of Right of Recovery--Any agreement, contract or act, past or future, positive or implied, by the insured whereby any right to recovery of the insured against any vessel, person or organization is released, decreased, transferred or lost, which would on payment hereunder by the company belong to the company but for such agreement, contract or act, shall render this policy null and void as to the amount of any such loss or damage, but the company's right to retain or recover the full premium shall not be effected.'
Liberty does not argue incorrect procedure herein but only that there was an inaccurate and incorrect application of the substantive law to these facts. We, therefore, pretermit any opinion or discussion concerning the procedural question involved herein. Liberty claims that since it denied these claims in good faith it cannot be held to have waived, or to be estopped, from asserting that the actions of Flitman in giving a release violated its subrogation rights, and that, therefore, the policy was null and void under Condition Ten. It concedes that if its denial of coverage were in a case where coverage and liability were definite and certain that it would be proper to hold that it had waived or was estopped to deny coverage.
In Dinn Oil Company v. Hanover Insurance Company, 87 Ill.App.2d 206, 230 N.E.2d 702, the court, in response to a similar argument, said:
'* * * We hold...
To continue reading
Request your trial
-
VISION ONE LLC. v. PHILADELPHIA Indem. Ins. Co.
...Calhoun v. State Farm Mut. Auto. Ins. Co., 254 Cal.App.2d 407, 62 Cal.Rptr. 177, 179-81 (1967); Liberty Mut. Ins. Co. v. Flitman, 234 So.2d 390, 392-93 (Fla.Dist.Ct.App.1970); Cmty. Title Co. v. Safeco Ins. Co. of Am., 795 S.W.2d 453, 461-62 (Mo.Ct.App.1990); Schwickert, Inc. v. Winnebago S......
-
Sexton v. Continental Cas. Co.
...v. South Carolina Farm Bureau Mutual Insurance Company, 301 S.C. 267, 391 S.E.2d 560, 562 (1990); Liberty Mutual Insurance Company v. Flitman, 234 So.2d 390, 392-393 (Fla.App.1970); Dinn Oil Company v. Hanover Insurance Company, 87 Ill.App.2d 206, 230 N.E.2d 702, 705 (1967); Alderman v. Han......
-
Auto Owners Ins. Co. v. Travelers Cas. & Surety
...establishing that the exception applies. Phoenix Ins. Co. v. Branch, 234 So.2d 396, 398 (Fla. 4th DCA 1970); Liberty Mut. Ins. Co. v. Flitman, 234 So.2d 390, 392 (Fla. 3rd DCA 1970); Allstate Ins. Co. v. Coin-O-Mat, Inc., 202 So.2d 598, 599 (Fla. 1st DCA V. DISCUSSION There are several thre......
-
U.S. Fidelity & Guaranty Co. v. Helms
...upon USF&G to demonstrate the applicability or existence of an exclusion of its general liability policy. Liberty Mutual Insurance Company v. Flitman, 234 So.2d 390 (Fla. 3d DCA 1970). While the term "unload" is simple, the application of the definition of the facts of the case creates a ne......