Liberty Mut. Ins. Co. v. Imperial Cas. & Indem. Co.

• Decision Date: 10 November 1964
• Docket Number: No. 64-366,64-366
• Parties: LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. IMPERIAL CASUALTY AND INDEMNITY COMPANY, a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

Page 688

168 So.2d 688

LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. IMPERIAL CASUALTY AND INDEMNITY COMPANY, a foreign corporation, Appellee.

No. 64-366.

District Court of Appeal of Florida, Third District.

Nov. 10, 1964.

Blackwell, Walker & Gray and James E. Tribble, Miami, for appellant.

Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell and Paul A. Carlson, Miami, for appellee.

Before BARKDULL, C. J., and CARROLL and HORTON, JJ.

HORTON, Judge.

Plaintiff seeks reversal of a judgment dismissing its complaint for failure to state a cause of action.

For the purpose of clarity and in order to place the parties in proper perspective, we shall go into a brief recitation of the facts giving rise to this law suit.

Fuller, the employee of Bee Line Haulers, was injured while unloading Bee Line's truck at Florida Wire's premises. Assisting in the unloading was Kuchinsky, an employee of Florida Wire. Fuller brought an action for his injuries against Florida Wire under the doctrine of respondeat superior, alleging the negligence of Kuchinsky. Fuller's action was ultimately settled by Liberty Mutual, the liability carrier for Florida Wire. During the course of that law suit, Liberty Mutual made demand on Imperial, the liability carrier for Bee Line, to defend and indemnify Florida Wire under the theory that Florida Wire was an additional insured under Bee Line's policy. The demand was refused giving rise to this suit.

The issue before us on this appeal is whether, an automobile liability policy containing both employee exclusion and severability of interests clauses, affords coverage to an additional insured for personal injuries to an employee of the named insured. ¹

In cases construing pre-1955 liability insurance policies containing an employee exclusion clause, the courts have been in irreconcilable conflict on the question of whether coverage was afforded to an additional insured with respect to claims for personal injuries asserted against such insured by an employee of the named insured. See 50 A.L.R.2d 99, and subsequent supplements thereto. The Florida Supreme Court was called upon to answer a similar question in Webb v. American Fire & Casualty Company, 148 Fla.App., 714, 5 So.2d 252. In that case the court held that an employee exclusion clause applies not only to the named insured but also to an additional insured with regard to injury to his employee. Since 1955 and the adoption of the severability of interest clause, there has been no resolution to the divergence of views in the various jurisdictions regarding this issue. 50 A.L.R.2d 78, et seq. However, we align ourselves with what we feel is the better reasoned position stated in Transport Insurance Company v. Standard Oil Company of Texas, 161 Tex. 93, 337 S.W.2d 284. In that case the Supreme Court of Texas said:

'The addition of the 'severability of interests' clause does not indicate that the drafters of the policy form by the addition of such clause intended that the word 'insured' means only the person claiming coverage.' [Emphasis in original opinion]

The court went on to say that to hold otherwise would require additional wording in the exclusionary clause after the word insured, these words being 'the insured who is asking for a defense' or 'the insured against whom claim is made.'

In Standard Surety and Casualty Company v. Maryland Casualty Company, 281 App.Div. 446, 119 N.Y.S.2d 795, app. den. 281 App.Div. 1069, 121 N.Y.S.2d 767, rehearing den. 281 App.Div. 1075, 122 N.Y.S.2d 415, the court said that in an automobile liability policy, the exclusion of coverage...