Logozzo v. Kent Ins. Co.

• Decision Date: 26 February 1985
• Docket Number: No. 84-1326,84-1326
• Citation: 10 Fla. L. Weekly 517,464 So.2d 605
• Parties: 10 Fla. L. Weekly 517 Rocco LOGOZZO, II, Appellant, v. KENT INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 605

464 So.2d 605

10 Fla. L. Weekly 517

Rocco LOGOZZO, II, Appellant, v. KENT INSURANCE COMPANY, Appellee.

No. 84-1326.

District Court of Appeal of Florida Third District.

Feb. 26, 1985.

Lawrence M. Malman, Coral Gables, for appellant.

Lee, Schulte, Murphy & Coe and Jack Coe, Miami, for appellee.

Before SCHWARTZ, C.J., and BARKDULL and HUBBART, JJ.

SCHWARTZ, Chief Judge.

The plaintiff-appellant Logozzo was shot in a lovers' dispute at a motel by one John Baiamonte, Jr. Logozzo sued Baiamonte; his employer, J.B.B. Enterprises, Inc., the operator of several restaurants whose principal was Baiamonte's father; and J.B.B.'s liability insurer, the present appellee, Kent Insurance Company. Although it was admitted that Baiamonte was not acting within the scope of his employment and that he, not the company, owned the firearm used in the incident, the trial judge denied J.B.B.'s motion for summary judgment ¹ apparently on the theory that it might be liable for the senior Baiamonte's negligence in instructing his son, whom he allegedly should have known was prone to misuse it, to carry a gun while taking money from the restaurants to the bank. This is what he was doing when he deviated from his route, went to the motel, and shot Logozzo. For some reason, however, Kent's motion for summary judgment on the ground of no coverage was simultaneously and, we think, inconsistently granted. The plaintiff has taken this appeal from that judgment. ²

We agree that, since the tortious act in question was committed neither in the course of Baiamonte's employment with J.B.B. Enterprises nor in breach of any duty owed the plaintiff by the corporation, there is no discernible basis for imposing substantive liability upon J.B.B. either on a "negligent hiring" or any other theory. Mayo v. Highland Park Hospital Corp., 460 So.2d 571 (Fla. 3d DCA 1984); Texas Skaggs, Inc. v. Joannides, 372 So.2d 985 (Fla. 2d DCA 1979), cert. denied, 381 So.2d 767 (Fla.1980); Friedman v. Mutual Broadcasting System, Inc., 380 So.2d 1313 (Fla. 3d DCA 1980), cert. denied, 388 So.2d 1112 (Fla.1980); see McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970).

Nevertheless, the obligation of a liability insurer--particularly with respect to the duty to defend, which is the only one presently involved ³--is not determined by the actual liability of the insured but rather by whether the alleged basis of the action against it falls within the coverage provided by the policy. Accredited Bond Agencies, Inc. v. Gulf Ins. Co., 352 So.2d 1252 (Fla.1977). If this is the case, the carrier must defend even if the claim is factually incorrect, e.g., St. Paul Fire and Marine Ins. Co. v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973), cert. denied, 282 So.2d 638 (Fla.1973), or, as seems true here, legally unsound. Klaesen Bros., Inc. v. Harbor Ins. Co., 410 So.2d 611 (Fla. 4th DCA 1982); Linderman v. American Home Assurance Co., 414 So.2d 1124 (Fla. 2d DCA 1982); see generally, Annot., Allegations in third person's action against insured as determining liability insurer's duty to defend, 50 A.L.R.2d 458 (1956). The relevant portion of the policy issued to J.B.B. insures it against liability for injuries

to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises, and all operations necessary...