Makris v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 22 August 1972
• Docket Number: No. 72-114,72-114
• Citation: 267 So.2d 105
• Parties: Aris Emanoli MAKRIS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and George Vamvoris, Appellees.
• Court: Florida District Court of Appeals

Page 105

267 So.2d 105

Aris Emanoli MAKRIS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and George Vamvoris, Appellees.

No. 72-114.

District Court of Appeal of Florida, Third District.

Aug. 22, 1972.

Gus Efthimiou, Jr., Miami, for appellant.

Walton, Lantaff, Schroeder, Carson & Wahl and Richard J. Thornton; Tobin & Jaffe, Coral Gables, for appellees.

Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.

PEARSON, Judge.

The question to be determined on this appeal is whether an automobile insurance policy which has been certified as coverage under an SR-22 form filed pursuant to Fla.Stat. § 324.151(1), F.S.A., may have exclusions to coverage. The question arose in the following manner. A motor vehicle collision occurred in which the plaintiff-employee, George Vamvoris, was a passenger in an automobile owned and driven by his employer, the defendant-appellant, Aris Emanoli Makris. Since Makris possessed an automobile insurance policy issued by State Farm Mutual Automobile Insurance Company, Vamvoris sued defendant-appellee State Farm as well as defendant-appellant Makris in the ensuing personal injury action. State Farm defended on the theory that its insurance policy specifically excluded liability coverage for injuries suffered by Vamvoris while he was working in the scope of his employment. The exclusion in the policy reads as follows:

'This policy does not apply:

'(g) Under coverage A, to bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of

(1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law, or

(2) other employment by the insured;'

Subsequently, on defendant-appellee State Farm's motion, the trial court entered a summary final judgment holding that the exclusion was valid, and that the policy did not afford bodily injury coverage for plaintiff Vamvoris because he was an employee of defendant-appellant Makris at the time of the accident. ¹ This appeal followed.

The appellant contends that the insurance policy in the case sub judice must comply with the Financial Responsibility Law, Chapter 324, Florida Statutes, F.S.A., and, therefore, being issued after the 'first accident,' must include ten thousand dollars in coverage to protect the insured owner in the event of a future automobile accident causing bodily injury to any one individual. Fla.Stat. §§ 324.011, 324.021(7), 324.021(8), 324.151(1)(a). He argues that the exclusion provision in the policy quoted previously is contrary to statutory command in that it provides no liability coverage for the owner merely because he is an employer. Appellant anchors his argument on the holdings in Bankers and Shippers Insurance Company of New York v. Phoenix Assurance Company of New York, Fla.1968, 210 So.2d 715; Howard v. American Service Mutual Insurance Company, Fla.App.1963, 151 So.2d 682; and, Lynch-Davidson Motors v. Griffin, Fla.App.1965, 171 So.2d 911. ²

Conversely, the appellee urges that if the Legislature of the State of Florida had intended to include absolute liability language in Chapter 324, Florida Statutes, F.S.A., it would have clearly written such language into the chapter. State Farm argues that when the legislature enacted this chapter, it had to be fully cognizant of the fact that all insurance policies contain exclusionary provisions, and offers as an example the requirement that 'all such motor vehicle liability policies shall state . . . the coverage afforded by the policy.' Fla.Stat. § 324.151(1)(c), F.S.A. State Farm insists that in the absence of clear statutory language forbidding all exclusionary provisions, a judicial holding expressing this viewpoint is judicial legislation, and is not a function of the courts. State Farm supports its argument by relying on decisions which hold that the provisions of an insurance policy excluding coverage for bodily injury to an employee while acting in the scope of his employment are valid. See Stewart v. Liberty Mutual Insurance Company, 256 F.2d 444 (5th Cir. 1958); Allison v. Imperial Casualty and Indemnity Company, Fla.App.1969, 222 So.2d 254; General Insurance Company of America v. Reid, Fla.App.1968, 216 So.2d 41; Griffin v. Speidel, Fla.1965, 179 So.2d 569.

We hold that the trial court incorrectly stated the law as established by the Supreme Court of Florida by holding that the exclusion was valid and enforceable even though the policy had been certified as proof of financial responsibility for the future under the Financial Responsibility Law. In Roth v. Old Republic Insurance Company, Fla.1972, 269 So.2d 3 filed May 3, 1972, the Supreme Court of Florida quashed an opinion of this court in which we held that although the owner's liability policy was, prior to the accident certified for future financial responsibility under Fla.Stat. § 324.031, F.S.A., the insurance coverage was not extended so as to provide indemnification when the damage is caused through the negligence of a lessee's permittee who was not authorized to drive the vehicle under an agreement between the owner and lessee. In so holding, the Supreme Court said:

'We believe that Plax's protection afforded by Old Republic for which he paid a premium necessarily inures to Roth, to whom Plax entrusted the motor vehicle; that the collateral or side agreement between Plax and Yellow Rent-A-Car for public policy reasons cannot vary, circumvent or intercept the flow of protection to Roth and injured members of the public emanating from the Financial Responsibility Law which was confirmed by the terms of the policy issued by Old Republic.'

See also Bankers and Shippers Insurance Company of New York v. Phoenix Assurance Company of New York, Fla.1968, 210 So.2d 715; Lynch-Davidson Motors v. Griffin, Fla.App.1965, 171 So.2d 911, rev'd, Fla.1966, 182 So.2d 7; Howard v. American Service Mutual Insurance Company, Fla.App.1963, 151 So.2d 682. Cf. Hanover Insurance Company v. Bramlitt, Fla.App.1969, 228 So.2d 288; Safeco Insurance Company of America v. Hawkeye-Security Insurance Company, Fla.App.1969, 218 So.2d 759.

In Howard v. American Service Mutual Insurance Company, supra, a case resembling the case at bar, the court offered the following illuminating discussion and holding:

'The trial judge granted a summary final judgment in favor of the defendant upon his finding, as a matter of law, that the policy in question did not cover Bajnick for an accident occurring while the vehicle was being driven by someone other than his immediate family, which Kellar was not. While the policy contained a clause stating in part that it 'shall comply with the financial responsibility law of any state or province which shall be applicable', the trial judge determined that the financial responsibility law of Florida was not applicable until after the insured became involved in his first accident and, therefore, such clause in the policy did not extend coverage to include this accident. Plaintiff appeals from the summary final judgment.

'It is clear that the policy in question did not cover Bajnick while his vehicle was being driven by Kellar unless, under 'Condition 4', our financial responsibility law is applicable and has the effect of broadening the coverage of the policy so as to include liability to the plaintiff from this accident. We so hold.'

Recognizing the fact that the policy in the case at bar was issued After the 'first accident' had occurred, it is informative to examine the reasoning of the Howard court in reference to the clause which was analyzed in that case:

'We must assume that 'Condition 4' was inserted in the policy for a purpose. To interpret such clause...