Manhattan Fire & Marine Ins. Co. v. Sommers, 1716

• Decision Date: 14 April 1969
• Docket Number: No. 1716,1716
• Citation: 222 So.2d 450
• Parties: The MANHATTAN FIRE AND MARINE INSURANCE COMPANY, Appellant, v. James P. SOMMERS and Robert E. Messmer d/b/a Sommers & Messmer Construction Company, a partnership, Appellees.
• Court: Florida District Court of Appeals

Page 450

222 So.2d 450

The MANHATTAN FIRE AND MARINE INSURANCE COMPANY, Appellant, v. James P. SOMMERS and Robert E. Messmer d/b/a Sommers & Messmer Construction Company, a partnership, Appellees.

No. 1716.

District Court of Appeal of Florida, Fourth District.

April 14, 1969.

Rehearing Denied June 9, 1969.

George J. Baya, Miami, for appellant.

John A. Gentry, III, of Beverly, moyle, Gentry & Jones, West Palm Beach, for appellees.

KELLY, RICHARD, Associate Judge.

The Manhattan Fire and Marine Insurance Company appeals a final judgment entered pursuant to a jury verdict in favor of James P. Sommers and Robert E. Messmer, doing business as Sommers & Messmer Construction Company, a partnership in the sum of $9,109.31 plus $3,300.00 attorneys fees.

At trial it appeared that the Sommers and Messmer partnership had contracted to erect an evaporative shade house for FerMar Flowers, Inc. On 23 August 1964, while construction was in progress one of the partners, in an effort to obtain builders risk insurance, contacted one Arthur Lewis. Mr. Lewis had written policies for the partnership in the past but on this occasion referred the business by telephone to another insurance solicitor, one James F. Langhart.

Mr. Lewis testified that he gave what information that he had to Mr. Langhart and 'asked him to contact Mr. Sommers if he needed any further data.' Mr. Langhart later telephoned Mr. Sommers in order to ascertain the legal description and the type of construction. Thereafter on 25 August 1964 Langhart notified Lewis that the risk was bound by the defendant company.

On the same day it became evident that winds of hurricane strength, had appeared in the Caribbean area, but Langhart testified that as of then no watch warnings or gale warnings had been posted and 'nobody body knew what direction it was going.'

On 27 August 1964, before the policy had been received by Mr. Sommers, winds accompanying the storm caused extensive damage to the incomplete structure. For some reason, unclear in the record, the policy issued in the name of Sommers and Messmer Construction Company, Inc., instead of to the Sommers and Messmer partnership. Although Sommers and Messmer had previously formed said corporation, it was not active and the corporation had no insurable interest in the subject construction project.

After the storm the loss was immediately reported to the defendant and on 2 September 1964 one Lee Roberts, an insurance adjuster for Manhattan, inspected the site and took photographs of the damage. The adjuster computed the loss in the sum of $9,185.00 less $100.00 deductible and prepared a Proof of Loss form in said sum which was signed by Mr. Sommers. Mr. Roberts did not inquire as to the name in which the policy had issued but recommended that repairs be undertaken. Thereafter the defendant denied liability on the policy and on 4 September 1964 the adjuster for Manhattan contacted Mr. Sommers and suggested that the repairs be discontinued because of a problem that developed regarding the policy.

By letter dated 13 October 1964 written by counsel for Manhattan, the plaintiffs were informed that Manhattan did not consider that the policy had been effective. Thereafter suit was filed in which the Sommers and Messmer partnership sought damages on the contract of insurance. The case proceeded to trial and the jury returned with a verdict for the plaintiffs. By motion for new trial the defendant Manhattan asserted that the court erred in failing to grant a motion for directed verdict because the plaintiffs were not the insured named in the policy. In denying the motion, the trial judge stated in pertinent part:

'Factually, the partnership had a contract to build an evaporative shadehouse; while construction was in progress one of the partners, in an effort to obtain builders risk insurance on the construction job, contacted one Arthur Lewis to obtain the insurance; Lewis contacted defendant, Emery-Richardson & Associates, Inc., an agent of defendant, The Manhattan Fire and Marine Insurance Company, and had the policy written. There is some doubt as to how the policy came to be written in the name of Sommers and Messmer Construction Company, Inc., instead of the partnership. However, the evidence seems clear that it was a mistake. The corporation was not active; the partnership had the contract and was doing the work, and plaintiff intended the insurance to be in the name of the partnership. No one seems to know how it was written in the name of the corporation. The policy was mailed by the agent and not received until after the loss had occurred.

'Suit was originally brought in the name of the corporation, but subsequently amended to name the partnership as plaintiff. The facts proven at trial would seem to warrant reformation, and though even in this day of enlightened pleading and practice, it might be more proper to first reform the policy and then sue for breach, still, as said in Great American Ins. Co. v. Johnson, 4 Cir. 1928, 25 F.2d 847:

"but the question here is not whether it was error to try an equity case as an action at law, but whether this Court should hold such error to be prejudicial and award a new trial, where all of the evidence in the lower Court is before us, where it appears that the case was fully developed, and where the relief obtained at law is exactly what upon the record should have been awarded in equity? We think not. In such case justice has been done, and Courts exist to do justice, not to furnish a forum for intellectual skill or prowess.'

'The defendant was represented by able counsel who asserted every possible defense; the jury found for the plaintiffs and the Court feels substantial justice was accomplished.'

Defendant's main point concerns whether or not the trial judge erred in refusing to grant the motions for directed verdict on the ground that the plaintiffs were not the insured named on the policy. Defendant contends that the policy should have been first reformed in equity and that reformation cannot be effected in a law action, citing Taylor v. Glens Falls Insurance Company, 1902, 44 Fla. 273, 32 So. 887.

In the Taylor case, supra, a husband, wife and children resided in a home titled in the name of the wife. After the death of the wife, the insurance agent through mistake or inadvertence continued to renew the policy in the name of the wife. The husband and heirs at law had not seen the policy and had no knowledge as to whom the policy was payable. After the loss, the mistake was discovered and the husband and heirs at law filed an action in equity to reform the policy. The chancellor sustained defendants demurrer and dismissed the suit. In reversing the decree, the Supreme Court ruled that...