Marks v. Travelers Indem. Co.

• Decision Date: 02 November 1976
• Docket Number: No. 75--1604,75--1604
• Citation: Marks v. Travelers Indem. Co., 339 So.2d 1123 (Fla. App. 1976)
• Parties: Steven MARKS, a single man, et al., Appellants, v. The TRAVELERS INDEMNITY COMPANY, a Connecticut Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 1123

339 So.2d 1123

Steven MARKS, a single man, et al., Appellants, v.The TRAVELERS INDEMNITY COMPANY, a Connecticut Corporation, Appellee.

No. 75--1604.

District Court of Appeal of Florida, Third District.

Nov. 2, 1976.

Ehrich & Zuckerman, Miami, for appellants.

Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for appellee.

Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.

PER CURIAM.

Appellants, defendants below, appeal a final judgment dated September 18, 1975, entered by the trial court in favor of appellee, plaintiff below.

The final judgment entered by the trial court after a nonjury trial reads, in pertinent part, as follows:

'FINDINGS OF FACT

'1.It is undisputed between respective parties that the accident occurred on April 25, 1972 and that STEVEN MARKS was seriously injured when he was allegedly struck by a phantom vehicle and then subsequently by a third vehicle.Said phantom vehicle is covered under the uninsured motorist coverage on the vehicle operated by STEVEN MARKS on the date of the accident.

'2.On the date of the accident, the vehicle operated by STEVEN MARKS was a 1971 MG coupe and it was owned and titled in the name of CHARLIE'S AUTO PARTS AND SERVICE, INC. and was furnished to WALTER MARKS for his use in the business.WALTER MARKS, on the date of the accident, allowed his son, STEVEN MARKS, to use the car with his permission.

'3.On the date of the accident, CHARLIE'S AUTO PARTS AND SERVICE, INC. was insured with TRAVELERS INDEMNITY COMPANY under a standard commercial policy effective from May 1, 1971 to May 1, 1972 and a copy of the policy was attached to the Petition for Declaratory Relief filed by TRAVELERS INDEMNITY COMPANY.Said insurance policy covered seven (7) listed vehicles owned by CHARLIE'S AUTO PARTS AND SERVICE, INC. and insured each vehicle for uninsured motorist coverage as well as medical pay with the exception that only six (6) vehicles were covered by medical payments instead of seven (7).

'4.Subsequent to the subject accident, a Demand for Arbitration was filed with the American Arbitration Association against TRAVELERS INDEMNITY COMPANY.TRAVELERS INDEMNITY COMPANY, after being advised of the accident and the injuries sustained by STEVEN MARKS, tendered its TEN THOUSAND DOLLARS ($10,000.00) uninsured motorist coverage plus ONE THOUSAND DOLLARS ($1,000.00) medical payments plus FIVE THOUSAND DOLLARS ($5,000.00) PIP benefits as required under the Florida Automobiles Reparations Reform Act also known as No-Fault.

'5.At this point in time a dispute arose between TRAVELERS and CHARLIE'S as to the amount of uninsured motorist coverage which was available for STEVEN MARKS and also the amount of medical pay coverage which was available for STEVEN MARKS.As a consequence of this dispute, TRAVELERS filed a Petition for Declaratory Relief to ascertain their rights and liabilities under the aforesaid policy with the result that this matter proceeded to a nonjury Trial on May 6, 1975.

'6.The Court, in addition to the foregoing undisputed facts, finds additionally the following:

'(a) At no time was there sufficient evidence introduced on behalf of the Defendants to show that the vehicle operated by STEVEN MARKS was, in fact, intended to be a family automobile and not a corporate vehicle so that some analogy might be made because of use that the vehicle should more properly be interpreted as a family automobile thereby allowing a family type policy interpretation when, in fact, the vehicle is actually a corporate automobile and covered under the commercial policy issued by the Plaintiff.

'(b) Insufficient evidence was introduced to show that TRAVELERS was required to increase its uninsured motorist limits from TEN THOUSAND DOLLARS ($10,000.00) per vehicle to ONE HUNDRED THOUSAND DOLLARS ($100,000.00) per vehicle.

'(c) The evidence introduced shows that the vehicles operated by CHARLIE'S AUTO PARTS AND SERVICE, INC. were clearly intended as commercial vehicles for tax purposes and at no time were intended to be family type automobiles or to be considered as owned by the individuals for whose use they were furnished.

'(d) The endorsement introduced into evidence of April 21, 1971 naming individuals as insureds is for the policy previous to the one in dispute and no evidence was ever introduced that the individuals were named on the policy in question as it pertained to the motor vehicles but only insofar as it pertained to certain other coverages not material to this dispute.The Defendants cannot create new coverage when none existed before as they have attempted to do so by their argument.

'(e) The broad form coverage referred to by the Defendants in their argument, referred to a non-owned automobile and would have created coverage in such a...