Marriott Corp. v. Travelers Indem. Co.

• Decision Date: 01 August 1985
• Docket Number: No. AY-334,AY-334
• Citation: 10 Fla. L. Weekly 1846,473 So.2d 281
• Parties: 10 Fla. L. Weekly 1846 MARRIOTT CORPORATION, a corporation, and Liberty Mutual Insurance Company, a corporation, Appellants, Cross-Appellees, v. The TRAVELERS INDEMNITY COMPANY, a corporation, Appellee, Cross-Appellant, and Commercial Union Insurance Co., a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 281

473 So.2d 281

10 Fla. L. Weekly 1846

MARRIOTT CORPORATION, a corporation, and Liberty Mutual Insurance Company, a corporation, Appellants, Cross-Appellees, v. The TRAVELERS INDEMNITY COMPANY, a corporation, Appellee, Cross-Appellant and Commercial Union Insurance Co., a corporation, Appellee.

No. AY-334.

District Court of Appeal of Florida First District.

Aug. 1, 1985.

Herbert R. Kanning and Jack W. Shaw, Jr., of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for appellants, cross-appellees.

Bruce S. Bullock and W. Douglas Childs of Bullock, Childs, Mickler & Cohen, Jacksonville, for appellee Commercial.

Francis P. Conroy of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellee, cross-appellant Travelers.

BARFIELD, Judge.

In this appeal the multiple parties to this action appeal and cross-appeal the trial court's determination of responsibility for payment of a settlement reached with the victim of an automobile accident. The issues on the appeal and cross-appeal are: 1) whether the trial court erred in holding that Liberty Mutual's policy provided primary coverage; 2) whether the trial court erred in permitting insurers to seek subrogation and indemnity against their own insureds; 3) whether the trial court erred in awarding attorney's fees; 4) whether Marriott Corporation was entitled to judgment on the claims against it; 5) whether the trial court erred in not requiring Liberty Mutual and Commercial Union to indemnify Travelers.

The parties stipulated to the following facts:

Plaintiff, Travelers, had issued an automobile liability policy to Drake, the owner and lessor of a van to Amelia under a written lease agreement, which required that lessee, Amelia, (1) provide automobile liability insurance thereon at its own expense with a liability limit of $250,000 for one person (Amelia chose to be a "self insured"), and (2) indemnify and hold Drake harmless from any and all liability arising from the operation and use of said van, whether or not insured.

Amelia had an agreement with Marriott for the operation of the Hotel Project at Amelia Plantation, which provided, among other things, that each of them would maintain (1) comprehensive general liability policies as to their respective operations, and (2) automobile liability insurance on motor vehicles (as to Amelia "owned or operated" in or about its activities and as to Marriott "owned and operated" in or about the Hotel Project.)

Prior to July 12, 1975, Amelia had delivered possession and control of said van to Marriott for use in its operation of the Hotel Project. On that date the van was being operated by Peterson, an employee of Marriott, with its knowledge and consent and in the course of Peterson's employment by Marriott in the Hotel Project, when Peterson negligently operated the van into collision with a minor child, Cobb, such negligence proximately causing the injury and subsequent death of said minor. The estate of Cobb sued Drake and Travelers, Commercial, and Marriott and Liberty. On March 20, 1978, the case was agreed to be and thereafter was settled for $375,000, with Travelers paying $250,000, Commercial $62,500 and Liberty $62,500, each party reserving its rights.

Commercial had a comprehensive general liability policy insuring Amelia against contractual liability with a limit of $300,000, including an endorsement extending automobile liability insurance with a $100,000 limit for one person. Amelia is not a party to this suit because at a date subsequent to the accident involved it became a bankrupt.

Liberty had a comprehensive general liability policy insuring Marriott against contractual and legal liability arising out of the operation of the Hotel Project or of a motor vehicle (the van) in a limit of $300,000 for bodily injury for each occurrence.

Travelers seeks reimbursement from Marriott, Liberty and Commercial of the $250,000 paid, its attorney's fee and expense paid in defending the original action, interest on such payments and its attorney's fee in bringing this action.

Crossclaim

Commercial crossclaimed against Liberty and Marriott, seeking reimbursement for the $62,500 paid to the settlement, its attorney's fee paid in defending the original action and its attorney's fee in bringing the counterclaim.

The trial judge reviewed the five controlling documents (the lease, the management agreement, and the three insurance policies), and entered a final judgment on November 28, 1983, wherein he made the following findings and conclusions: 1. that the Travelers policy provides primary coverage; 2. that an endorsement of the Liberty Mutual policy provides primary coverage for "any automobile leased to the named insured (Marriott) under a long-term written contract ..." The trial court found this portion of the policy to be ambiguous and therefore construed it so as to provide coverage; 3. that the Commercial Union policy, by its terms, provides no coverage or alternatively, only excess coverage. The trial judge therefore ordered reimbursements among the insurers so that Travelers and Liberty shared the settlement equally and Commercial paid no amount thereof. He also awarded fees and costs to Travelers and Commercial Union from Liberty for the coverage dispute prior to institution of the lawsuit.

We reverse the finding that Liberty Mutual provided primary coverage; reverse the award of attorney fees; and reverse the failure to grant judgment for Marriott. We otherwise affirm the trial court. In reversing the finding that Liberty Mutual provided primary coverage, it should be noted, initially, that this court and another district court have rejected the rationale of Hartford Accident & Indemnity Co. v. Kellman, 375 So.2d 26 (Fla. 3d DCA 1979), cert. denied sub nom. Continental Casualty Co. v. Kellman, 385 So.2d 755 (Fla.1980), which Travelers seeks to invoke to layer coverage according to a "hierarchy" of vicarious liabilities of the named insureds. In Allstate Insurance Co. v. Fowler, ...