Midstate Hauling Co. v. Reliable Insurance Co.
| Decision Date | 25 January 1971 |
| Docket Number | No. 29582.,29582. |
| Citation | 437 F.2d 616 |
| Parties | MIDSTATE HAULING CO., Inc., et al., Plaintiffs-Appellees, v. RELIABLE INSURANCE CO., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kenneth L. Ryskamp, Richard S. Fuller, Fuller & Brumer, and Bolles, Goodwin, Ryskamp & Ware, P. A., Miami, Fla., for appellant.
Leon H. Handley, of Gurney, Gurney & Handley, P. A., Bruce Culpepper, Jeff B. Clark, S. Victor Tipton, Rodgers & Kirkland, Orlando, Fla., for appellees.
Before BELL, DYER and RONEY, Circuit Judges.
This case involves an argument between two insurance companies as to which should be required to provide coverage for a truck owner, against whom a third party had obtained a personal injury judgment for $120,000. The trial court, without a jury, found that both companies had policies effective on the date of the accident and that each was responsible for one-half of the judgment. Being of the opinion that the trial judge properly applied the law of Florida in this diversity suit, we affirm.
Midstate Hauling Co., Inc., the plaintiff, was a common carrier operating a trucking business subject to the controls of the Florida Public Service Commission.1 The rules of the Commission implement the Florida statute requiring that a certificate of insurance must be filed and approved as a condition to the issuance of a permit to do business.2 Defendant Reliable Insurance Company had issued its liability policy on May 25, 1965, and had filed a certificate of insurance with the Commission on May 28, 1965. On June 4, 1965, the president of Midstate called its insurance representative to cancel that policy. On June 5, 1965, a Midstate truck was involved in an accident, which resulted in the $120,000 judgment.
The truck was also insured by National Indemnity Company, joined here as a party plaintiff. The National policy was issued prior to the Reliable policy, but provided for contribution in the event of joint coverage.3 National had not filed its policy with the Public Service Commission, but upon Reliable's failure to defend on demand, undertook to defend Midstate against the personal injury action.
The controlling issue is whether or not the cancellation of the Reliable policy was effective prior to the June 5 accident.
On June 14, 1965, Reliable mailed a notice of cancellation which was received by the Commission on June 18, 1965, thus making the cancellation effective on July 18, 1965, under the Commission rules.
Reliable contends that the public purposes of the statute were satisfied, other insurance having been in effect on the date of the accident, and that the 30-day notice provision should not apply. In any event, it says that the cancellation provision should apply only to the minimum coverage required by law and that its liability should not exceed $10,000.4 As a last resort, Reliable argues that it should be required to provide coverage only in excess of the $100,000 limits of National's policy, and be held liable for only $20,000. Refusing all of these multiple choices offered by the appellant, we think the law supports the trial court's judgment that Reliable was liable for $60,000, one-half of the judgment against the insured, plus interest, costs and attorney's fees.
As to the appellant's first argument, the law appears to be clear that if the 30-day notice provision were only in the policy and not required by law, the insured and insurer could jointly waive the policy requirement. A policy of insurance may be cancelled by mutual consent of the contracting parties notwithstanding a provision in the policy specifying a method of cancellation. Allstate Insurance Company v. Doody, 193 So.2d 687 (Fla.App.1967). However, the State has...
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