Mount Vernon Fire Ins. Co. v. Editorial America, S.A., 79-1020

• Decision Date: 14 August 1979
• Docket Number: No. 79-1020,79-1020
• Citation: 374 So.2d 1072
• Parties: MOUNT VERNON FIRE INSURANCE COMPANY, Appellant, v. EDITORIAL AMERICA, S.A., and John Mercer Terminal Warehouse Company, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 1072

374 So.2d 1072

MOUNT VERNON FIRE INSURANCE COMPANY, Appellant, v. EDITORIAL AMERICA, S.A., and John Mercer Terminal Warehouse Company, Inc., Appellees.

No. 79-1020.

District Court of Appeal of Florida, Third District.

Aug. 14, 1979.

Rehearing Denied Sept. 25, 1979.

Walton, Lantaff, Schroeder & Carson and James Knight, Miami, for appellant.

Smith, Mandler, Smith, Werner, Jacobowitz & Fried and Richard A. Friend, Miami Beach, Magill, Sevier & Reid, Palm Beach, for appellees.

Before BARKDULL and HUBBART, JJ., and CHAPPELL, BILL G., Associate judge.

PER CURIAM.

Mount Vernon Fire Insurance Company, the defendant, takes this interlocutory appeal from orders granting motions for partial summary judgment in favor of appellees, Editorial America, S.A., plaintiff, and John Mercer Terminal Warehouse Company, Inc., cross-plaintiff. Notwithstanding the defense raised by the insurer that John Mercer Terminal Warehouse Company, Inc. failed to give timely notice to the insurer and therefore prejudiced the rights of the insurer so that the insurer is entitled to deny coverage on the subject policy, the motions stated that there was no genuine issue as to any material fact on the issue of insurance coverage. In support of their motions, appellees argue that any provision requiring notice had been waived, or at best, the language pertaining to notice and proof of loss is ambiguous, and that said ambiguity should, as a matter of law, be resolved in favor of coverage and against the insurer.

The issues arise from the facts that the jacket of the subject policy was a standard fire insurance policy to which was attached, prior to its issuance, endorsements converting it into a Warehouseman's Legal Liability Policy. The policy was issued for a one year period beginning January 4, 1974, and extended an additional year by endorsement to January 4, 1976, but it was cancelled for nonpayment of premiums on July 10, 1975.

In March, 1975, Editorial America, S.A., discovered that its paper stored in Mercer's warehouse had been damaged by water. They discovered additional damages in April, May and June, 1975. They orally reported the damages to the insured, Mercer, upon each discovery and forwarded a written notice of claim under date of June 26, 1975. It was not until September 3, 1975 that the insurer, Mount Vernon, received notice of loss. Mount Vernon argued that it was prejudiced by such late notice because it was prevented from making an adequate and timely investigation as to cause and damages, protecting its subrogation rights, and taking steps to prevent additional damages from recurrences.

Obviously, we must determine whether the requirements of notice and proof of loss were waived or whether the provisions of the endorsement are ambiguous. Section 8 of the endorsement reads:

"8. Provisions of policy referring to notice and proof of loss are hereby waived, it being agreed that the Insured shall use due diligence to report all losses as soon as they may have knowledge thereof and file proof of loss as promptly as may be practicable."

Appellees argue that the first clause of this section constitutes an express waiver, but even if the entire wording of the section is considered, its contents are ambiguous. Possibly, we might agree with this contention if Section 8 was all we had to consider, but it was long ago established that one part of an agreement may be resorted to for the explanation of the meaning of the language of another part. Pensacola Gas Co. v. Lotzes and...