National Indem. Co. v. Corbo, 70--814

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore HENDRY and SWANN, JJ., and CULLEN, RALPH O.; CULLEN, RALPH O.
Citation248 So.2d 238
PartiesNATIONAL INDEMNITY CO., Appellant, v. Anita CORBO, a minor, by and through her natural father and next friend, Anthony Corbo, et al., Appellees.
Docket NumberNo. 70--814,70--814
Decision Date04 May 1971

Page 238

248 So.2d 238
Anita CORBO, a minor, by and through her natural father and next friend, Anthony Corbo, et al., Appellees.
No. 70--814.
District Court of Appeal of Florida, Third District.
May 4, 1971.
Rehearing Denied June 9, 1971.

Page 239

Carey, Dwyer, Austin, Cole & Selwood and Edward A. Perse, Miami, for appellant.

Corlett, Merritt, Killian & Okell, West Palm Beach, Preddy, Haddad, Kutner & Hardy, and Charles A. Hayes, Miami, for appellees.

Before HENDRY and SWANN, JJ., and CULLEN, RALPH O., Associate Judge.

CULLEN, RALPH O., Associate Judge.

This is an appeal by National Indemnity Company from a summary judgment finding it was obligated under its automobile liability policy to provide a defense to the insured, one of the defendants in the lower court.

Said insured and his wife, a defendant below, were the owners of a German shepherd dog which was kept at home during the day and used as a watchdog at their dry-cleaning plant at night. The dog was transported daily in the family car, driven by some member of the family. On the day in question, insureds' son invited the plaintiff to accompany him on the ride from his home to the plant to leave the dog. En route, the son made a stop at a drug store, leaving the plaintiff and the dog in the car. While the son was in the store, the dog bit the plaintiff. Plaintiff sued for damages and also joined as parties defendant National Indemnity Company and Gulf Insurance Company. At the time of the accident the defendant owners had two policies of insurance, a standard automobile liability policy issued by National, and a comprehensive personal liability policy or 'homeowner's policy' issued by Gulf.

Both carriers moved for summary judgment. The Court denied National's motion and found that National was obligated to furnish the insureds with a defense of the action and pay any judgment rendered against them up to the amount of its policy limits. Gulf's motion was granted with a finding that Gulf was under no obligation to defend or to assume any liability for any judgment. From this judgment, National appeals.

The pivotal question to be answered is whether the alleged injury to plaintiff in the circumstances of this case was 'caused by accident and arising out of the * * * use of the automobile,' within the meaning of National's policy.

Under the terms of the automobile liability policy, National is required to defend claims against insured and to provide coverage for damages for bodily injuries:

'* * * sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.'

The homeowner's policy issued by Gulf requires it to defend against claims for damages for which there is coverage under the policy and contains the following exclusionary provision:

'under Coverages E and F, to the ownership, maintenance, operation, use, loading or unloading of (1) automobiles * * * while away from the premises, or the ways immediately adjoining.'

In reliance upon the above quoted provisions of their respective policies, each carrier denied liability, National contending that the...

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    ...or having connection with' the use of the car" (id. at p. 32, 108 Cal.Rptr. 737, quoting National Indemnity Co. v. Corbo (Fla.App.1971) 248 So.2d 238, 240). Hartford is not persuasive authority because its causal analysis approximates the "any cause in fact" test that we have rejected in fa......
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    ...`growing out of,' `flowing from,' `incident to' or `having a connection Page 533 with.'" Id. at 965 (citing Nat'l Indem. Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971)); see also Allstate Ins. Co. v. Safer, 317 F.Supp.2d 1345, 1350 n. 4, 1354 (M.D.Fla.2004) (finding that the phrase "arising......
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