National Union Fire Ins. Co. v. Lenox Liquors, Inc.

• Decision Date: 08 February 1977
• Docket Number: No. 75--1869,75--1869
• Citation: 342 So.2d 532
• Parties: The NATIONAL UNION FIRE INSURANCE COMPANY, Appellant, v. LENOX LIQUORS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 532

342 So.2d 532

The NATIONAL UNION FIRE INSURANCE COMPANY, Appellant, v. LENOX LIQUORS, INC., Appellee.

No. 75--1869.

District Court of Appeal of Florida, Third District.

Feb. 8, 1977.

Rehearing Denied March 1, 1977.

Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O'Hara and Richard A. Sherman, Miami, for appellant.

Theodore M. Trushin and Michael B. Solomon, Miami Beach, for appellee.

Before HENDRY, C.J., and BARKDULL and NATHAN, JJ.

BARKDULL, Judge.

The National Union Fire Insurance Company issued a liability policy to Lenox Liquors, Inc., which provided coverage, in part, as follows:

'The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of

a) bodily injury or

b) property damage

to which this insurance applies, caused by an occurrence, * * *'

Occurrence is defined as:

"occurrence' means an accident, including injurious exposure to conditions, Which results, during the policy period, in Bodily injury or property damage Neither expected nor intended from the standpoint of the insured.'

While the policy was in full force and effect covering a liquor store operated by Lenox, one McClendon (who was a thirteen-year old minor with the physical attributes of a much older person) and another entered the premises operated by Lenox. McClendon and his companion were possessed of a beebee gun and pellet gun, whereupon Rosen (President of Lenox Liquors, Inc.) discharged a shotgun, injuring McClendon and his companion. Subsequently, McClendon brought an action against Lenox and Rosen, charging the injury was caused by '* * * willfully and wantonly, firing a loaded shotgun at the Plaintiff LEROY McCLENDON, * * *', an intentional tort. Lenox, the insured, called upon National to defend; National refused. Lenox then filed a third party complaint against National, claiming indemnification in the event it was liable to McClendon. National moved for a judgment on the pleadings, contending that the allegations of the McClendon complaint (showing intentional tort) relieved it from responsibility to defend. The trial judge granted the judgment on the pleadings, with the following reservations:

'* * * This judgment is without prejudice as to LENOX LIQUORS, INC. and ROBERT ROSEN to file an amended third party complaint if the Plaintiff in the main suit files a subsequent action so as to bring the allegations therein within the coverage of the subject policy.'

Thereafter, the matter of McClendon v. Lenox proceeded and, on the evening of the trial, the matter was settled and the following is found in the formal settlement papers:

'* * * Complaint would have been tried upon the negligent conduct of the Defendants rather than upon the Plaintiffs' claim of willful conduct of the Defendants, and this settlement has been reached upon this basis.'

Subsequently, after Lenox had paid the settlement claim, it instituted the instant action against National for recovery under the terms of the policy, to wit: indemnification for the settlement agreement, costs, and attorney's fees incident to the defense of the McClendon action. Thereupon the parties stipulated ¹ to certain facts and the cause proceeded non-jury, whereupon a final judgment was rendered in favor of Lenox in terms and figures, in part, as follows:

'* * * this Court finds as a matter of law that the Plaintiff is not barred from proceeding in the instant suit because of res judicata or estoppel by judgment based upon the Judgment of the Pleadings entered by this Court in favor of the Defendant here, and against the Plaintiff, dated August 13, 1971, in case number 71--1597; said case being styled Leroy McClendon, et al. v. Lenox Liquors, Inc., et al. This Court also finds as a matter of law, based upon the Court's findings of facts set forth below, that the Plaintiff's claim herein falls within the exception to the general rule relative to a liability insuror's duty to defend which is usually governed by the allegations of the complaint filed against its insured. The exception to this rule states that a liability insurer is obligated to defend its insured when such insuror has, or should reasonably be expected to have, actual knowledge of facts which brings the claim within the purview of the policy provision.

'The parties hereto have filed with the Court a Stipulation of Fact which the Court has considered as evidence herein. Upon consideration, this Court hereby adopts said Stipulation of Fact as its findings of fact and, in addition, based upon said Stipulation of Fact, hereby makes additional findings of fact upon which this Final Judgment is predicated. This Court finds that on January 24, 1969, Robert Rosen, President of the Plaintiff herein, did shoot one Leroy McClendon with a shotgun, thinking that said Leroy McClendon was an armed robber threatening life and property instead of being, as alleged by McClendon in case number 71--1597, a minor who had come into the store as a customer only. As such, this Court finds that the action of Rosen was an 'occurrance, which is defined in the Defendant's policy of insurance as 'an accident . . . which results . . . in bodily injury . . . neither expected nor intended from the standpoint of the insured ". The Court...