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

• Decision Date: 15 December 1977
• Docket Number: No. 51266,51266
• Citation: 358 So.2d 533
• Parties: The NATIONAL UNION FIRE INSURANCE COMPANY, Petitioner, v. LENOX LIQUORS, INC., Respondent.
• Court: Florida Supreme Court

Page 533

358 So.2d 533

The NATIONAL UNION FIRE INSURANCE COMPANY, Petitioner, v. LENOX LIQUORS, INC., Respondent.

No. 51266.

Supreme Court of Florida.

Dec. 15, 1977.

Rehearing Denied June 5, 1978.

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

Michael B. Solomon of Theodore M. Trushin Law Offices, Miami Beach, for respondent.

KARL, Justice.

This cause is before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, Third District, 342 So.2d 532 (Fla. 3rd DCA 1977), which conflicts directly with Capoferri v. Allstate Insurance Company, 322 So.2d 625 (Fla. 3rd DCA 1975), thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

Carrying a BB and pellet gun, McClendon, a thirteen-year-old minor, and another entered respondent's liquor store. Believing that Lenox Liquors was being held up by McClendon, Rosen, president of Lenox Liquors, shot McClendon. McClendon brought an action against Lenox and Rosen, alleging that Rosen assaulted him by maliciously, willfully and wantonly firing a loaded shotgun at him striking him in the back, thereby causing grievous personal injury. The complaint expressly charged:

"3. That on or about January 24, 1969, Plaintiff was a patron of the Defendant, LENOX LIQUORS, INC. in its said store and at that time and place, the Defendant, ROBERT ROSEN, assaulted the Plaintiff LEROY McCLENDON by maliciously, willfully and wantonly, firing a loaded shotgun at the Plaintiff LEROY McCLENDON, striking the said Plaintiff in the back with buckshot and thereby causing Plaintiff grievous personal injuries, all without cause or provocation on the part of the Plaintiff."

"4. That as a direct result of the aforesaid assault and battery by the said ROBERT ROSEN, the Plaintiff suffered grievous, painful wounds in his back, chest, lungs and limbs and suffered shock and injury to his nervous system, and suffered and still suffers severe bodily pain and discomfort from said wounds inflicted upon his person, all of which injury is permanent and continuing in nature, causing great mental and physical pain and suffering and requiring extensive medical care and treatment now and in the future."

Respondent called upon petitioner, its insurer, to defend, but petitioner refused. Respondent then filed a third party complaint against petitioner and claimed indemnification in the event it was liable to McClendon. Petitioner moved for judgment on the pleadings and argued that the allegations of McClendon's complaint charging intentional tort relieved it from responsibility to defend. The trial judge granted judgment on the pleadings but explained:

" . . . (T)he Court finds that the main suit filed herein alleges a wilful, wanton and malicious assault and battery as to the Third Party Plaintiffs, Lenox Liquors, Inc. and Robert Rosen. That Third Party Defendant's policy of insurance does not provide coverage for bodily injury that was expectedly or intentionally inflicted by an insured.

" . . . 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, respondent and McClendon settled the matter and entered into a joint stipulation which provided inter alia:

"1. That a Complaint for damages, based upon the alleged willful conduct of the Defendants, which willful conduct is expressly denied by the Defendants, for alleged injuries and damages sustained by the minor Plaintiff as a result of the certain incident which occurred on or about January 24, 1969, has been heretofore filed herein;

"2. That through discovery taken herein, parties have agreed that had settlement not been reached herein, the allegations in the Plaintiffs' 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."

After settlement and payment, respondent instituted an action against petitioner under the terms of the policy for indemnification for settlement, costs and attorney's fees incident to defense of McClendon's action. The trial judge entered final judgment for respondent and found that as a matter of law, respondent is not barred from proceeding in the instant suit because of res judicata or estoppel by judgment and determined that respondent's claim falls within the exception to the general rule pertaining to liability insurer's duty to defend being governed by the allegations of the complaint filed against its insured, since the exception to the rule states that an insurer is obligated to defend its insured when the insurer knows or should reasonably be expected to know the facts which bring the claim within the purview of the policy. The Court expressly stated:

" . . . Rosen neither expected nor intended to injure an innocent customer of Plaintiff's liquor store, but rather only expected or intended to injure an armed robber threatening his life and the Plaintiff's property. Herein, Rosen's acts were an accident in that his injuring of an innocent customer was unintended and undesigned."

Upon appeal, the District Court of Appeal, Third District, affirmed the final judgment and opined that an...