National Union Fire Ins. Co. v. Lenox Liquors, Inc., No. 51266
| Court | Florida Supreme Court |
| Writing for the Court | KARL; OVERTON |
| Citation | 358 So.2d 533 |
| Parties | The NATIONAL UNION FIRE INSURANCE COMPANY, Petitioner, v. LENOX LIQUORS, INC., Respondent. |
| Decision Date | 15 December 1977 |
| Docket Number | No. 51266 |
Page 533
v.
LENOX LIQUORS, INC., Respondent.
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."
Page 534
"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...
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Mid–continent Cas. Co. v. Basdeo, Case No. 08–61473–CIV.
...State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1077 n. 3 (Fla.1998); Nat'l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533, 535 (Fla.1977)); see also Hartford Accident & Indem. Co. v. Beaver, 466 F.3d 1289, 1292 (11th Cir.2006). “The duty to defend must be d......
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Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., No. AR-437
...its insured must be determined from the allegations in the complaint. E.g., National Union Fire Insurance Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla.1978); New Amsterdam Casualty Co. v. Knowles, 95 So.2d 413 (Fla.1957); State Farm Mutual Automobile Insurance Co. v. Universal Atlas Cemen......
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Higgins v. State Farm Fire and Cas. Co., No. SC01-291
...should in no way be as read as a rejection of the principle set forth in National Union Fire Insurance Co. v. Lenox Liquors, Inc., 358 So.2d 533, 536 (Fla.1977), that "[t]he allegations of the [underlying] complaint govern the duty of the insurer to defend." We approve the explana......
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Jones v. Florida Ins. Guar. Ass'n, Inc., No. SC03-1259.
...Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1077 n. 3 (Fla.1998); see also Nat'l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533, 535 (Fla.1977). The duty to defend must be determined from the allegations in the complaint. See, e.g., Nat. Union Fire Ins. Co. v. Lenox Li......
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Mid–continent Cas. Co. v. Basdeo, Case No. 08–61473–CIV.
...State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1077 n. 3 (Fla.1998); Nat'l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533, 535 (Fla.1977)); see also Hartford Accident & Indem. Co. v. Beaver, 466 F.3d 1289, 1292 (11th Cir.2006). “The duty to defend must be determine......
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Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., No. AR-437
...its insured must be determined from the allegations in the complaint. E.g., National Union Fire Insurance Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla.1978); New Amsterdam Casualty Co. v. Knowles, 95 So.2d 413 (Fla.1957); State Farm Mutual Automobile Insurance Co. v. Universal Atlas Cemen......
-
Higgins v. State Farm Fire and Cas. Co., No. SC01-291
...should in no way be as read as a rejection of the principle set forth in National Union Fire Insurance Co. v. Lenox Liquors, Inc., 358 So.2d 533, 536 (Fla.1977), that "[t]he allegations of the [underlying] complaint govern the duty of the insurer to defend." We approve the explanation of th......
-
Jones v. Florida Ins. Guar. Ass'n, Inc., No. SC03-1259.
...Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1077 n. 3 (Fla.1998); see also Nat'l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533, 535 (Fla.1977). The duty to defend must be determined from the allegations in the complaint. See, e.g., Nat. Union Fire Ins. Co. v. Lenox L......