Old Republic Ins. Co. v. Von Onweller Const. Co., 69--600

• Decision Date: 23 September 1970
• Docket Number: No. 69--600,69--600
• Citation: 239 So.2d 503
• Parties: OLD REPUBLIC INSURANCE COMPANY, Appellant, v. VON ONWELLER CONSTRUCTION COMPANY, Inc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 503

239 So.2d 503

OLD REPUBLIC INSURANCE COMPANY, Appellant, v. VON ONWELLER CONSTRUCTION COMPANY, Inc., et al., Appellees.

No. 69--600.

District Court of Appeal of Florida, Second District.

Sept. 23, 1970.

John T. Allen, Jr., of Harrison, Greene, Mann, Davenport, Rowe & Stanton, St. Petersburg, for appellant.

Robert D. Jones of Skelton & Willis, St. Petersburg, for appellee Von Onweller Const. Co., Inc.

PIERCE, Judge.

The lower Court entered its summary judgment for appellee-plaintiff Von Onweller Construction Company, Inc., and ordered recovery of $979.50 plus costs from appellant-defendant Old Republic Insurance Company. In an earlier order the trial Court denied Old Republic's motion to dismiss Von Onweller's complaint and granted Von Onweller's motion to strike Old Republic's defense that the oral contract is barred by the Statute of Frauds. We reverse.

Old Republic issued a policy of insurance to Richard A. Otto and Betty C. Otto insuring their interest and the interest of First National Bank in Fort Lauderdale as first mortgagee in property located in St. Petersburg. A fire occurred resulting in damage to the dwelling which was occupied by Lois A. Traylor. Insurance Adjuster Howard, who was stipulated to be the agent of Old Republic, investigated the fire loss and learned that there was a question of coverage because the named insured was not the same as the owner of record. He reported this to Old Republic but did not advise Mrs. Traylor or Von Onweller at that time. Howard contacted Von Onweller and requested him to submit an estimate of the repairs. Upon submission of the estimate, Howard told Von Onweller: 'If it is O.K. with the owner of the property, it is O.K. with me.' He also gave Von Onweller the plat and page number designating Mrs. Traylor as owner. Von Onweller obtained Mrs. Traylor's authority to make the repairs and started to work immediately. He completed the work and sent the bill to Mrs. Traylor. Some time later he was advised by Howard that there was a coverage mix-up.

The affidavit of Mr. Gene Sexton, a casualty claims adjuster for seven years, indicated that he was familiar with custom and usage in the insurance adjusting trade and in adjusting losses and was familiar with statements made by insurance adjusters to the effect that 'if it is O.K. with the owner of the property it is O.K. with me,' in regard to repairing damaged property; and that such statement is generally regarded as in fact an authorization from the insurance company for the repairing organization to repair the damaged property.

An insurance adjuster is a special agent for the company and his powers and authority are prima facie coextensive with the business intrusted to his care, 18 Fla.Jur., Insurance, § 360; 44 Am.Jur.2d, Insurance, § 1702, which is ascertaining and determining the amount of any claim, loss or damage payable under an insurance contract, and/or effecting settlement of such claim, loss or damage. F.S. §§ 626.0404 and 626.0405, F.S.A. The acts of an adjuster within the apparent scope of his authority are binding on the company without notice to the insured of limitations on his powers. 16A Appleman Ins. L. & P., § 9369; 45 C.J.S. Insurance § 1102. See also Guarantee Mut. Fire Ins. Co. v. Jacobs, Fla.1952, 57 So.2d...