Paris v. State Farm Mut. Auto. Ins. Co., 78-807

• Decision Date: 19 December 1978
• Docket Number: No. 78-807,78-807
• Citation: 365 So.2d 439
• Parties: Murray R. PARIS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 439

365 So.2d 439

Murray R. PARIS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.

No. 78-807.

District Court of Appeal of Florida, Third District.

Dec. 19, 1978.

Richard P. Gumson, Hollywood, for appellant.

Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellee.

Before PEARSON, KEHOE and SCHWARTZ, JJ.

KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from a final judgment entered pursuant to a directed verdict in favor of appellee, defendant below, at the close of appellant's case. We affirm.

Appellant owned a 1974 Chevrolet Impala station wagon which was insured by appellee. Appellant entered into an agreement with John Barbati, a car salesman employed by Warren Henry Volvo Co., to sell his car. Because he was preparing to depart for The relevant portion of appellant's policy provides as follows:

Europe on an extended trip, appellant delivered possession of the station wagon to Barbati, along with the keys and the certificate of title executed in blank for the purpose of permitting Barbati to sell the car. Barbati was to deposit the proceeds of the sale into appellant's checking account. Subsequently, Barbati sold the car and deposited his personal check for the proceeds into appellant's checking account. Barbati's check was returned for insufficient funds. Subsequently, appellant was unable to locate Barbati. Under his policy of insurance with appellee, appellant filed a proof of claim for which appellee denied coverage on the basis that no loss by theft had occurred. Appellant then brought the instant action seeking recovery against appellee for his loss.

"COVERAGE D Comprehensive

(1) The owned motor vehicle. To pay for loss to the owned motor vehicle except loss caused by collision . . . . ."

"EXCLUSIONS SECTION II

This insurance does not apply under:

(c) Coverages D, F, G, H, J and R

(3) While the owned motor vehicle is subject to any bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance, not declared in this policy;

(e) Coverages D and R to loss due to conversion, embezzlement or secretion by any person in possession of the owned motor vehicle under a bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance.

DEFINITIONS SECTION II

LOSS "Whenever used with respect to coverages D, F, G and J means each direct and accidental loss of or damage to

(1) a motor vehicle covered by this policy."

The cause proceeded to trial and, after appellant rested his case, both appellant and appellee moved for a directed verdict. The trial court granted appellee's motion on the basis that there was no "loss" within the terms of the insurance policy. From the granting of this motion and the ensuing final judgment entered by the trial court appellant appeals.

Appellant's sole point on appeal is that the trial court erred in directing a verdict for appellee. In support of this contention he argues that the trial court's decision is in conflict with this court's opinion in United Services Automobile Assoc. v. Park, 173 So.2d 162 (Fla. 3d DCA 1965).

Although the policy provisions in Park...