Phoenix Assur. Co. of New York v. Bankers & Shippers Ins. Co. of New York

• Decision Date: 09 August 1967
• Docket Number: No. 433,433
• Citation: 202 So.2d 122
• Parties: PHOENIX ASSURANCE COMPANY OF NEW YORK, Appellant, v. BANKERS AND SHIPPERS INSURANCE COMPANY OF NEW YORK, Archie B. Sturgis, Ulysses Griffin and Emma D. Griffin Frank Parker, a minor by his mother and next friend, Leona Parker, and Leona Parker, and Victor Johnson, a minor by his mother and next friend, Betty Jean Johnson, Appellees.
• Court: Florida District Court of Appeals

Page 122

202 So.2d 122

PHOENIX ASSURANCE COMPANY OF NEW YORK, Appellant, v. BANKERS AND SHIPPERS INSURANCE COMPANY OF NEW YORK, Archie B. Sturgis, Ulysses Griffin and Emma D. Griffin Frank Parker, a minor by his mother and next friend, Leona Parker, and Leona Parker, and Victor Johnson, a minor by his mother and next friend, Betty Jean Johnson, Appellees.

No. 433.

District Court of Appeal of Florida, Fourth District.

Aug. 9, 1967.

Rehearing Denied Sept. 26, 1967.

James V. Dolan, of Welsh, Cornell, Carlton & Walsh, Fort Lauderdale, for appellant.

H. Jackson Dorney, of Poole & Vogelsang, Miami, for appellee Bankers & Shippers Ins. Co. of New York.

Norman S. Klein, of Linet, Schwartz & Klein, North Miami Beach, for appellees Parker, Sturgis and Johnson.

MINNET, JAMES F., Associate Judge.

On July 4, 1964, Ulysses Griffin, husband of Emma. D. Griffin, was involved in an accident while driving the station wagon of his wife. Lawsuits for personal injuries resulted from the accident and are now pending.

In August of 1963, Ulysses Griffin insured his pickup truck through Phoenix Assurance Company of New York, hereinafter referred to as 'Phoenix', which 'Family Auto Coverage Policy' was an assigned risk under the Financial Responsibility Law of the State of Florida. The plaintiff's policy provided, among other things, that the coverage would not apply to any loss against which the Named insured or spouse has other valid and collectible insurance. (Emphasis supplied)

In November of 1963, the wife, Emma D. Griffin acquired a 1961 Rambler station wagon but she did not obtain insurance until December 21, 1963, when she purchased her 'Family' combination automobile policy from Bankers and Shippers Insurance Company of New York, hereinafter referred to as 'Bankers'.

Both Mr. and Mrs. Griffin obtained their insurance through Anderson and Sethness, Inc., by Carl Anderson who was agent for Phoenix and Bankers. In the Bankers policy, Carl Anderson as agent executed the following exclusionary endorsement:

'It is hereby agreed and understood no coverage shall apply under this policy for occurrences which take place while any vehicle is being operated by Ulysses Griffin.' Signed 'Emma D. Griffin'.

Both Phoenix and Bankers policies provide $10,000 and $20,000 liability with property damage of $5,000. Bankers policy under 'Other Insurance' provides as follows:

'If the insured has other insurance against a loss covered by Part III of this policy, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability of this policy bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.'

Phoenix's policy under the provision 'Newly Acquired Automobiles' provides as follows:

'The insurance with respect to the newly acquired automobile does not apply to any loss against which the named insured or such spouse has other valid and collectible insurance.'

Following the filing of the personal lawsuits, both Phoenix and Bankers denied coverage and declaratory action was filed by Phoenix. The trial court entered a summary final decree holding:

'(1) the exclusionary endorsement on the Banker's policy void as repugnant to the Financial Responsibility Law, F.S. 324.011, et seq.; (2) at the time of the delivery of the station wagon in November 1963 defendant Phoenix insured all motor vehicles owned by Ulysses and Emma Griffin; therefore, coverage was provided for Ulysses & Emma Griffin for the collision of July 4, 1964 under the policy issued by Phoenix to Ulysses Griffin; (3) both policies were effective and applicable to the July 4 accident and defendant Phoenix and plaintiff Bankers should bear liability equally on a pro rata basis.'

The problem of the applicability of 'other valid and collectible insurance' will be presented with yet untold factual situations and thus the rule of law, if it is to be announced, should answer the question of whether in this case one or the other policy is 'primary insurance'. Many cases have already been considered which arrange and rearrange carrier obligations under multiple coverage policies of clauses relating to primary, secondary, excess, temporary, borrowed or substituted vehicles as limits involving the problem of overlapping or conflicting policy clauses. If a policy...