Pomona Park Bar and Package Store v. Excelsior Ins. Co., DD-345

CourtCourt of Appeal of Florida (US)
Citation347 So.2d 136
Docket NumberNo. DD-345,DD-345
PartiesPOMONA PARK BAR AND PACKAGE STORE, Appellant, v. EXCELSIOR INSURANCE COMPANY, Appellee.
Decision Date15 June 1977

Page 136

347 So.2d 136
POMONA PARK BAR AND PACKAGE STORE, Appellant,
v.
EXCELSIOR INSURANCE COMPANY, Appellee.
No. DD-345.
District Court of Appeal of Florida, First District.
June 15, 1977.
Rehearing Denied July 15, 1977.

William L. Townsend, Jr. of Walton & Townsend, Palatka, for appellant.

Jackson Bryan, Palatka, Carl M. Mathison, Jr., Palm Beach, A. Craig Cameron, C. Chobee Ebbets, and Cliff B. Gosney, Jr. of Gosney, Cameron & Parsons, Daytona Beach, Robert Wilhelm, Jacksonville Beach, James L. Padgett, Jr., Crescent City, for appellee.

ERVIN, Judge.

This appeal involves a liability insurance coverage question. Pomona Park Bar and Package Store was sued by Steven J. Miller, a minor, and Margaret Miller, his mother, who allege that Pomona Park negligently sold alcoholic beverages to Steven Miller and proximately caused the accident in which the 16-year old was injured. Excelsior Insurance Company initially undertook

Page 137

defense on behalf of Pomona Park, but moved to withdraw as counsel and sought summary judgment based on an exclusionary clause in the insurance policy. That exclusionary clause applies:

"(h) to bodily injury or property damage for which the insured or his indemnitee may be held liable

(1) as a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages, or

(2) if not so engaged, as an owner or lessor of premises used for such purposes, if such liability is imposed

(i) by, or because of the violation of, any statute, ordinance or regulation pertaining to the sale, gift, distribution or use of any alcoholic beverage, or

(ii) by reason of the selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person;

but part (ii) of this exclusion does not apply with respect to liability of the insured or his indemnitee as an owner or lessor described in (2) above;"

The trial judge granted Excelsior's motion for summary judgment, finding the exclusionary clause above is not conflicting or ambiguous. The court expressly found it could not rewrite the parties' entire contract. We reverse.

Clause (h)(1) excludes coverage for any bodily injury for which Pomona Park may be held liable while engaged in the business of selling and serving alcoholic beverages. Since it is undisputed that such is Pomona Park's sole business, it has no premises liability coverage for...

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2 cases
  • Excelsior Ins. Co. v. Pomona Park Bar & Package Store
    • United States
    • United States State Supreme Court of Florida
    • March 8, 1979
    ...on petition for writ of certiorari to review the decision of the First District Court of Appeal in Pomona Park Bar & Package Store v. Excelsior Insurance Co., 347 So.2d 136 (Fla.1st DCA 1977), which directly conflicts with United States Fidelity and Guaranty Co. v. Hazen, 346 So.2d 632 (Fla......
  • Sapp v. City of Tallahassee, DD-251
    • United States
    • Court of Appeal of Florida (US)
    • July 15, 1977
    ...would follow the rule resolving such ambiguities against the insurer, the drafter of the contract. Pomona Park Bar & Package Store v. Excelsior Ins. Co., 347 So.2d 136 (Fla. 1st DCA 1977). Opinion filed June 15, 1977. However the agreement's provisions are not necessarily dispositive of the......

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