Del Prado v. Liberty Mut. Ins. Co.
| Decision Date | 17 June 1981 |
| Docket Number | No. 79-2573,79-2573 |
| Citation | 400 So.2d 115 |
| Parties | Guillermo DEL PRADO, et al., Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Edward A. Perse of Horton, Perse & Ginsberg, and R. K. Estes, Miami, for appellants.
Magill & Reid, P. A., Palm Beach, and Edna L. Caruso, West Palm Beach, for appellee.
Appellant was defendant below in a declaratory decree action brought by the plaintiff/insurance carrier on the issue of uninsured motorist coverage. After a non-jury trial, the court determined that no uninsured motorist coverage was provided by the policy. Defendant appeals and we affirm.
The facts are undisputed. Liberty Mutual Insurance Company issued a liability insurance policy to Talisman Sugar Company designed to cover various independent contractors who were contract haulers of sugar cane. These contract haulers, pursuant to a written agreement with Talisman, provided their own trucks and drivers and paid for insurance coverage on these trucks. In accordance with this agreement, Talisman was to procure the insurance coverage naming both the haulers and Talisman as insureds and the contract haulers paid for the coverage by a deduction plan. Talisman had such an agreement with Angel Ruiz for cane hauling. Mr. Ruiz hired Mr. Prado as his truck driver and on June 18, 1976, Mr. Prado was involved in an accident with an allegedly negligent uninsured motorist. Prado demanded arbitration of his claim for uninsured motorists benefits under the Liberty policy. Liberty Mutual in turn sued Prado for a declaratory decree seeking a declaration that the policy provided no uninsured motorists coverage. The trial court ruled for plaintiff finding no coverage and we affirm.
Prado did not file an answer to the complaint for declaratory decree until the day of trial. When the case was called, plaintiff moved for a default but the trial court allowed the case to proceed based upon the stipulation that the defendant's answer constituted no more than a general denial and that there were no affirmative defenses to be tried. Prado presented no evidence other than cross-examination of plaintiff's witnesses. Prado did not sue to enforce any contractual duties between Talisman and Ruiz, who were not parties to this litigation. Prado contends on appeal that Talisman had a contractual duty to provide uninsured motorist coverage but no suit or counterclaim to this effect was filed and we do not pass on the question herein.
Appellee, Liberty Mutual, presented testimony from two representatives of Talisman Sugar Company, one being an experienced insurance agent in its employ who worked directly in placing the coverage, and from one Liberty Mutual representative. All of the plaintiff's evidence was to the effect that uninsured motorists coverage was not wanted by the insured, Talisman, and that said coverage was knowledgeably rejected. It is clear from the evidence adduced at trial that Talisman did not desire uninsured motorist coverage although, at the time of trial plaintiff did not produce evidence of a formal written rejection or any written memoranda supporting the fact of rejection of the coverage. On the basis of this evidence, the trial court...
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