Ramos v. Northwestern Mut. Ins. Co.

• Decision Date: 26 May 1976
• Docket Number: No. 48510,48510
• Citation: 336 So.2d 71
• Parties: Mercedes M. RAMOS, Petitioner, v. NORTHWESTERN MUTUAL INSURANCE COMPANY and Lawrence J. Williams, Respondents.
• Court: Florida Supreme Court

Page 71

336 So.2d 71

Mercedes M. RAMOS, Petitioner, v. NORTHWESTERN MUTUAL INSURANCE COMPANY and Lawrence J. Williams, Respondents.

No. 48510.

Supreme Court of Florida.

May 26, 1976.

Rehearing Denied Aug. 31, 1976.

Edward A. Perse, of Horton, Perse & Ginsberg, and Grover Ciment, Weinstein & Stauber, Miami Beach, for petitioner.

Magill & Sevier, P.A., and Jeanne Heyward, Miami, for respondents.

ROBERTS, Justice.

This cause is before us on petition for writ of certiorari, buttressed by the District Court of Appeal, Third District's certificate that in disposing of the cause, it had passed upon a question of great public interest. We have jurisdiction pursuant to Article V, Section 3(b)(3).

The controlling question in the cause certified to us by the District Court involves whether or not an automobile insurance carrier may still be permitted to avoid liability pursuant to a provision in its contract requiring the insured to give his cooperation in connection with any claim of which the carrier would have responsibility under the contract notwithstanding recent developments in the law. These recent developments referred to include Florida's Financial Responsibility Act, ¹ provisions contained in Florida Automobile Reparations Reform Act, and decisions of this Court including Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), Beta Eta House Corp., Inc. v. Gregory, 237 So.2d 163 (Fla.1970), Thompson v. Commercial Union Ins. Co., 250 So.2d 259 (Fla.1971), Stecher v. Pomeroy, 253 So.2d 421 (Fla.1971), Godshall v. Unigard Ins. Co., 281 So.2d 499 (Fla.1973), and Allred v. Chittenden Pool Supply Co., Inc., 298 So.2d 361 (Fla.1974).

Petitioner, Mercedes Ramos, sued Lawrence Williams and Respondent Northwestern Mutual Insurance Company to recover for injuries resulting from an automobile collision proximately caused by the negligence of Williams. Respondent Northwestern answered admitting the issuance of the policy of automobile liability insurance to defendant Williams but further affirnatively alleging that the policy of insurance does not provide coverage for the defendant in this case because the accident was not reported by him to his insurance carrier nor has he cooperated with Northwestern as required by the terms of the policy of automobile liability insurance. The trial judge granted Northwestern's motion to sever the trial on coverage from the original claim relating to liability and damages. Except as to the issue of coverage the cause proceeded by jury trial on October 21, 1974, and verdict was returned in the amount of $52,037.00. Final judgment was entered against Williams in the amount of $52,037.00. Entry of judgment with respect to Northwestern was reserved by the trial court for determination at a later date.

After non-jury trial on the issue of insurance coverage, examination of the pleadings, evidence, and memoranda of law submitted by the respective parties, the trial court entered final judgment finding no coverage by the insurance carrier because of the total non-cooperation of the insured. Specifically, the trial court made the following findings of fact and conclusions of law:

'1. The plaintiff and Lawrence J. Williams, hereinafter referred to as WILLIAMS, were involved in a motor vehicular accident on November 28, 1969. At the time, WILLIAMS was the insured under a policy of automobile liability insurance issued by Northwestern Mutual Insurance Company, hereinafter referred to as NORTHWESTERN.

'2. On August 9, 1971, the plaitniff initiated this action against WILLIAMS and NORTHWESTERN.

'3. NORTHWESTERN answered plaintiff's complaint alleging, among other things, that there was no coverage for WILLIAMS because of his failure to give NORTHWESTERN notice of the accident and his failure to cooperate with NORTHWESTERN.

'4. Actual service of process was never made upon WILLIAMS, notwithstanding valiant and persistent efforts by plaintiff's counsel to locate WILLIAMS and effect such service.

'5. Upon appropriate motion the Court found that WILLIAMS was concealing his whereabouts and attempting to avoid service of process and, accordingly, impressed jurisdiction over WILLIAMS on May 2, 1974.

'6. The cause proceeded to trial, except as to the issue of coverage, on October 21, 1974, and verdict was returned for plaitniff in the sum of $52,037.00.

'7. NORTHWESTERN received notice of the accident from plaintiff's counsel on December 29, 1969. However, WILLIAMS never contacted NORTHWESTERN, failed to report the accident, failed to notify NORTHWESTERN of his apparent changes of address and, despite efforts of NORTHWESTERN And plaintiff's counsel, was never located.

'8. WILLIAMS breached the terms of the policy issued by NORTHWESTERN because of his total failure to cooperate. Further, the breach was material and substantially prejudiced NORTHWESTERN.

'It is, therefore, the opinion and judgment of this Court that WILLIAMS was not entitled to coverage under the policy and that NORTHWESTERN was correct in its denial of coverage. The plaintiff relies in part upon the case of American Fire and Casualty Company v. Collura, Fla. (App.) 1964, 163 So.2d 784. Such reliance, however, is misplaced because there the insured notified his carrier of the accident and his whereabouts were known to all parties throughout the proceedings. Further, in considering the issue of cooperation in that case the Second District Court of Appeal stated at page 788:

"In considering the issue of breach of a cooperation clause in an insurance policy, it must always be borne in mind that in order for the company to avoid liability by reason of the insured's breach, the company must show that it has exercised diligence and good faith in bringing about the cooperation of the insured, and that it has in good faith complied with the terms and conditions of the policy. (cases cited) On the other hand the insured is bound to cooperate with his insurer and to abide, both in letter and in spirit, with the terms of the contract; or her should At least be held to reasonably strict compliance with the terms thereof.'

'Here, not only did NORTHWESTERN exercise diligence in attempting to locate WILLIAMS but, also, was precluded by WILLIAMS' concealment from 'bringing about' his cooperation. Moreover, WILLIAMS totally disregarded his own responsibility in the premises. (Emphases supplied)'

Plaintiff appealed to the District Court of Appeal, Third District, which affirmed the judgment of the trial court although expressly stating that it did so in reliance on past precedent. The District Court opined that the plaintiff made a persuasive argument and but for precedent and this Court's ruling in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), wherein this Court stated that District Courts should not change law as a matter of public policy, the District Court would have been inclined to reverse the trial court's judgment. Relative to existing precedent, the District Court stated:

'Under existing Florida law, we conclude that the trial judge's order should be affirmed. American Fire and Casualty Company v. Vliet, 148 Fla. 568, 4 So.2d 862; American Fire and Casualty Company v. Collura, Fla.App.1964, 163 So.2d 784; Bordettsky v. Hertz Corporation, Fla.App.1965, 171 So.2d 174; Anno. 60 ALR2d 1146. However, the appellant has made a persuasive argument that because of the modern trend of requiring that motorists carry insurance (§ 627.733, Fla.Stat.; 7 Am.Jur.2d, Automobile Insurance, §§ 4, 6 ) insurance carriers are real parties in interest in automobile accident litigation. Stecher v. Pomeroy, Fla.1971, 253 So.2d 421; Godshall v. Unigard Insurance Company, Fla.1973, 281 So.2d 499; Allred v. Chittenden Pool Supply Inc., Fla.1974, 298 So.2d 361. That, because of the mandatory requirements of the no fault insurance act adopted in recent years in Florida, these older decisions should be ignored and the law should be changed as a matter of public policy and a carrier should suffer the...