Safeco Ins. Co. of America v. Hawkeye-Security Ins. Co.

• Decision Date: 28 January 1969
• Docket Number: No. I-357,HAWKEYE-SECURITY,I-357
• Citation: 218 So.2d 759
• Parties: SAFECO INSURANCE COMPANY OF AMERICA, a corporation, organized and existing under the laws of the State of Washington, Appellant, v.INSURANCE COMPANY, a corporation organized and existing under the laws of the State of Iowa, Appellee.
• Court: Florida District Court of Appeals

Page 759

218 So.2d 759

SAFECO INSURANCE COMPANY OF AMERICA, a corporation, organized and existing under the laws of the State of Washington, Appellant, v. HAWKEYE-SECURITY INSURANCE COMPANY, a corporation organized and existing under the laws of the State of Iowa, Appellee.

No. I-357.

District Court of Appeal of Florida, First District.

Jan. 28, 1969.

Howell, Kirby, Montgomery, Sands & D'Aiuto, Jacksonville, for appellant.

Green & Strasser, Daytona Beach, for appellee.

SPECTOR, Judge.

This is an appeal from a final judgment in a declaratory action between two automobile liability carriers. The lower court held that appellant had the primary insurance coverage for all of the insureds here involved.

Appellant issued a liability policy to one Mrs. Strickler. The said policy had a clause excluding from its coverage any person not related to the insured by blood, marriage, or adoption. Mrs. Strickler's daughter, Judy, permitted her friend, Janet Hansen, to drive the car so insured by Safeco. Janet Hansen was not a member of the Strickler family within the exclusionary clause mentioned above. An accident occurred while Miss Hansen was driving, as a result of which a suit for damages against her and Mrs. Strickler was filed by one Ronald William Morrison and his father.

Appellee Hawkeye had issued an automobile liability policy to Miss Hansen's mother which expressly provided coverage for Miss Hansen even when she was driving an automobile owned by someone else, as was the case in the accident which precipitated this action. By its complaint, appellee alleged that appellant Safeco had primary coverage and that it had tendered defense of the Morrison's suit against Miss Hansen and Mrs. Strickler to Safeco but the latter had refused, relying upon the exclusionary clause in its policy to Mrs. Strickler which reads as follows:

'Notwithstanding any contrary provision in the policy, insurance for bodily injury liability and property damage liability shall not apply to any person who is not a member of the named insured's family related by blood, marriage or adoption.'

The complaint concluded with the prayer that the court declare that the defendant Safeco had primary coverage under its policy issued to Mrs. Strickler and should therefore be required to assume the defense of all parties defendant in the suit for damages brought by the Morrisons. Additionally, Hawkeye asked the court to adjudge that its liability, if any, be limited to excess coverage over that provided by the defendant Safeco's policy.

In response, the defendant Safeco counterclaimed for an adjudication that Hawkeye's coverage was primary and that the latter should defend the damage action; and, further, Safeco asked the court to rule that its coverage, if any, was in excess of the coverage provided by plaintiff Hawkeye's policy in consequence of which its liability should be limited to that which might be in excess of the plaintiff's.

As indicated in the forepart of this opinion, the lower court held that Safeco is the primary insurer and has primary coverage for both the owner, her daughter, and the driver, Miss Hansen, in the case brought against them by the Morrisons. In arriving at its decision, the lower court considered the issues raised by the pleadings and the policies issued by the appellant and appellee.

The trial court made no expression of the basis for its order; however, it is apparent from the pleadings and the briefs that the court ruled Safeco's exclusionary clause invalid...