Sapp v. LaViolette, O--97

• Decision Date: 29 December 1970
• Docket Number: No. O--97,O--97
• Citation: 242 So.2d 483
• Parties: Arletha C. SAPP, individually, and as natural mother and next friend of Michael Joe Sapp, a minor, Petitioner, v. David F. LaVIOLETTE and Carol LaViolette, husband and wife, and United Services Automobile Association, Respondents.
• Court: Florida District Court of Appeals

Page 483

242 So.2d 483

Arletha C. SAPP, individually, and as natural mother and next friend of Michael Joe Sapp, a minor, Petitioner, v. David F. LaVIOLETTE and Carol LaViolette, husband and wife, and United Services Automobile Association, Respondents.

No. O--97.

District Court of Appeal of Florida, First District.

Dec. 29, 1970.

Joseph Q. Tarbuck, Pensacola, for petitioner.

Fisher, Hepner & Hertz, Pensacola, for respondents.

WIGGINTON, Judge.

Petitioner seeks review by common law certiorari of an order rendered by the trial court which denies petitioner's motion for summary judgment on count one of her complaint, and judicially declares the extent of liability imposed upon respondent, United Services Automobile Association, under the two policies of automobile liability insurance issued by it to the remaining respondents, David F. LaViolette and his wife, Carol LaViolette. The propriety of this proceeding is questioned.

Petitioner filed her complaint in the trial court alleging in count one thereof that defendant, United Services Automobile Association, had theretofore issued to the defendants, David F. LaViolette and his wife, Carol LaViolette, separate policies of automobile liability insurance covering motor vehicles individually owned by each of them in their own right; that both such insurance policies were in full force and effect when Carol LaViolette's automobile, then being operated by her husband, David F. LaViolette, was negligently driven in such manner that it collided with a bicycle on which plaintiff's minor son was riding, resulting in personal injuries to the minor and damages to plaintiff as his mother; that the amount of damages to which the plaintiff is entitled will exceed the financial limits contained in the insurance policy covering the wife's automobile; and that the full amount of insurance coverage afforded by both of the policies issued by defendant automobile association to the defendants husband and wife on their respective vehicles should be declared to be available and answerable for the damages suffered by plaintiff in this case. Count one of the complaint concluded with the prayer that the court render its judgment judicially declaring plaintiff's right to recover against both of the policies owned by the individual defendants and issued by the defendant association. Count two of the complaint is in the usual form seeking damages arising from the negligent operation of the defendant wife's automobile by the defendant husband which proximately caused the injuries suffered by plaintiff's minor son.

After issue was joined by the answer filed by the defendants, interrogatories were propounded and answered, and the essential facts agreed upon by the parties, plaintiff moved for a summary judgment on count one of her complaint or, in the alternative, for a declaratory judgment in accordance with the prayer of her complaint. Upon consideration of the pleadings and other evidence in the file, the trial court rendered its order in which it denied plaintiff's motion for summary judgment, but at the same time...