Schlehuber v. Norfolk & Dedham Mut. Fire Ins. Co., 72--1230
| Decision Date | 31 July 1973 |
| Docket Number | No. 72--1230,72--1230 |
| Court | Florida District Court of Appeals |
| Parties | W. R. SCHLEHUBER, Appellant, v. NORFOLK & DEDHAM MUTUAL FIRE INSURANCE COMPANY, Appellee. |
Alfred D. Bieley, Miami, for appellant.
George J. Baya, Miami, for appellee.
Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.
The appellant, W. R. Schlehuber, was the plaintiff in a suit claiming a right to the reformation of an insurance policy and other relief. After answer, the taking of deposition of the plaintiff, and the filing of affidavits and responses to requests for admissions, both plaintiff and defendant moved for summary judgment. The trial court entered a summary final judgment for the defendant Norfolk & Dedham Mutual Fire Insurance Company. This appeal followed.
The plaintiff-appellant does not, by either of his points presented, urge the existence of a genuine issue of material fact. The argument is rather that the court erred in not entering a summary final judgment in his favor. We affirm in part, reverse in part, and remand for further proceedings.
The appellant was trying to enforce an insurance policy issued by the appellee on property that the appellant had purchased. Appellee had issued to Charles L. Cannon and Miriam H. Cannon a policy of insurance insuring a one-family dwelling located in Dade County, Florida against loss or damage by fire in the sum of $7,300. The insurance policy contained a payment to mortgagee clause as follows:
'Mortgagee Clause (This entire clause is void unless name of mortgagee or trustee is inserted on the first page of this policy in space provided under this caption) Loss, if any on the item(s) subject to this clause as specified on the first page of this policy, shall be payable to the mortgagee (or trustee) as provided herein, as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy: Provided, (t)hat in case the mortgagor or owner shall neglect to pay nny premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same.'
The mortgagee clause was made payable to Norman Sivin as first mortgagee and Ben Zeigmund as second mortgagee. Subsequently, the mortgagee payment clause was changed to eliminate the name of Ben Zeigmund, as second mortgagee, and to insert the names of Ernest H. Guise and Frances C. Guise, as second mortgagee.
The Cannons sold the property to the appellant and his wife. At the closing of the sale, the prepaid premium on the fire insurance policy was not prorated. Neither the sellers nor the purchasers asked the insurance company to issue an endorsement naming the purchasers as insureds under the policy. The Cannons did not request that the appellee return the unearned portion of the premium. The appellant did not cause the property to be insured by any other insurer.
Less than one month after the closing of the sale and the conveyance of title, the building on the property was damaged by fire. Thereafter, the appellant wrote the appellee requesting that the loss of approximately $7,300 be paid to Norman Sivin, the first mortgagee, and to Ernest H. Guise and Frances C. Guise, the second mortgagee. In spite of appellant's letter, neither of the mortgagees made a claim under the policy. Thereafter, appellant filed his complaint. 1
We construe the complaint to have two aspects. First, it is a complaint for the equitable relief of reformation of a contract; second, it is an effort to secure from the court a declaratory judgment as to appellant's right to enforce the insurance policy by requiring payment to the mortgagees under the mortgagee payment clause. The appellee concedes the existence of the two aspects of the complaint, and in its brief refers to the second aspect as an attempt to recover on the policy under the theory that the appellant is a...
To continue reading
Request your trial
-
Wunschel v. Transcontinental Ins. Co.
...of a loss payee suing on an insurance contract as a third-party beneficiary is not a novel one. In Schlehuber v. Norfolk & Dedham Mutual Fire Ins. Co., 281 So.2d 373 (Fla.Dist.App.1973), the Florida Court of Appeals, in determining that the loss payee could enforce the insurance contract as......
-
Cincinnati Ins. Co. v. Palmer
...might sustain loss, he had an insurable interest to the full extent of the policy proceeds. See, Schlehuber v. Norfolk & Dedham Mutual Fire Insurance Company, Fla.App.1973, 281 So.2d 373; Aetna Insurance Company v. King, Fla.App.1972, 265 So.2d 716; Rutherford v. Pearl Assurance Company, Fl......
-
Southeastern Fidelity Ins. Co. v. Broughton
...it appears from the undisputed facts that there was no mutual mistake . . . involved . . .,' Schlehuber v. Norfolk & Dedham Mutual Fire Insurance Company, Fla.App.3rd, 1973, 281 So.2d 373, 375, this case must be reversed with deferential directions to the chancellor below to vacate the Dece......
-
Bednarz v. Castle Key Indem. Co.
...Dkt. 41, p. 13). Castle Key also does not contest Plaintiff's standing to raise this argument. Cf. Schlehuber v. Norfolk & Dedham Mut. Fire Ins. Co., 281 So. 2d 373, 375 (Fla. 3d DCA 1973); Kelly v. Balboa Ins. Co., 897 F. Supp. 2d 1262, 1266 (M.D. Fla. 2012). However, Castle Key does argue......