Solano v. Federal Title & Ins. Corp.

• Decision Date: 23 December 1969
• Docket Number: No. K--476,K--476
• Citation: 229 So.2d 312
• Parties: Paul SOLANO, a minor, by his next friend and father, Herman F. Solano, and Herman F. Solano, individually, Appellants, v. FEDERAL TITLE AND INSURANCE CORPORATION, Appellee.
• Court: Florida District Court of Appeals

Page 312

229 So.2d 312

Paul SOLANO, a minor, by his next friend and father, Herman F. Solano, and Herman F. Solano, individually, Appellants, v. FEDERAL TITLE AND INSURANCE CORPORATION, Appellee.

No. K--476.

District Court of Appeal of Florida, First District.

Dec. 23, 1969.

Rehearing Denied Jan. 14, 1970.

S. Perry Penland, Crider & Rich, Jacksonville, for appellants.

Louis H. Stallman, Miami Beach, for appellee.

SPECTOR, Judge.

Appellants brought a garnishment action against appellee to recover a judgment obtained against Mrs. Mabel Codding to whom appellee had issued a homeowner's insurance policy.

The garnishment action was tried without jury. Appellee disclaimed any obligation to Mrs. Codding under its policy on the grounds that the insured failed to give timely notice that an accident had occurred as required by the terms of the policy. The accident in question occurred on April 22, 1964, and resulted in the loss of an eye to the appellant minor. A damage suit was filed against the insured, Mrs. Codding, in September, 1965, and she immediately forwarded the suit papers to appellee's agent, Stockton, Whatley, Davin and Company who also held or was serving the mortgage on the insured's home.

The evidence adduced before the trial judge on the question of notice was in conflict. Appellant presented the testimony of the insured who stated that only a few days after the accident she telephoned the office of Stockton, Whatley, Davin and Company and advised the unidentified person to whom her call was referred that an accident had occurred. She stated that she was informed that there was no coverage because the accident occurred adjacent to and not upon the insured's premises. Shortly thereafter, an attorney for appellant inquired about the insurance coverage and she advised him of the disclaimer of coverage in the telephone conversation described above.

The attorney who had inquired of Mrs. Codding testified that he too had inquired via telephone as to Mrs. Codding's insurance coverage with Stockton, and was advised that there was no coverage for that type of accident since it did not occur on the insured's premises. It is interesting to note that the contacts both of these witnesses testified to with Stockton, Whatley, Davin and Company resulted in a confirmation that there was coverage in the form of a homeowner's policy, but that such coverage did not extend to the particular circumstances in which the child was injured.

In contrast with the evidence adduced by the appellants, the appellee produced witnesses who were employed at the claims desk of Stockton, Whatley, Davin and Company who testified that they had no independent recollection of any telephone inquiries as to coverage for the subject accident. They further testified as to the normal course in which telephone notices of loss or claims were handled and that such telephone notices...