Spindler v. Kushner
| Decision Date | 28 August 1973 |
| Docket Number | No. 73--170,73--170 |
| Citation | 284 So.2d 481 |
| Parties | Robert G. SPINDLER and Raquel Spindler, his wife, Appellants, v. Mildred KUSHNER and Allstate Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
Walton, Lantaff, Schroeder, Carson & Wahl, Fort Lauderdale, and Michael R. Jenks, Miami, for appellants.
Theobald H. Engelhardt, Jr., and Robert Golden, Miami, for appellees.
Before PEARSON, HENDRY and HAVERFIELD, JJ.
The appellants Spindler sought to bring a counterclaim against the appellee, Allstate Insurance Company. The theory of the counterclaim assumed that the Spindlers were third party beneficiaries and as such were entitled to enforce a fire insurance policy. The counterclaim was dismissed and this appeal is from the rationale The principal issue is whether the rationale of Shingleton v. Bussey, Fla.1969, 223 So.2d 713, and cases following that decision may be applied to a fire insurance policy under the circumstances of this case. We hold that the third party beneficiary rule does apply and that the allegations of the counterclaim are sufficient to withstand the motion to dismiss.
In their counterclaim the appellants alleged that: (1) as the fee owners of certain improved property they agreed to sell it to Kushner for a stated consideration, with the Spindlers to assume risk of damage or loss prior to closing on a specified date; (2) Kushner, being unable to close on the date specified, entered into a supplementary agreement with the Spindlers, whereby in consideration of Kushner making mortgage payments of $215.00 per month, possession of the premises was delivered to Kishner, upon the condition that in the event of failure to close, the premises would be redelivered to the Spindlers in substantially the same condition as Kushner took them; (3) Kushner thereupon applied for, and for a valuable consideration (the premium), was issued a policy by Allstate Insurance Company insuring the improvements on the premises against loss or damage by fire; (4) while in Kushner's possession the improvements were totally or substantially destroyed by fire; and (5) Allstate Insurance Company thereafter denied coverage on the ground that Kushner had no insurable interest. Appellants claimed that as a third party beneficiary under the fire insurance policy, they should be allowed to prove Kushner's liability, and in the same suit, establish Kushner's insurable interest, Allstate's liability to Kushner, and collect directly from Allstate without a multiplicity of actions.
While it is true that Shingleton v. Bussey, supra, dealt specifically with a motor vehicle liability insurance policy, the third party beneficiary rule enunciated in that case has been applied to other types of insurance. In Maxwell v. Southern American Fire Insurance Company, Fla.App.1970, 235 So.2d 768, the rule was applied to a medical payment coverage provision contained in a homeowner's insurance policy. In addition, we have recently had occasion to pass upon the application of the rule to a fire insurance policy. Schlehuber v. Norfolk & Dedham Mutual Fire Insurance Company, Fla.App.1973, 281 So.2d 373, filed July 31, 1973. In the Schlehuber case, we held that an owner of recently purchased property could enforce the seller's policy of fire insurance covering the property insofar as the policy provided for payment to the mortgagees. Consequently, we find no reason why the appellant owners should not be able to enforce the payment provisions of the contract purchaser's fire insurance policy under the circumstances of the case presently before us.
We turn to a consideration of appellee's point urging that the counterclaim was properly dismissed because the policyholder as a contract purchaser...
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