Swiss Nat. Ins. Co., U.S. A. v. Martorella
| Decision Date | 11 September 1970 |
| Docket Number | No. 69--582,69--582 |
| Citation | 239 So.2d 144 |
| Parties | SWISS NATIONAL INSURANCE COMPANY, U.S.A., Appellant, v. Frank MARTORELLA, Appellee. |
| Court | Florida District Court of Appeals |
James A. Smith, of Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, for appellant.
R. T. Shankweiler, of Patterson, Maloney & Frazier, Fort Lauderdale, for appellee.
The Appellant-Defendant, Swiss National Insurance Company, U.S.A., a Florida insurance corporation, appeals a judgment entered against it in favor of Defendant-Appellee Frank Martorella. The judgment was entered subsequent to the trial judge granting a summary at pretrial conference on the issue of liability.
In this action Martorella claimed damages against Swiss National Insurance Company for its failure to defend a prior suit brought against Martorella by one John A. Cline. Although Martorella prevailed in the action, he incurred attorneys fees and costs. Swiss claimed that it had no duty to defend Martorella because Martorella had not given the company notice of the incident as soon as practicable, that the occurrence was caused by Martorella's intentional acts, and that the occurrence arose out of the insured's business pursuits which pursuits were excluded from policy coverage.
Swiss had issued to Martorella and his wife a home owner's plicy which provided coverage for Martorella's personal liability. The policy contained exclusions however, which provided that no coverage existed to the insured for 'boodily injury or property damage caused intentionally by or at the direction of the insured' and did not apply 'to any business pursuits of the insured, except under coverages E and F, activities therein which are ordinarily incident to non business pursuits'. The policy also provided that when an occurrence takes place written notice shall be given as soon as practicable.
The first notice that Swiss had of any occurrence was a receipt of the complaint brought by Cline some 5 1/2 months after the alleged incident. This complaint alleged an intentional and malicious assault by Martorella against Cline on a construction site where both the Plaintiff and Defendant were performing duties. No coverage was afforded Martorella for the intentional acts complained of in this complaint and the request to defend was refused. Approximately 9 months thereafter, however, Cline amended his complaint by adding a count in which he contended that Martorella negligently pushed Cline causing him injuries.
The trial judge, in entering his summary judgment found as a matter of law that the insurance company had a...
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...notice provisions of the primary policies is a condition precedent to any duty to defend. See, e.g., Swiss National Ins. Co. v. Martorella, 239 So.2d 144, 145 (Fla.Dist. Ct.App.1970) (reversing trial judge's entry of summary judgment that insurer had duty to defend because of disputed facts......
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...& Sur. Co. v. Martin Bros. Contain. Timber Pr. Corp., 256 F.Supp. 145 (D.C.Or.1966) (applying Ohio law); Swiss National Insurance Company v. Martorella, 239 So.2d 144 (Fla.App.1970); Henderson v. Hawkeye-Security Insurance Company, 252 Iowa 97, 106 N.W.2d 86 (1960); Cooper v. Government Emp......
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Hartford Acc. & Indem. Co. v. Phelps, U--164
...prejudice may exist as a result of late notice will not suffice to relieve an insurer of its liability. See Swiss National Ins. Co. v. Martorella, Fla.App., 239 So.2d 144 (4th DCA). We agree with the trial court that appellees have carried the burden of rebutting the presumption of prejudic......