Tire Kingdom, Inc. v. First Southern Ins. Co.
| Decision Date | 11 December 1990 |
| Docket Number | No. 90-227,90-227 |
| Citation | 573 So.2d 885 |
| Parties | 15 Fla. L. Weekly D2974 TIRE KINGDOM, INC., a Florida Corporation, Appellant, v. FIRST SOUTHERN INSURANCE CO., a Florida Corporation f/k/a Morrison Assurance Co., Inc., a Florida Corporation, Appellee. |
| Court | Florida District Court of Appeals |
Stephen A. Papy, Miami, and Charles C. Papy, Jr., Tampa, for appellant.
Rywant & Alvarez, Tampa, Daniel and Hicks and Ralph O. Anderson, Miami, for appellee.
Before JORGENSON, LEVY and GODERICH, JJ.
Tire Kingdom, Inc. ("TIRE KINGDOM") brought suit against First Southern Insurance Co. ("FIRST SOUTHERN") for breach of contract alleging a failure to defend and now appeals the trial court's Final Order granting First Southern's Cross-Motion for Summary Judgment.
In October of 1983, Tire Kingdom purchased an insurance policy from First Southern Insurance Co. The policy contained an endorsement covering personal and advertising injuries. 1 Norton Tire Co. sued Tire Kingdom and three of its officers in December of 1984, alleging various injuries resulting from violations of, among others, the Lanham Act, Sherman Anti-Trust Act, Florida Anti-Trust Act, Florida Deceptive and Unfair Trade Practices Act, Common Law Unfair Competition, Misleading Advertising, Florida Racketeer Influenced and Corrupt Organization Act, Disparagement and Defamation. Tire Kingdom forwarded the Complaint to First Southern and demanded that First Southern defend pursuant to the insurance policy. On January 25, 1985, First Southern sent Tire Kingdom a letter in which it denied coverage and refused to defend Tire Kingdom on the ground that the policy was limited to property damage and bodily injury. In July of 1985, First Southern retracted its January 25th letter and conceded there was coverage for an advertising injury. First Southern, however, stated it did not have a duty to defend Tire Kingdom because the alleged injuries were of the nature and type that fell under the policy's applicable exclusions.
The case went to trial solely on the Lanham Act claim and resulted in a favorable decision for Tire Kingdom. On appeal, the decision was affirmed. Tire Kingdom brought this action to recover attorney's fees, costs and damages for bad faith as a result of First Southern's failure to defend Tire Kingdom against the Norton Tire Co. lawsuit. The trial court heard cross-motions for summary judgment and ruled in favor of First Southern. The court found no coverage and, therefore, no duty to defend. Tire Kingdom appeals that final judgment.
The insurance policy in question provided coverage for claims of defamation and unfair competition. Such injuries were alleged in the Norton complaint to have been caused by Tire Kingdom. Although there were some allegations that would, in and of themselves, be excluded from coverage under the policy, it is a clear rule of law that where some allegations set out in a complaint require the insurer to defend the insured, and some allegations do not, the insurer must provide a defense on the entire suit. Tropical Park, Inc. v. United States Fidelity and Guaranty Company, 357 So.2d 253 (Fla. 3d DCA 1978); American Hardware Mutual Insurance Company v. Miami Leasing and Rentals, Inc., 362 So.2d 28 (Fla. 3d DCA 1978). Since there were some allegations in the Norton Tire Co. complaint which were not subject to policy exclusions, Tire Kingdom was entitled to coverage. First Southern, therefore, was obligated to defend Tire Kingdom on all of the allegations raised in the complaint.
We find there was coverage under the insurance policy even though there were conflicting provisions that...
To continue reading
Request your trial
-
Hanover Ins. Co. v. Anova Food, LLC
...Distributing Corp. v. Travelers Prop. and Cas. Ins. Co., 165 F.Supp.2d 1332, 1339 (S.D.Fla.2001) ; Tire Kingdom, Inc. v. First S. Ins. Co., 573 So.2d 885, 887 (Fla.Dist.Ct.App.1990).In Orlando Nightclub Enters., Inc. v. James River Ins. Co., 2007 WL 4247875, *5–*9 (M.D.Fla. Nov. 30, 2007), ......
-
Federal Ins. Co. v. Century Federal Sav. & Loan Ass'n
...for the insured will govern."), appeal denied, 122 Ill.2d 594, 125 Ill.Dec. 237, 530 N.E.2d 265 (1988); Tire Kingdom, Inc. v. First S. Ins. Co., 573 So.2d 885, 887 (Fla.Dist.Ct.App.1990) (provision providing coverage for claims of defamation and unfair competition conflicted with provisions......
-
Colony Ins. Co. v. Barnes
...Hosp., 710 So.2d 683, 684 (Fla. 3d DCA 1998) ("exclusions from coverage should be narrowly construed"); Tire Kingdom, Inc. v. First So. Ins. Co., 573 So.2d 885, 887 (Fla. 3d DCA 1990). 5. The insurer's assertion that negligence that subjects a person to an intentional shooting by an unrelat......
-
Nationwide Mut. Ins. Co. v. AMERICAN REINSURANCE, No. C-2-86-1158.
...in one paragraph and then retract the very same right in another paragraph called an `exclusion.'" Tire Kingdom, Inc. v. First Southern Ins. Co., 573 So.2d 885, 887 (Fla.App.1990). This does not mean, however, that the court should adopt unreasonable interpretations of insurance policy prov......
-
CHAPTER 9 Comprehensive General Liability Insurance—The Pollution Exclusions
...v. Aetna Casualty and Surety Co., 256 Conn. 343, 773 A.2d 906 (Conn. 2001). Florida: Tire Kingdom, Inc. v. First Southern Insurance Co., 573 So.2d 885 (Fla. App. 1990), review denied 589 So.2d 290 (Fla. 1991) (duty to defend antitrust claim because advertising injury offenses included “unfa......
-
Chapter 8
...v. Aetna Casualty and Surety Co., 256 Conn. 343, 773 A.2d 906 (Conn. 2001). Florida: Tire Kingdom, Inc. v. First Southern Insurance Co., 573 So.2d 885 (Fla. App. 1990), review denied 589 So.2d 290 (Fla. 1991) (duty to defend antitrust claim because “advertising injury” offenses included “un......