Tout v. Hartford Acc. & Indem. Co., No. 80-373

CourtFlorida District Court of Appeals
Writing for the CourtNESBITT
Citation390 So.2d 155
Docket NumberNo. 80-373
Decision Date18 November 1980
PartiesWilliam and Jean TOUT, Appellants, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, etc., Appellee.

Page 155

390 So.2d 155
William and Jean TOUT, Appellants,
v.
HARTFORD ACCIDENT & INDEMNITY COMPANY, etc., Appellee.
No. 80-373.
District Court of Appeal of Florida, Third District.
Nov. 18, 1980.

Cunningham, Albritton & Lenzi, P.A., and Franklin D. Greenman, Marathon, for appellants.

Talburt, Kubicki & Bradley and Betsy E. Hartley, Carl W. Schwait, Miami, for appellee.

Before BARKDULL, SCHWARTZ and NESBITT, JJ.

NESBITT, Judge.

The Touts, defendants below, appealed from a final judgment entered in favor of Hartford Accident & Indemnity Company (Hartford), as subrogee for Michael S. Greenwald (Greenwald).

The Touts entered into a land sale contract for the purchase of a home owned by Greenwald. The contract permitted the Touts to rent the premises at a stipulated monthly sum prior to closing. Additionally, the contract between the Touts and Greenwald contained the following exculpatory clause: "Seller assumes risk of loss from fire or otherwise until closing ...." While the Touts were in possession as tenants, a fire broke out in the kitchen of the premises resulting in damage in the amount of $9,068.96, which was paid to Greenwald by Hartford under a homeowner's insurance policy it had issued. Hartford then initiated

Page 156

this subrogation action against the Touts to recover the amount paid.

The testimony of the parties reveals that on November 1, 1976, while preparing the evening meal, Mrs. Tout realized she was late picking up her child from school. Mr. Tout, who was home at the time, drove his wife to pick up their child. Unfortunately, Mrs. Tout had neglected to turn off the electric range before leaving and upon their return they discovered the kitchen ablaze. In their answer to the subrogation claim filed by Hartford, the Touts asserted the exculpatory clause cited above as an affirmative defense. Hartford's motion to strike this defense was granted, which the Touts alleged to be error. We disagree.

While the ruling of the trial court is supportable on Section 83.47(1)(b), Florida Statutes (1975), which makes agreements to limit or preclude liability void, see also Fuentes v. Owen, 310 So.2d 458, 459 (Fla. 3d DCA 1975), we prefer to rest our affirmance of this portion of the challenged order on the ground that a limitation of liability for one's negligent acts cannot be inferred unless such intention is expressed in unequivocal terms. Ivey Plants, Inc. v. F.M.C. Corporation, 282 So.2d 205 (Fla. 4th DCA 1973), cert. denied, ...

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14 practice notes
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • February 12, 2015
    ...DCA 1984) ; Goyings v. Jack & Ruth Eckerd Found., 403 So.2d 1144 (Fla. 2d DCA 1981) ; and Tout v. Hartford Accident & Indem. Co., 390 So.2d 155 (Fla. 3d DCA 1980). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we approve the Fifth District's dec......
  • Continental Ins. Co. v. Kennerson, No. 94-611
    • United States
    • Court of Appeal of Florida (US)
    • September 22, 1995
    ...1239 (Fla. 1st DCA 1977); Smith v. Ryan, 142 So.2d 139 (Fla. 2d DCA 1962). The decision in Tout v. Hartford Accident and Indem. Co., 390 So.2d 155 (Fla. 3d DCA 1980) is not to the contrary. Continental cites paragraph 10 of the lease, "Indemnity and Liability Insurance," as a reas......
  • State Farm Florida Ins. Co. v. Loo, No. 3D09-917.
    • United States
    • Court of Appeal of Florida (US)
    • February 10, 2010
    ...her. In response, State Farm contends that this Court addressed the issue under review in Tout v. Hartford Accident & Indemnity Co., 390 So.2d 155 (Fla. 3d DCA 1980) (affirming final judgment against tenant and in favor of landlord's insurance carrier, finding that the terms of the part......
  • Doe v. Faerber, No. 205CV142FTM99DNF.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 14, 2006
    ...Faerber and plaintiff under the circumstances set forth in Count V. Plaintiff's reliance on Tout v. Hartford Accident & Indem. Co., 390 So.2d 155 (Fla. 3d DCA 1980), for the proposition that Florida courts recognize marriage as a "special relationship" is misplaced. In Tout, t......
  • Request a trial to view additional results
14 cases
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • February 12, 2015
    ...4th DCA 1984) ; Goyings v. Jack & Ruth Eckerd Found., 403 So.2d 1144 (Fla. 2d DCA 1981) ; and Tout v. Hartford Accident & Indem. Co., 390 So.2d 155 (Fla. 3d DCA 1980). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we approve the Fifth District's decisio......
  • Continental Ins. Co. v. Kennerson, No. 94-611
    • United States
    • Court of Appeal of Florida (US)
    • September 22, 1995
    ...1239 (Fla. 1st DCA 1977); Smith v. Ryan, 142 So.2d 139 (Fla. 2d DCA 1962). The decision in Tout v. Hartford Accident and Indem. Co., 390 So.2d 155 (Fla. 3d DCA 1980) is not to the contrary. Continental cites paragraph 10 of the lease, "Indemnity and Liability Insurance," as a reason to conc......
  • State Farm Florida Ins. Co. v. Loo, No. 3D09-917.
    • United States
    • Court of Appeal of Florida (US)
    • February 10, 2010
    ...her. In response, State Farm contends that this Court addressed the issue under review in Tout v. Hartford Accident & Indemnity Co., 390 So.2d 155 (Fla. 3d DCA 1980) (affirming final judgment against tenant and in favor of landlord's insurance carrier, finding that the terms of the parties'......
  • Doe v. Faerber, No. 205CV142FTM99DNF.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 14, 2006
    ...Mrs. Faerber and plaintiff under the circumstances set forth in Count V. Plaintiff's reliance on Tout v. Hartford Accident & Indem. Co., 390 So.2d 155 (Fla. 3d DCA 1980), for the proposition that Florida courts recognize marriage as a "special relationship" is misplaced. In Tout, the Court ......
  • Request a trial to view additional results

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