Travelers Indem. Co. v. Parkman, 73--157
| Citation | 300 So.2d 284 |
| Decision Date | 13 September 1974 |
| Docket Number | No. 73--157,73--157 |
| Parties | TRAVELERS INDEMNITY COMPANY, a corporation doing business in Florida, Appellant, v. Kenneth PARKMAN and Jeanette Parkman, Appellees. |
| Court | Court of Appeal of Florida (US) |
Edna L. Caruso, of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, West Palm Beach, for appellant.
Jon E. Krupnick, of Walsh, Dolan & Krupnick, P.A., Fort Lauderdale, for appellees.
This case involves the right of an insured to recover damages under the collision coverage portions of his automobile policy for the insurer's breach of contract. Specifically, the insured (appellees) claimed damages for loss of use of their automobile arising out of an alleged breach of contract by the insurer in not repairing the insureds' automobile within a reasonable time.
Appellant, Travelers Indemnity Company, issued a comprehensive automobile insurance policy to appellees. The policy included collision protection. Appellees notified appellant of an accident damaging the insured automobile. Appellant inquired where appellees usually had the car serviced, and upon being advised of the name of the company, appellant instructed appellees to go ahead and have the vehicle repaired there. When the repairs were completed appellant refused to pay for them, appellant taking the position that the insurance policy was not in effect at the time of the accident. The repair company refused to deliver possession of the automobile until it received payment. Thus, the vehicle remained at the repair shop for approximately 14 months from the date of the accident.
A judicial declaration was ultimately obtained holding that the policy was in effect at the time of the accident. Thereafter, appellant paid appellees on their claims arising under the uninsured motorist, medical payments, and property damage provisions of the policy; but it refused to pay appellees' claim for loss of use during the 14 months the car remained in the possession of the repair company.
The basis of appellant's refusal to pay the loss of use claim and the essence of its point on appeal is that absent a provision in the policy providing coverage for loss of use, such consequential damage is not recoverable in a suit, such as this, for breach of contract.
It is well established that in actions sounding in tort one may recover damages for loss of use of personal property as an element of damages proximately flowing from the wrong. Airtech Service, Inc., v. MacDonald Construction Co., Fla.App.1963, 150 So.2d 465. Restatement of Torts, § 928 (1939). However, in actions sounding in contract, generally the damages recoverable are limited to those which are the natural and proximate result of the breach, or such as may reasonably be supposed to have been within the contemplation of the parties at the time they made the contract. 9A Fla.Jur., Damages, §§ 27, 32. Thus, where the insurance contract provides that in the event of loss caused by collision the insurer has the...
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