Travelers Ins. Co. v. Wilson, 71-743
| Decision Date | 09 March 1972 |
| Docket Number | No. 71-743,71-743 |
| Citation | 261 So.2d 545 |
| Parties | TRAVELERS INSURANCE COMPANY, Appellant, v. Donald F. WILSON and Carla L. Wilson, et al., Appellees. |
| Court | Florida District Court of Appeals |
Edna Louise Caruso, of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, West Palm Beach, for appellant.
Thomas E. Kingcade, of Jones, Paine & Foster, West Palm Beach, for Appellee-Miller.
Rosemary Barkett of Farish & Farish, West Palm Beach, for appellees-Wilson.
Appellant contends that there are two questions presented. First, does the owner of a motor vehicle have vicarious liability for punitive damages because of the operator's gross negligence? Second, if the owner has such vicarious liability, does appellant's automobile liability insurance policy provide coverage to the insured owner for punitive damages assessed against him solely on that basis? Appellees contend, and we think correctly so, that in the present posture of the case only the second, or coverage question, is properly before us for consideration.
Mr. and Mrs. Wilson sustained personal injuries in a collision between a motorcycle they were riding and a vehicle owned by Harold B. Miller and operated by one Johnston. We will assume that he was operating the vehicle with the owner's knowledge and consent as no issue is raised here on that score. The Wilsons filed suit against the owner Miller and the operator Johnston, each plaintiff seeking both compensatory and punitive damages against both Miller and Johnston, Jointly and severally. The complaint sets forth in some detail the conduct on the part of the operator, Johnston, which plaintiffs allege constituted punitive gross negligence. However, there are no allegations of any employer-employee relationship between Miller and Johnston, nor any allegations of any active wrongdoing or misconduct on the owner's part which would independently sustain an award of punitive damages against the owner. Hence, it is clear that plaintiffs' claim for punitive damages against the owner is based squarely upon his vicarious liability.
Miller, the defendant owner, was the named insured under a comprehensive automobile-general liability insurance policy issued by The Travelers Indemnity Company. Initially, the insurer undertook defense of the suit on behalf of Miller and through its attorneys moved for summary judgment in his favor as to the claims for punitive damages, asserting in support of such motion the proposition that the owner of a motor vehicle does not have vicarious liability for punitive damages. By an order entered January 22, 1971, the trial court denied Miller's motion for partial summary judgment on this issue. Even though that order Denied a motion for partial summary judgment on the issue of liability (and hence apparently is not subject to interlocutory appeal under Rule 4.2, F.A.R., 32 F.S.A.), nonetheless, the court ruled that the vicarious liability of the owner of a motor vehicle would render him subject to punitive damages for the gross negligence of one operating the vehicle with the owner's knowledge and consent.
This order set the stage for the events which culminated in the present appeal. The insurer disclaimed to its insured Miller any coverage for punitive damages and, because of this conflict of interest, arrangements were made for Miller to be represented by separate counsel. Miller then filed a third party complaint against the Travelers Insurance Company 1 alleging in essence his status as an insured under the insurance policy issued by the company (a copy of which was attached to the pleading), his entitlement to coverage for any sums he might become legally obligated to pay to the plaintiffs, including punitive damages, and the insurer's disclaimer of coverage for any punitive damages. He sought judgment against the insurer for any sums which the plaintiffs might recover against him. Miller then moved for summary judgment in his favor on the third party complaint and on July 26, 1971, the court entered its order Granting Miller's motion for partial summary judgment on the insurer's liability under the policy 2, holding that the policy provided coverage to Miller for any sums he might become legally obligated to pay to the plaintiffs as punitive damages. This is the order from which the insurer has taken the present interlocutory appeal.
First, a comment on a vexing procedural matter. The very nature of interlocutory appeal is such that it brings for appellate review only the specific order appealed. Local Lodge No. 1248, etc. v. St. Regis Paper Company, Fla.App.1930, 125 So.2d 337. The only order here appealed is one which determined that appellant's insurance policy provided coverage for any punitive damages which plaintiffs might recover against the named insured under the policy. No appeal was taken from the order which theretofore had determined that the insured owner had a legal liability to plaintiffs for punitive damages vicariously imposed by reason of ownership. Therefore, the coverage question is, but the liability question is not, properly before us for appellate review. Yet, it seems logical that a decision on the coverage question ought to come only after the liability question has been resolved, lest we get the cart before the horse. Obviously, an ultimate determination that the vicarious liability imposed upon the owner of a motor ...
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