Tropical Park, Inc. v. U.S. Fidelity & Guaranty Co.

• Decision Date: 11 April 1978
• Docket Number: No. 76-2139,76-2139
• Parties: TROPICAL PARK, INC., a Florida Corporation, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland Insurance Company, Appellee.
• Court: Florida District Court of Appeals

Page 253

357 So.2d 253

TROPICAL PARK, INC., a Florida Corporation, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland Insurance Company, Appellee.

No. 76-2139.

District Court of Appeal of Florida, Third District.

April 11, 1978.

Taylor, Brion, Buker & Greene and R. Bruce Wallace, Jr., Miami, for appellant.

Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellee.

Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

HUBBART, Judge.

This is an action by an insured against its insurance carrier seeking damages and attorneys fees for a wrongful refusal to defend and pay a negligence claim brought against the insured filed before the Circuit Court for the Eleventh Judicial Circuit of Florida. After a non-jury trial, final judgment was entered in favor of the insurance carrier. The insured appeals.

There are two central issues presented for review by this appeal. The first issue is whether an exclusionary clause in a general liability insurance policy denying coverage to an insured horse race track company "for bodily injury claims on account of injury to any person while practicing for or participating in any contest or exhibition of an athletic or sports nature sponsored by the insured" applies to a claim for injuries sustained by an exercise boy while exercising a horse on the insured's race track due to the insured's alleged negligence. The second issue is whether the insurance carrier herein on such a general liability policy with such an exclusionary provision has a duty to defend such a claim under a provision of the policy obligating the carrier to defend the insured against lawsuits falling within the scope of insurance coverage where the complaint in the lawsuit filed against the insured alleges that the exercise boy herein was a freelance jockey exercising the horse on the insured's race track when the alleged injuries were sustained. We hold that the aforesaid exclusionary clause is inapplicable to deny insurance coverage herein, that the insurance carrier is contractually obligated under the insurance policy to pay the insured for any judgment arising out of such a claim, and that the insurance carrier is contractually obligated to defend a lawsuit filed against the insured based upon such a claim. Accordingly, we reverse.

The facts of this case are undisputed. The plaintiff insured Tropical Park, Inc. at all times material to this cause was the owner of a horse race track and held in full force and effect a general comprehensive liability insurance policy with the defendant insurance carrier United States Fidelity & Guaranty Co. containing policy coverage limits of $250,000 per person and $500,000 per occurrence together with a standard clause obligating the said carrier to defend the insured against lawsuits falling within the scope of insurance coverage. The policy contained the following exclusionary provision:

"It is understood and agreed that coverage excludes bodily injury claims on account of injury to any person while practicing for, or participating in any contest, exhibition of an athletic or sports nature sponsored by the insured and immediate medical and surgical relief to any person so injured."

In late December, 1972, one Alfonso Perez filed a negligence action against the insured Tropical Park before the Circuit Court for the Eleventh Judicial Circuit of Florida. The complaint was served on Tropical Park and alleged that Perez as "a free-lance jockey" was injured while "exercising a horse" at Tropical Park's racetrack due to Tropical Park's negligence. ¹ Tropical Park duly notified its insurance carrier USF&G of the claim and forwarded the complaint and summons served upon it to USF&G, which USF&G refused to defend relying on the above exclusionary provision in the insurance policy.

The uncontradicted facts surrounding the Perez claim as noted by the trial court below in its findings of fact were that Perez was hired by a horse trainer on the date of the accident in question as an exercise boy, not a freelance jockey, to gallop a two year old horse once around the Tropical Park racetrack and return to the stables. The horse in question had never run in a race and was not scheduled to run in a race at the time. Perez was apparently injured as he circled the racetrack exercising the horse.

After the insurance carrier's refusal to defend the Perez claim, Tropical Park proceeded to defend the case on its own. Subsequently, the claim was settled for $20,000 with prior notice to and no objection from USF&G. It appears without dispute that USF&G has declined to pay the claim as settled based on the above exclusionary clause in the insurance policy.

The insured Tropical Park then brought this action against its insurance carrier USF&G in the Circuit Court for the Eleventh Judicial Circuit of Florida. Tropical Park sought to recover from the carrier the settlement amount paid on the Perez claim, its attorneys fees and expenses in defending the Perez claim, and attorneys fees for prosecuting this action. The case was tried non-jury in which the above facts were established. The trial court entered judgment for the insurance carrier; this appeal follows.

The law of Florida is well-settled that a contract of insurance prepared by an insurance company must be construed liberally in favor of the insured and strictly against the insurance carrier. Where the terms of an insurance contract are susceptible of two reasonable constructions, that interpretation which will sustain coverage for the insured will be adopted. Poole v. Travelers Insurance Co., 130 Fla. 806, 179 So. 138 (1937); Hartford Fire Insurance Co. v. Spreen, 343 So.2d 649 (Fla. 3d DCA 1977); Oliver v. United States Fidelity &...