U.S. Fidelity & Guaranty Co. v. Hazen, 76-1539

• Court: Court of Appeal of Florida (US)
• Citation: 346 So.2d 632
• Docket Number: No. 76-1539,76-1539
• Parties: UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant, v. T. Lamar HAZEN, Jr., Mary C. Arthur, Harrison E. Murchison, d/b/a "It Bar," Merrick Vaughn, and Howard J. Maxey, as Executor of the Estate of Melba Ellis Maxey for the use and benefit of Howard J. Maxey, Appellees.
• Decision Date: 01 June 1977

Page 632

346 So.2d 632 UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant,
v.
T. Lamar HAZEN, Jr., Mary C. Arthur, Harrison E. Murchison, d/b/a "It Bar," Merrick Vaughn, and Howard J. Maxey, as Executor of the Estate of Melba Ellis Maxey for the use and benefit of Howard J. Maxey, Appellees. No. 76-1539. District Court of Appeal of Florida, Second District. June 1, 1977.

Page 633

William M. Schneikart of Miller & McKendree, Tampa, for appellant.

Wayne C. Hall of Strode, Hereford & Taylor, Sarasota, for appellee, Harrison E. Murchison, d/b/a "IT BAR."

SCHEB, Judge.

In this interlocutory appeal the appellant insurer, USF&G, challenges a partial summary judgment entered in favor of its insured, Murchison. The issue here is whether USF&G's policy provided coverage for defense of a suit filed against appellee Murchison, d/b/a IT BAR. The circuit court held the policy provided coverage. We disagree and reverse.

The posture of this litigation is somewhat complicated. Harrison E. Murchison and his wife owned and operated the "IT BAR" in Manatee County. Howard Maxey brought suit against Murchison and his insurer, USF&G. Maxey alleged that Murchison had served alcoholic beverages to an obviously intoxicated person, Chris Cushman; that Cushman subsequently caused the death of Mr. Maxey's wife, Melba Maxey, in an automobile accident. The trial court granted summary judgment in favor of Murchison and USF&G. Maxey appealed, and this court affirmed per curiam without opinion. Maxey v. USF&G (Fla.2d DCA 1977), Case Nos. 76-1317 and 76-1465, Opinion filed May 27, 1977.

Now to retrogress for a moment. When Maxey brought suit, Murchison demanded that USF&G defend him under the comprehensive liability policy it had issued to him and his wife for the IT BAR. USF&G refused to do so, citing the following exclusionary language of the policy:

This insurance does not apply:

(h) to bodily injury or property damage for which the insured or his indemnitee may be held liable

(1) As a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages, or

(2) if not so engaged, as an owner or lessor of premises used for such purposes, if such liability is imposed

(i) by, or because of the violation of, any statute, ordinance or regulation pertaining to the sale, gift, distribution or use of any alcoholic beverage, or

(ii) by reason of the selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person;

but part (ii) of this exclusion does not apply with respect to liability of the insured or his indemnitee as an owner or lessor described in (2) above.

Murchison then retained counsel and filed a cross-claim against USF&G. He sought indemnity for any judgment against him, as well as attorney's fees necessitated by USF&G's alleged breach of its duty to defend him.

Both Murchison and USF&G moved for summary judgment. The trial court awarded Murchison a partial summary judgment, holding in effect that Murchison did have...