West American Ins. Co. v. Silverman

• Citation: 378 So.2d 28
• Decision Date: 28 November 1979
• Docket Number: Nos. 77-14,s. 77-14
• Parties: WEST AMERICAN INSURANCE COMPANY, Appellant, v. Sidney SILVERMAN, etc., American Mutual Liability Insurance Company, etc. etal., Appellees. to 77-17.
• Court: Court of Appeal of Florida (US)

Page 28

378 So.2d 28

WEST AMERICAN INSURANCE COMPANY, Appellant, v. Sidney SILVERMAN, etc., American Mutual Liability Insurance Company, etc. etal., Appellees.

Nos. 77-14 to 77-17.

District Court of Appeal of Florida, Fourth District.

Nov. 28, 1979.

Rehearing Denied Jan. 21, 1980.

James A. Smith of Wicker, Smith, Blomqvist, Duvant, McMath, Tutan & O'Hara, Miami, for appellant.

Maurice Fixel of Meyer, Leben, Fixel & Cantor, P. A., Hollywood, for appellee, Silverman.

Pomeroy, Betts & Wiederhold, Fort Lauderdale, and Joe N. Unger, Law Offices of Joe N. Unger, Miami, for appellees, American Mut. Liability Ins. Co. and Dana Weinstein.

Stephen W. Bazinsky of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellee, Hartford.

BERANEK, Judge.

This is a consolidated appeal involving three insurance carriers in a wrongful death and personal injury suit and counterclaim below. The particular question involved here is the duty to defend the counterclaim.

David Weinstein was driving a car owned by his mother and insured by American Mutual Insurance Company. Bruce Silverman was killed while riding as a passenger in the Weinstein car when it struck a guard rail. No other vehicle or third party was involved in the accident.

The passenger, Silverman, had an automobile liability policy with Hartford Accident and Indemnity and a homeowner's policy with West American Insurance Company.

Plaintiff, the Silverman estate, sued the driver, Weinstein, and his auto liability carrier alleging negligence and coverage. The driver answered and counterclaimed alleging that the passenger/plaintiff had caused the accident by grabbing the driver's arm causing the car to go out of control resulting in the collision with the guard rail.

Eventually, the plaintiff amended the complaint and joined all three insurance carriers asserting entitlement to a defense of the driver's counterclaim by at least one of the three carriers. Numerous motions for summary judgment regarding the duty to defend were filed. The Circuit Court found that the duty to defend the counterclaim rested on the plaintiff's homeowner's insurance carrier, West American Insurance Company. This homeowner's carrier appeals and all other insurance carriers and parties occupy the positions of appellees.

A carrier's duty to defend is governed solely by the allegations of the complaint (here defendant's counterclaim) against the insured. Bennett v. Fidelity &amp The issue involved here is the duty to defend the counterclaim and it is from the allegations of this pleading alone that this duty is determined. The counterclaim contained the following relevant allegations:

Casualty Co. of New York, 132 So.2d 788 (Fla. 1st DCA 1961). This applies to automobile policies and to homeowners' policies. St. Paul Fire & Marine Insurance Co. v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973). If a complaint contains allegations some of which would be within the policy coverage and some of which are not, then the carrier has a duty to defend the case. The duty to defend is often said to be greater than the eventual duty to pay under applicable coverage. Thus, a carrier may have a duty to defend a complaint filed against an insured and it may eventually be determined that no coverage actually exists for the claim as proven. Accredited Bond Agencies, Inc. v. Gulf Insurance Co., 352 So.2d 1252 (Fla. 1st DCA 1977).

3. On or about November 30, 1974, the Counterclaimant was operating a motor vehicle on State Road # 7, south of Bailey Road, south of the City of North Lauderdale, Broward County, Florida when the Decedent, Bruce Silverman, grabbed hold of and pushed and/or pulled on the arms of the Counterclaimant wherein the Decedent, Bruce Silverman, took control of said vehicle causing said vehicle to go out of control and collide with a guardrail and overpass.

4. The Decedent, Bruce Silverman, so negligently and carelessly took control of said vehicle that it was taken from the control of the Counterclaimant causing said vehicle to collide with a guardrail and overpass.

These allegations were found to be within the coverage of the West American homeowner's policy. This policy contained the following relevant language:

COVERAGE E PERSONAL LIABILITY

This Company agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. The Company shall have the right and duty . . . to defend any suit . . . seeking damages on account of such bodily injury . . .

This policy does not apply:

1. Under Coverage E Personal Liability and Coverage F Medical Payments to Others;

a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:

. . . (2) any motor vehicle owned or operated by, or rented or loaned to any Insured; . . .

The Hartford automobile policy issued to Silverman contained the following relevant language:

PART I LIABILITY

1. Coverage A Bodily Injury Liability: Coverage B Property Damage Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called "bodily injury," sustained by any person;

B. injury to or destruction of property including loss of use thereof, hereinafter called "property damage"; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit as it deems expedient. Persons Insured: The following are insureds under Part I:

(b) With respect to a non-owned automobile,

(1) the named insured,

(2) any relative, but only with respect to a private passenger automobile or trailer,

provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission. . . .

The American Mutual Liability Insurance Company policy was not formally made a part of the record but the parties have agreed this policy contained a standard liability provision covering Weinstein's liability arising out of the use of an automobile. This policy provision is the same as that contained in the Hartford policy.

The crux of this case is whether the alleged grabbing of the driver's arm by a passenger with a resulting accident may be said to create liability arising out of the use of an automobile. If so, then coverage may arguably be under an auto liability policy. On the other hand, if the grabbing of the driver's arm by the passenger does not create liability arising out of the use of an automobile, then coverage and a duty to defend exists under the homeowner's policy of the passenger. This is so since the automobile policy expressly includes...