Winter Garden Ornamental Nursery, Inc. v. Cappleman

• Decision Date: 27 July 1967
• Docket Number: No. 517,517
• Citation: 201 So.2d 479
• Parties: WINTER GARDEN ORNAMENTAL NURSERY, INC., a Florida corporation, Appellant, v. L. E. CAPPLEMAN and W. F. Cappleman, Jr., partners d/b/a Cappleman Agency, and Reserve Insurance Company, an Illinois corporation, Appellees.
• Court: Florida District Court of Appeals

Page 479

201 So.2d 479

WINTER GARDEN ORNAMENTAL NURSERY, INC., a Florida corporation, Appellant, v. L. E. CAPPLEMAN and W. F. Cappleman, Jr., partners d/b/a Cappleman Agency, and Reserve Insurance Company, an Illinois corporation, Appellees.

No. 517.

District Court of Appeal of Florida, Fourth District.

July 27, 1967.

Suggestion for Certification Denied Sept. 11, 1967.

Richard W. Bates, Orlando, for appellant.

Charles T. Wells, of Maguire, Voorhis & Wells, Orlando, for appellee Reserve Ins. Co. ANDREWS, Judge.

This is an appeal by the plaintiff, Winter Garden Ornamental Nursery, Inc., from a summary final judgment entered in favor of defendant, Reserve Insurance Company.

Fred Borror, a prospective customer of plaintiff, entered the van of plaintiff's truck to select and purchase wholesale merchandise. This was the normal manner in which plaintiff displayed its stock of plaints. Borror fell and was injured while leaving the van.

Borror made demand against plaintiff for damages resulting from his fall. Defendant-Reserve, insurer of the truck, declined coverage for the reason that Borror was alighting from the vehicle when injured and that the risk of such injury was within the following policy exclusionary provision:

PASSENGER HAZARD EXCLUDED

'It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability does not apply to Bodily Injury including death at any time resulting therefrom, sustained by any person while in or upon entering or alighting from the automobile.'

Plaintiff settled Borror's claim, then brought this action against Defendant-Reserve for breach of its contract of liability insurance with plaintiff. The Capplemans, local agents for Reserve, were also joined as parties defendant but are not a party to this appeal. The trial court entered final summary judgment for Defendant-Reserve and plaintiff appealed.

Plaintiff claim would seem to be precluded by the endorsement, which specifically excludes liability for injury sustained by any person while alighting from the vehicle. Where, as here, the language is plain and unambiguous, there is not occasion for a court to construe it. Rigel v. National Casualty Company, Fla.1954, 76 So.2d 285.

But plaintiff contends that the provision, when read with the caption 'Passenger Hazard Excluded,' becomes ambiguous. In essence, plaintiff argues that the use of the more restricted word 'passenger' is misleading and casts doubt on the meaning of 'any person' in the body of the endorsement and that this ambiguity must be resolved against the insurer.

Plaintiff's contention is refuted by the general rule which, while allowing resort to a caption to explain an ambiguity in the operative part of the clause, does not permit use of a caption to create ambiguity where none exists. Provident Life & Acc. Ins. Co. v. Anderson, 4 Cir. 1948, 166 F.2d 492; Orchard v. Agricultural Insurance Company of Watertown, N.Y., D.C.Ore.1964, 228 F.Supp. 564. Here the operative language is clear and unambiguous and the above rule applies.

Accordingly, the judgment of the trial court is affirmed.

WALDEN, C.J., concurs.

CROSS, J., dissents, with opinion.

CROSS, Judge (dissenting).

I respectfully dissent. I am aware of the rule that a caption in an insurance policy can be resorted to to explain an ambiguity in the operative part of the clause; it cannot be used to create an ambiguity. I am disposed to consider more far-reaching general rules which override that rule.

In 13 Appleman Insurance Law and Practice, § 7387, the author states:

'The caption of a policy Is also a part of it and should be construed with the detailed provisions. The caption should not, of itself, be taken to override the intention of the parties as shown by the provisions and clauses inserted therein, but may be read in connection with such clauses and in determining the intention of the parties.' (Emphasis added.)

A contract of insurance must be construed as a whole and, if possible and practicable, all of its parts are to be harmonious and each part given force and effect. 44 C.J.S. Insurance, § 298.

F.S.A. § 627.0118, entitled 'Construction of policies', requires that '(e)very insurance contract shall be construed according to the Entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any application therefor or any rider or endorsement thereto.' (Emphasis added.)

I am unable to close my eyes to the fact that the words 'Passenger Hazard Excluded' are contained in and are part of the insurance contract. The insurance company in the case at bar elected to entitled the endorsement in question 'Passenger Hazard Excluded'. It must be assumed that it did this for the purpose of explaining or limiting the amount of coverage afforded by the body of the policy under Coverage A--Bodily Injury Liability. The company could have entitled its endorsement 'Bodily Injury Liability Exclusions', or a number of other words or phrases, which would have had a plainer meaning and eliminated any field of doubt.

I am disposed to adhere to the general rule, as applied in Columbian Mut. Life Insurance Co. v. Craft, 1938, 186 Miss. 234, 185 So....