Winters v. Phillips
| Decision Date | 28 April 1970 |
| Docket Number | No. 69--813,69--813 |
| Parties | Alice Jane WINTERS, a minor, etc., Appellant, v. Elizabeth E. PHILLIPS, Appellee. |
| Court | Florida District Court of Appeals |
Weissenborn, Burr & Hyman, Miami, for appellant.
Blackwell, Walker & Gray, and James E. Tribble, Miami, for appellee,
Before CHARLES CARROLL, BARKDULL and HENDRY, JJ.
This appeal brings on for review a consolidated final judgment, entered in two causes lately pending in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida.
The principal question is whether a person driving an automobile without the express permission of its owner, but with the consent of the owner's son, 1 comes within the omnibus clause in the automobile owner's insurance policy, which reads as follows:
'Under the Liability and Medical Expense Coverages, the following are insureds:
(2) any other person using such automobile with the permission of the named insured, provided its actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and
(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a)(1) or (2) above.'
This matter is presented in a contest between two insurance carriers as to whether the one representing the owner of the automobile (who was held vicariously liable to a third person) may seek recovery from the active tort feasor by subrogation. The carrier representing the active tort feasor contended that the operator of the vehicle was included in the omnibus clause and, therefore, the automobile owner's carrier cannot subrogate its claim, citing Maryland Casualty Co. v. Employers Mutual Liability Ins. Co., 2nd Cir. 1953, 208 F.2d 731; Pacific Employers Insurance Co. v. Hartford Accident & Indemnity Co., 6th Cir. 1955, 228 F.2d 365; American Surety Co. of New York v. Canal Insurance Co., 4th Cir. 1958, 258 F.2d 934; Atlantic National Insurance Co. v. Erie Insurance Exchange, Dist.Ct.S.D.Fla.1962, 211 F.Supp. 878.
The courts of Florida have held, in tort cases, the owner and his carrier liable for accidents occasioned by a dangerous instrument, to wit: an automobile, under the doctrine of implied consent, when one is driving a vehicle without the express permission of the owner but with the permission of one to whom the automobile was...
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Jones v. Florida Ins. Guar. Ass'n, Inc.
...Auto Sales are legally responsible for Mr. Gilliam's negligence." See Ray v. Earl, 277 So.2d 73 (Fla. 2d DCA 1973); Winters v. Phillips, 234 So.2d 716 (Fla. 3d DCA 1970). The liability insurance coverage provisions of the policy provided that Dealers Insurance would pay "all sums the insure......
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Stuyvesant Ins. Co. v. Butler, 46143
...against the insurer and in favor of the insured. Harris v. Carolina Life Insurance Co., 233 So.2d 833 (Fla.1970); Winters v. Phillips, 234 So.2d 716 (Fla.App.1970); Continental Casualty Co. v. Gold, 194 So.2d 272 (Fla.1967); Hartnett v. Southern Insurance Co., 181 So.2d 524 (Fla.1965); Grif......
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Ray v. Earl
...112 So.2d 832 (Fla.1959); American Fire and Casualty Co. v. Blanton, 182 So.2d 36 (1st D.C.A.Fla.1966). See also, Winters v. Phillips, 234 So.2d 716 (3d D.C.A.Fla.1970) (impliedly assuming that the owner's carrer may be liable to an injured third party even where consent is expressly negate......
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Kobetitsch v. American Mfrs.' Mut. Ins. Co., 80-275
...of omnibus coverage clause, 5 A.L.R.2d 600, 629-636 (1949); 1-6 A.L.R.2d, Later Case Service, at 661-63 (1971). In Winters v. Phillips, 234 So.2d 716 (Fla. 3d DCA 1970), cert. denied, 238 So.2d 424 (Fla.1970), it was similarly held that the "implied consent" tort doctrine was not applicable......