American Emp. Ins. Co. v. Yeomans

356 So. 2d 1281
CourtDistrict Court of Appeal of Florida
DecidedApril 26, 1978
Docket77-652
StatusPublished
Cited by5 cases

This text of 356 So. 2d 1281 (American Emp. Ins. Co. v. Yeomans) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Emp. Ins. Co. v. Yeomans, 356 So. 2d 1281 (Fla. Ct. App. 1978).

Opinion

356 So.2d 1281 (1978)

AMERICAN EMPLOYERS INSURANCE COMPANY (Now Commercial Union Insurance Company) and Construction Sales and Rental Equipment, Inc., Appellants,
v.
Eugene Harrison YEOMANS, Sentry Indemnity Company, Allstate Insurance Company, Howard Stafford, Etc., David James Barnes and William Hill, Appellees.

No. 77-652.

District Court of Appeal of Florida, Second District.

March 17, 1978.
As Modified On Denial of Rehearing April 26, 1978.

*1282 James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellants.

Samuel V. Johnson of Johnson & Mockler, Fort Myers, for appellee Eugene Harrison Yeomans.

Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee Sentry Indemnity Co.

Douglas P. Lawless of Dart, Dickinson, O'Riorden, Gibbons & Quale, P.A., Sarasota, for appellee Allstate Ins. Co.

Wagner, Cunningham, Vaughan & Genders, Tampa, and Robert Orseck of Podhurst, Orseck & Parks, P.A., Miami, for appellees Stafford, Barnes and Hill.

RYDER, Judge.

This is an appeal from a final judgment on cross-claims determining insurance coverage between various carriers. Several complex questions of insurance law are presented. We affirm in part and reverse in part.

On March 7, 1972, Pamela Stafford, a minor,[1] David James Barnes and William Hill [plaintiffs] were riding in an automobile *1283 which collided with the rear part of an empty eighteen foot, flat deck, three-axle trailer being towed by a two-ton, six-wheel, flatbed International truck (27 feet in length). The trailer was attached to the truck with a pintle hook and safety chains.

The truck was owned and driven by Eugene Harrison Yeomans [Yeomans]. The trailer was owned by Construction Sales and Rental Equipment, Inc. [Construction]. Construction is in the business of renting construction vehicles and trailers.

During the six months prior to the accident, Yeomans had periodically used the trailer for a day or two at a time in his business of clearing land. The record reveals there had been some discussion about Yeomans purchasing the trailer from Construction. Yeomans did not pay Construction each time he used the trailer but as he "got the chance." The payments were credited to the purchase price. The trailer was also available for rental by others at a rate of $15.00 a day.

Yeomans was not engaged in any business purpose at the time of the collision, but rather as a favor to a friend who was in the business of laying sod, Yeomans had delivered some free sod to a little league baseball field and was returning home when the accident occurred.

Plaintiffs, thereafter, filed negligence actions [consolidated below] naming as defendants Yeomans; Sentry Indemnity Company [Sentry], Yeomans' liability insurer under a policy describing the truck that he was driving at the time of the accident; Allstate Insurance Company [Allstate], Yeomans' insurer under a policy listing two of his vehicles other than the truck involved in the accident; Construction; and American Employers Insurance Company [American], the insurer of Construction under a policy listing various vehicles including the trailer involved in the accident.

American, Allstate and Sentry answered and pleaded their respective policies did not provide coverage to Yeomans for the accident. Also, each insurer and Construction filed cross-claims for indemnity against the other insurers and Yeomans. Substantial discovery was had. The defendants/cross-claimants stipulated that the trial court would determine the issues of insurance coverage on the basis of legal memoranda. The trial court approved this stipulation by order dated July 26, 1976, and each defendant filed memoranda with the court.

On March 18, 1977 the trial court entered final judgment on the cross-claims, making no express findings of fact, but adjudging that American's policy provided coverage to Yeomans for the accident; further, that neither Allstate's policy nor Sentry's policy provided coverage to Yeomans for the accident; and that the cross-claims between Allstate and Sentry were moot because coverage was not afforded for the accident under either policy.

Thus, judgment was rendered in favor of both Allstate and Sentry on their cross-claims against American and Construction. Judgment was also entered in favor of Allstate, Sentry and Yeomans on American's and Construction's cross-claims against them. The court also entered judgment in favor of Sentry on its cross-claim against Yeomans.

American and Construction timely filed a notice of appeal to review the final judgment on cross-claims and assigned as error the trial court's adjudication that the policy between American and Construction afforded coverage to Yeomans for this accident and, additionally, the adjudication that neither the policy between Yeomans and Allstate nor the policy between Yeomans and Sentry afforded coverage to Yeomans for this accident.[2]

We have thoroughly reviewed the extensive record and the briefs in this complex matter, and we reverse the trial court's adjudication that American's policy provided coverage to Yeomans for the accident and affirm the trial court's adjudication *1284 that neither Allstate nor Sentry's policy provided coverage to Yeomans for the accident for the reasons hereinafter expressed.

THE AMERICAN POLICY

As noted above, the trial court determined that the American policy afforded coverage to Yeomans for this accident. When the accident occurred, Yeomans was driving his truck and towing a trailer owned by Construction. American is the liability insurance carrier of Construction pursuant to a policy which describes numerous vehicles including the trailer involved herein.

Appellee/defendant Yeomans argues that he is a person insured under the American policy by virtue of the policy provision that states:

II. PERSONS INSURED
* * * * * *
(c) any other person while using an insured automobile ... with the permission of the named insured, ...

Yeomans further notes that the American policy definition of "automobile" includes a "trailer" and, thus, the trial court was correct in deciding that the American policy afforded coverage to him.

With this contention, we cannot agree. Yeomans' argument is correct only insofar as it posits that Yeomans was a "person insured" pursuant to the above-quoted omnibus clause of the American policy. The fatal flaw of this argument and, indeed, the final judgment regarding American and Yeomans lies in the fact that the very section of the American policy ["Persons Insured"] relied upon by Yeomans goes on to provide an exclusion from coverage with respect to the specific type of use and occurrence at issue herein. The American policy further states:

II. PERSONS INSURED
* * * * * *
None of the following is an insured:
* * * * * *
(iv) any person or organization, other than the named insured, with respect to:
* * * * * *
(2) a trailer while used with any motor vehicle owned or hired by such person or organization and not covered by like insurance in the company.

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Bluebook (online)
356 So. 2d 1281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-emp-ins-co-v-yeomans-fladistctapp-1978.