Hartford Accident & Ind. Co. v. Shelby Mut. Ins. Co.

208 So. 2d 465, 1968 Fla. App. LEXIS 5767
CourtDistrict Court of Appeal of Florida
DecidedMarch 26, 1968
DocketJ-164
StatusPublished
Cited by7 cases

This text of 208 So. 2d 465 (Hartford Accident & Ind. Co. v. Shelby Mut. Ins. Co.) 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
Hartford Accident & Ind. Co. v. Shelby Mut. Ins. Co., 208 So. 2d 465, 1968 Fla. App. LEXIS 5767 (Fla. Ct. App. 1968).

Opinion

208 So.2d 465 (1968)

HARTFORD ACCIDENT AND INDEMNITY COMPANY, Inc., Appellant,
v.
SHELBY MUTUAL INSURANCE COMPANY, Inc., Appellee.

No. J-164.

District Court of Appeal of Florida. First District.

March 26, 1968.
Rehearing Denied April 16, 1968.

Roderic G. Magie of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellant.

Carey, Dwyer, Austin, Cole & Selwood, Miami, for appellee.

WIGGINTON, Chief Judge.

Appellee, Shelby Mutual Insurance Company, brought this action seeking a judicial declaration of its rights under an insurance policy issued by appellant, Hartford Accident and Indemnity Company. From a declaratory decree in favor of Shelby, Hartford has appealed.

This controversy is between two insurance companies and involves a question of which one is obligated to pay a judgment recovered by an employee of a company insured by Hartford against a company insured by Shelby. The answer to the question depends upon the proper construction to be placed upon the provisions of the insurance policy issued by Hartford to its insured.

The evidence in the record, and the reasonable inferences which may be drawn from it, reveal the following salient facts which do not appear to be in dispute. One Ralph C. Travis was employed as a truck driver for Georgia, Florida, Alabama Transportation Company, a certificated common carrier. In the course of his employment he was engaged in the delivery of a 2,000 pound cubicle of electrical switching equipment to the consignee, Acme Electric Company, Inc. Acme was an electrical subcontractor engaged in the performance of a subcontract to furnish the labor, materials, and equipment necessary to complete the electrical work called for in the plans and specifications for the construction of a building to become a part of Pensacola *466 Junior College on premises owned by the Escambia County School Board. Acme's subcontract was with Dyson Construction Company, the general contractor under contract with the school board to construct the building in accordance with the plans and specifications furnished by the owner.

On the day in question Travis drove the GFA truck to the job site where the building in question was under construction, for the purpose of delivering to Acme the cubicle of equipment owned by Acme which was to be incorporated in the contract. Acme's employees entered the van of the truck for the purpose of unloading the shipment, and while in the process of accomplishing this purpose they so negligently performed their duties as to cause the cubicle to topple over onto Travis. Travis brought suit against Acme for damages resulting from the personal injuries suffered by him which proximately resulted from the alleged negligence of Acme and its employees. This suit was defended by Shelby under its comprehensive general automobile policy issued to defendant Acme. Judgment was ultimately recovered by Travis, which judgment is now pending on appeal to this court.

After issue, but prior to the commencement of the trial in the case of Travis against Acme, Shelby brought this suit praying for a declaration of its rights as against Hartford insofar as insurance coverage is concerned, and a determination as to which party is obligated to defend Acme in the suit pending against it by Travis, and for such other relief to which it may be legally entitled.

The insurance policy issued by Hartford to its insured, GFA, is a comprehensive general automobile liability policy. By the terms of this policy, the usual automobile liability insurance coverage is extended to the named insured, and to anyone using the insured's vehicle with its permission. The term "use" is defined in the policy to include both the loading and unloading of an automobile.

It is Shelby's position that under the foregoing provisions of the policy issued by Hartford to GFA, Acme's employees were using the GFA truck at the time of the accident with the permission of the insured, GFA, since they were engaged in the process of unloading from it the shipment consigned to Acme. Shelby urges that since coverage is extended to Acme's employees, then the Hartford policy is primarily liable for the damages suffered by Travis, and that Shelby as the insurer of Acme is liable under the nonowned automobile provisions of its policy for only such excess portion of the judgment as may remain after Hartford's liability under its policy is exhausted. Because of the matters hereinafter discussed, we do not deem it necessary to reach or pass upon the foregoing contention urged by Shelby in support of the decree appealed.

The Hartford policy issued to its insured, GFA, contains an endorsement entitled "Limitation of Additional Interests — Loading and Unloading," which is in the following words, to wit:

"It is agreed that the insurance for Bodily Injury Liability and Property Damage Liability does not apply to injury, sickness, disease, death or destruction which arises out of the loading or unloading of an automobile if the accident occurs on premises (including the ways immediately adjoining) owned, rented or controlled either by the person or by the employer of the person against whom claim is made or suit is brought for such injury, sickness, disease, death or destruction. * * *"

Under the terms of the above-quoted exclusionary endorsement forming a part of the Hartford policy, it seems clear and unambiguous that insurance coverage for bodily injury damages does not extend to any injury arising out of the loading or unloading of an automobile owned by the insured if the accident occurs on premises owned, rented, or controlled either by the person or by the employer of the person against whom suit is brought for such injury. *467 It is because of this exclusionary clause that Hartford contends it is not obligated to defend the suit against Acme, nor is it liable for payment of the judgment secured by Travis against Acme since Travis' injuries occurred while the GFA vehicle was being unloaded on premises controlled by Acme against whom suit was brought for such injuries. It is Shelby's position that the exclusionary clause is not applicable to the facts in this case because the premises on which the truck was being unloaded were not controlled by Acme within the meaning or intent of the exclusionary provision of the policy.

From the foregoing it appears that our decision narrows itself to the question of whether under the facts in this case it must be held as a matter of law that the premises on which the GFA truck was being unloaded at the time Travis suffered the injuries for which he sued Acme were premises controlled by Acme within the purview of the exclusionary clause here considered.

In passing upon this issue, and in placing its interpretation upon the exclusionary endorsement of the policy with which we are concerned, the trial court in the memorandum rendered by it held:

"Extensive research has not revealed any authority construing the disputed provision of the endorsement, and the Court must look to the language used to determine the underwriting intent. `Owned' and `rented' have particular and specific meaning. `Controlled' does not. Applying usual rules of construction, `controlled' should not be interpreted in its widest extent but should be construed to mean the same kind or class as the specific words. `Owned' and `rented' involve and denote proprietary interests, and `controlled' must have been intended to apply only to similar situations of the same general kind or class. In other words, it must have been intended to apply to proprietary interests.

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208 So. 2d 465, 1968 Fla. App. LEXIS 5767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartford-accident-ind-co-v-shelby-mut-ins-co-fladistctapp-1968.