Russell v. Eckert

195 So. 2d 617
CourtDistrict Court of Appeal of Florida
DecidedFebruary 15, 1967
Docket6915
StatusPublished
Cited by27 cases

This text of 195 So. 2d 617 (Russell v. Eckert) 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
Russell v. Eckert, 195 So. 2d 617 (Fla. Ct. App. 1967).

Opinion

195 So.2d 617 (1967)

Betty Ann RUSSELL, a Minor, by and through Her Father and Next Friend, Fred R. Russell, Appellant,
v.
Charles A. ECKERT and E.R. Heard, Appellees.
Hartford Accident and Indemnity Company, a Corporation, Garnishee-Appellee.

No. 6915.

District Court of Appeal of Florida. Second District.

February 15, 1967.
Rehearing Denied March 16, 1967.

*618 Paul Kickliter and J.A. McClain, Jr., of McClain, Turbiville & Davis, Tampa, for appellant.

T. Paine Kelly, Jr., and Charles W. Pittman, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for garnishee-appellee.

No appearance for other appellees.

*619 PIERCE, Judge.

This is an appeal by Betty Ann Russell, a minor, plaintiff below, from a final judgment entered by the Hillsborough County Circuit Court after trial without jury of an issue made up between plaintiff and Hartford Accident and Indemnity Company, a corporation, garnishee below, wherein the Court held in favor of the garnishee.

On November 5, 1964, in an action for damages for personal injuries incurred in an automobile accident, plaintiff, by her father and next friend, recovered a judgment against defendants Charles A. Eckert and E.R. Heard in the amount of $16,546.10, Eckert being the driver and Heard the owner of the automobile found at fault. On December 30, 1964, plaintiff procured issuance of writ of garnishment against Hartford, requiring Hartford to disclose any indebtedness to defendant Heard. Hartford filed its answer denying any indebtedness to Heard, whereupon, on January 18, 1965, plaintiff traversed said answer and alleged that Hartford was indebted to Heard in the amount of $10,000.00 upon an automobile liability insurance policy issued by Hartford in favor of Heard and that the policy was in force on the day of the automobile accident, October 12, 1963. After trial before the Court without jury, the Court on November 18, 1965, entered final judgment in favor of Hartford and against plaintiff. It is from this judgment that plaintiff appeals to this Court.

The crux of the case is whether, at the time of the accident on October 12, 1963, Hartford was bound on a policy of liability insurance to Heard. If such insurance was in force, judgment in garnishment should have been for the plaintiff. If the insurance was not in force, then judgment was rightfully for Hartford. We hold that a policy of insurance was in force and that therefore the trial Court should have entered judgment for plaintiff.

The facts are without material conflict. Determination here rests upon our legal conclusion upon those facts. Glass-Cooper, Inc., managed largely through its secretary-treasurer, Stavros Demopaulos, was a "general lines agent" in Orlando for Hartford, with offices just next door to defendant Heard, who by coincidence was in the life insurance business. On October 9, 1963, Heard contacted Demopaulos, asking for a 24 hour binder liability policy until Heard could come by Demopaulos' office the following day to get further insurance. Demopaulos complied with the request and bound Heard for 24 hours, and arranged a meeting the following day to give Heard extended coverage, which Heard had told him he wanted.

The following day, October 10, 1963, the day before his son was to drive the automobile to Tampa, Heard came by Demopaulos' office to consummate the coverage. Demopaulos filled out Heard's application, inserted October 10, 1963 as the effective date of the policy, and accepted Heard's premium of $27.80 at that time. It was near closing time in Demopaulos' office, he was interrupted by a telephone call, and, being anxious to leave the office anyway, he simply indicated to one of his secretaries to take Heard's application and money and to give Heard a receipt for the premium, not even bothering in his haste to get Heard's signature on the application. In the application, which Demopaulos filled out by questions and answers from Heard, all automobile accidents and traffic violations he or his family had had during the previous three years were listed by Heard, who also stated that one insurance company had cancelled his insurance because of a disclosed accident. On that same Thursday, October 10, 1963, the application was sent to the Hartford office in Orlando; the accident occurred on October 12, 1963; Hartford was notified of the accident on October 12, 1963; and on Tuesday, October 15, 1963, Hartford refused to issue the policy.

*620 There can be no question as to Glass-Cooper, Inc, being the agent of Hartford; and of course, Demopaulos was Glass-Cooper. Hartford furnished letterheads, brochures, binder forms, stationery, application forms, etc., all bearing Hartford's name. A written standard agency contract was in force whereby Glass-Cooper could accept premiums for Hartford and receipt for same, sell Hartford's policies, and even orally bind Hartford on all Hartford policies, except what was known as the "economy" type of policy.

If there were any question of Demopaulos' actual authority to issue binding interim insurance coverage, he was at least clothed with the apparent authority to do so, and the law is clear that it is enough if apparent authority exists. In Hughes v. Pierce, Fla.App. 1961, 141 So.2d 280, the Florida Supreme Court had before it a case identically in point. In Hughes, one Mason was the "general lines agent" for Auto-Owners Insurance Company, the insurer, and at issue was the binding validity of an automobile casualty insurance policy indemnifying the automobile owner against claims of third persons for damages resulting from negligent operation of the owner's automobile — the same issue as here. The insurer, Auto-Owners Insurance Company, refused to defend the damage suit brought against the owner Hughes — also the same as here. "Substantial judgments" were procured against Hughes, who then brought suit against the insurer, contending he was protected by a liability policy. We quote from the opinion in Hughes (text 141 So.2d 282):

"Auto-Owners Insurance Company takes the position that Mason had no actual or apparent authority to bind the company by an oral contract of insurance such as is relied on by appellant. We agree that Mason had no actual authority from Auto-Owners Insurance Company to bind them to an oral contract of insurance. We must determine whether or not there * * * [was] apparent authority of Mason to bind Auto-Owners Insurance Company.
"Before making a determination of this issue it must first be recognized that considering the manner in which Mason conducted his insurance business it must be conceded that his legal status falls within the category of a `general lines agent' as defined by the pertinent statute of this state. (F.S. § 626.041, F.S.A.) As such he is licensed to represent insurance companies in the solicitation and sale of casualty insurance policies; to take applications for such policies and accept for transmittal to the company he represents money for insurance premiums and to issue receipts therefor; to negotiate, effect and procure, receive, deliver or forward, directly or indirectly, an insurance contract or renewal thereof or any endorsement relating to any insurance contract; to directly or indirectly cause to be made contracts of insurance for or on account of insurers whom he represents and to discharge other duties and functions normally performed by an insurance agent as outlined in the statute. * * *
"In Appleman on Insurance Law and Practice, Vol. 16, Sec.

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195 So. 2d 617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-eckert-fladistctapp-1967.