St. Paul Fire & Marine Insurance Company v. Mayor's Jewelers of Fort Lauderdale, Inc., and Mayor's Jewelers of Dadeland, Inc., Deefndants-Appellees

465 F.2d 317
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 11, 1972
Docket71-1883
StatusPublished
Cited by10 cases

This text of 465 F.2d 317 (St. Paul Fire & Marine Insurance Company v. Mayor's Jewelers of Fort Lauderdale, Inc., and Mayor's Jewelers of Dadeland, Inc., Deefndants-Appellees) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
St. Paul Fire & Marine Insurance Company v. Mayor's Jewelers of Fort Lauderdale, Inc., and Mayor's Jewelers of Dadeland, Inc., Deefndants-Appellees, 465 F.2d 317 (5th Cir. 1972).

Opinions

JOHN R. BROWN, Chief Judge:

In another of those Erie cases where Federal Judges are called upon to conjure up a Florida solution under principles of Florida law to a Florida insurance dispute,1 we are here asked to unravel the eabalic meaning of a Florida statute cryptogrammically denominated F.S. § 627.01081, F.S.A. and apply its recondite intent to Clause 2(A) of Jeweler’s Block Policy No. 366 HA 6590 and Clause 2(B)(3) of Jeweler’s Block Policy Nos. 366 HA 6584 and 366 HA 6585.2 [319]*319In weaving through this maze of arithmetic appellations, the District Court, perhaps understandably, made some clearly erroneous findings. Accordingly, we reverse in part and affirm in part the District Court’s declaratory order granting full recovery to the assureds.

1. The Facts — Line Security That Wasn’t There

The facts, as they emerge from what turns out to be a virtually undisputed though less than luminous record, indicate the following occurrences. In July, 1968, Mayor’s Jewelry Stores, through its president (Getz) and its vice president (Shore) obtained Jeweler’s Block Insurance policies from St. Paul Insurance Company (St. Paul) for six of its wholly owned stores, including Mayor’s Jewelers of Ft. Lauderdale (Ft. Lauder-dale), Mayor’s Jewelers of Dadeland, Dadeland Mall (Dadeland Mall) and Mayor’s Jewelers of Dadeland, Sunset Drive (Sunset). The policies carried primary insurance in the amount of $300,000 each, so far as the pertinent provision — Clause 2(A)3 — is concerned.

In early 1969, Shore contacted St. Paul’s general agent (Schuh) seeking to increase this coverage by $200,000 on the Ft. Lauderdale policy. Schuh told Shore that he would have to check with insurer's head underwriter (Washiek), whom he called immediately. Washiek told Schuh that he would not increase the coverage to a total of $500,000, but that he would increase coverage $100,000 to $400,000 if the assured had an anti-burglary device known as “ADT line security.”4 Schuh relayed this information to Shore who replied that he did not know whether or not this particular system had been installed in the Ft. Lau-derdale location, and that he would have to call ADT to find out.5

Shore called ADT and was told that the Ft. Lauderdale store did have line security and had had it since its inception. Shore then called Schuh and told him that ADT had told him that Ft. Lauderdale had the system. Upon re[320]*320ceipt of this information Schuh told Shore on February 3, 1969, that Ft. Lauderdale had the $100,000 increase on 2(A) coverage. Schuh then called and wrote Washick that on Washick’s advice he had bound the additional coverage.6 The binder was confirmed by St. Paul by Endorsement No. 9, issued February 6, 1969, with an effective date of February 3, 1969.

Sometime during the weekend of March 30, 1969, the Ft. Lauderdale store was burglarized with a loss of nearly $700,000 worth of merchandise.

Unhappily, the Ft. Lauderdale store did not have protection of an ADT line security system after all, as had been thought.

II. No Misrepresentation

St. Paul’s first contention is that it is entitled to cancel the increase in 2(A) coverage and avoid the additional liability ($100,000) because Shore’s statements about the ADT line security system amounted to a material misrepresentation of fact, substantially affecting the risk of the insurer, on which the insurer had reasonably relied in extending coverage.

The argument can be readily disposed of. Shore simply did not misrepresent anything. All Shore told Schuh was that he did not know whether or not Ft. Lauderdale had this particular protection and that he would have to find out from ADT.7

Thereafter, Shore called ADT and then reported back to Schuh that ADT had told him that Ft. Lauderdale was protected with line security. This was the statement on which the insurer relied. It was the inquiry which the insurer called for, and the answer as to what ADT advised was faithfully reported to St. Paul. There was no misrepresentation here.

Therefore, since there was actually no misrepresentation of fact, F.S. 627.-010818 F.S.A., is not even involved even though it is conceded that the critical fact was material to the risk.

St. Paul’s argument that Getz’ February 3 letter to St. Paul, which was not received until days after the extended coverage had been bound, materially misled the insurer is likewise without merit. Statements made after coverage has been afforded are immaterial. World Insurance Company v. Posey, Fla.App., 1969, 227 So.2d 67; Aetna Insurance Company v. Kacharos, Ala.Sup. Ct., 1933, 226 Ala. 504, 147 So. 438. Coverage had been bound days before the Getz letter could have been received. This obvious fact renders unnecessary any discussion of whether reliance on the letter could have been reasonable, in [321]*321light of Washiek’s admitted knowledge that some of the information conveyed to him was erroneous,9 since coverage had already been bound and Washick could not, therefore, have been relying on statements subsequently made. This also makes superfluous the District Court’s further finding on the basis of expert testimony that the error should have put a reasonably prudent underwriter on notice that he should obtain further verification or make some further inquiry.10

We therefore accept the District Court’s conclusion that coverage was not induced by any misrepresentation which Florida would regard as defeating coverage. The increased coverage under 2(A) was valid.

III. Association

The second part of the case relates to off-premises coverage under 2(B)(3), note 2, supra, which provided $250,000 coverage for loss:

“in respect of property which is * * * in the custody of a dealer in property of the kind insured hereunder not employed by or associated with the Insured * * (Emphasis added).

Dadeland Mall and Sunset also sustained substantial losses as a result of the burglary at Ft. Lauderdale, since these stores had sent to Ft. Lauderdale approximately $200,000 worth of merchandise which Dadeland Mall and Sunset had received under “all risk memos” from the manufacturers and wholesalers. Sunset and Dadeland Mall claimed coverage under Clause 2(B)(3)11 of their policies (366 HA 6584 and 655 HA 6585 respectively).

The controversy turns on whether or not Sunset and Dadeland Mall were “associated with” Ft. Lauderdale.

The District Court’s finding that the stores were not associated was based on the fact that each of the six Mayor’s Jewelry Stores are operated as separate entities for tax purposes. On the other hand, all six corporations are owned and controlled by the same interests (primarily President Getz) and it is undisputed that negotiations for all six insurance policies were carried on by Shore and Getz for all six stores at the same time. That included the three policies at issue. The central office, located at the Sunset premises, performed centralized accounting, purchasing, hiring, property leasing, master inventory, insurance and advertising functions for all stores.

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Bluebook (online)
465 F.2d 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-paul-fire-marine-insurance-company-v-mayors-jewelers-of-fort-ca5-1972.