CALDER RACE COURSE, INC., AND TRAVELERS INSURANCE COMPANY, APPELLANTS,
v.
HIALEAH RACE COURSE, INC., AND FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., APPELLEES

Fla. 3d DCA | 1980-09-16
No. 80-587
Before BARKDULL, HENDRY and BASKIN, JJ.
389 So. 2d 215 Florida District Court of Appeal, Third District (1980) Positive Treatment
Cited by 4 cases

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Synopsis

Calder Race Course borrowed a crane truck from Hialeah Race Course, which struck a state-owned bridge. When the State sued both companies and their insurers, the trial court granted summary judgment for Hialeah against Calder's crossclaim for indemnity. The appellate court affirmed, holding that Consolidated's escape clause in Hialeah's policy takes precedence over Travelers' excess clause in Calder's policy under Florida law.


Holding

Florida law provides that when a conflict exists between an escape clause and an excess clause in insurance policies covering the same loss, the escape clause will be enforced. Therefore, Hialeah's Consolidated policy with the escape clause takes priority, and Calder must bear the loss.


Headnotes

[1] In Florida, an escape clause in an insurance policy will be enforced over an excess clause when a conflict exists between the two.

[2] An insurance policy's escape clause may render its coverage secondary or nonexistent when other valid and collectible insurance is available.

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Key Quotes

“In Florida, where a conflict exists between an escape clause and an excess clause, the escape clause will be enforced.”

Establishes the controlling legal principle that determines which insurance policy's terms govern when two policies contain conflicting provisions.

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Facts & Procedural History

Hialeah Race Course lent a crane truck to Calder Race Course. While Calder was using the truck, it struck a bridge owned by the State of Florida. Hial…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Hialeah Race Course, Inc. lent a crane truck to Calder Race Course, Inc. While the truck was being used by Calder it struck a bridge owned by the State of Florida. Hialeah was insured by Consolidated Mutual Insurance Company, now represented by Florida Insurance Guaranty Association, Inc. (FIGA) and Calder was insured by Travelers Insurance Company. As a result of the damage to the bridge, the State filed suit against Hialeah, Calder, and their respective insurers. Thereupon, Hialeah and Consolidated filed a crossclaim against Calder and Travelers, seeking indemnity. Calder and Travelers crossclaimed, seeking recovery against Hialeah and its insurance carrier as the owner of the vehicle and the party primarily liable. Summary judgment was entered in favor of the State against Hialeah, Calder and their insurers. Hialeah and Consolidated defended against Calder’s crossclaim, urging that primary responsibility for the accident was Calder’s and its employee and that, between Calder and Hialeah, Calder should bear the loss. The trial court, on stipulated facts at the time the cause came on for hearing non-jury, entered a summary judgment for Hialeah. We affirm.

While it appears that both policies insured the vehicle and the driver,1 in fact they do not. The policy issued by Consolidated contains an escape clause,2 whereas Travelers’ policy contains an excess clause.3 In Florida, where a conflict exists between an escape clause and an excess clause, the escape clause will be enforced. Continental Cas. Co. v. Weeks, 74 So. 2d 367 (Fla.1954); World Rent-A-Car v. Stauffer, 306 So. 2d 131 (Fla.2d DCA 1974); American Bankers Insurance Company of Florida v. Leatherby Insurance Company, 350 So. 2d 353 (Fla.2d DCA 1977); adopted Leatherby Insurance Company v. American Bankers Insurance Company of Florida, 371 So. 2d 488 (Fla.1979).

Therefore, we affirm the summary judgment here under review.

Affirmed.

.Consolidated’s policy of insurance defines an insured person as:

ll(e)(ii) Any other person while operating with the permission of the named insured any such equipment registered in the name of the named insured and any person or organization legally responsible for such operation, but only if there is no other valid and collectible insurance available, either on a primary or excess basis, to such person or organization.

Travelers’ policy of insurance states as follows:

3. Definition of Insured-Each of the following is an Insured under this Section to the extent set forth below:
(a) Under Coverages F and G.

(3) any other person while using an owned automobile or a hired automobile with the permission of the Named Insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:

(ii) An employee of the Named Insured or such lessee or borrower. . See footnote .

. General Conditions.

4(b) If the Insured has other insurance against a loss covered by this policy, the Travelers shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable liability of all valid and collectible insurance against such loss, provided the insurance under Section III with respect to any temporary substitute automobile, any hired automobile insured on a cost of hire basis or any non-owned automobile and the insurance under division two of Coverage H shall be excess insurance over any other valid and collectible insurance.


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Citator

Cited By

  • Bardol v. Martin, 763 So. 2d 1119 (Fla. 4th DCA 1999)
    …period accruing before an initial action for support is commenced. But as I have stated such a substantive abridgment of their vested right to accrued retroactive support cannot be applied retrospectively against these children. See Foley v. Morns, 389 So. 2d 215 (Fla.1976) (legislation shortening limitations period could not be applied retrospectively to claims maturing before its enactment). Thus if the concession of these parties is that the statute is not applicable to reduce past maturing retroactive c…
  • Towns Realty, Inc. v. Safeco Ins. Co. OF Am., 854 F.2d 1264 (11th Cir. 1988)
    …his type of “escape clause" generally precludes any finding that an insurer is primarily liable if there is other collectible insurance. See Continental Casualty Co. v. Weekes, 74 So. 2d at 369; Calder Race Course, Inc. v. Hialeah Race Course, Inc., 389 So. 2d 215, 216 (Fla.Dist.Ct.App.1980); see also World Rent-a-Car v. Stauffer, 306 So. 2d 131, 132 (Fla.Dist.Ct.App.1974). Likewise, Lexington’s policy makes clear that it is an umbrella liability policy and extends only excess coverage if there is other colle…

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