THE EASTERN INSURANCE COMPANY, APPELLANT,
v.
CHARLES EDWARD AUSTIN, APPELLEE

Fla. 4th DCA | 1981-04-08
No. 79-2413
ANSTEAD and GLICKSTEIN, JJ., concur.
396 So. 2d 823 Florida District Court of Appeal, Fourth District (1981) Positive Treatment
Cited by 5 cases

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Holding

The court held that the occasional sale of surplus fish caught during a pleasure fishing trip did not violate the private pleasure use warranty of the insurance policy.


Headnotes

[1] The incidental sale of surplus fish caught on a pleasure fishing trip does not constitute a violation of a private pleasure use warranty in a yacht insurance policy.

[2] Ambiguous terms in an insurance policy, particularly those relating to the use of the insured property, should be construed in favor of the insured.

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Facts & Procedural History

An insured boat, covered by a private pleasure yacht policy, occasionally had surplus fish sold to defray expenses. The boat sank, and the insurer den…

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Opinion of the Court
HERSEY, Judge.

HERSEY, Judge.

Eastern Insurance Company appeals from a final judgment determining that appellee is entitled to coverage for loss of an insured boat.

The Rock Beauty, a fifty-seven foot Chris-Craft vessel was jointly owned by appellee, Austin, and a partner. The boat was used for charter. In about May of 1976 appellee bought out his partner and retired the vessel from commercial use. Accordingly, the status of a loan against it changed from “commercial loan” to “installment loan” and the insurance policy in issue here was acquired in response to a requirement of the bank which held the loan. Appellant, through an agent, provided a private pleasure yacht policy which contained the following “private pleasure and transfer of interest” clause:

The coverage under this policy shall terminate upon the sale, assignment, transfer, or pledge of the interest of the insured in the property insured hereby or upon the use of the yacht for other than private pleasure purposes or upon the chartering or rental of the yacht, unless a previous written consent of the company has been obtained.

The boat was in fact used for pleasure, but the evidence showed that on three or four occasions appellee would sell surplus fish caught by him and his guests to either commercial establishments or individuals on the dock and the proceeds would be used to help defray expenses. On one or more occasions the arrangement between appellee and his fishing guests required that a certain percentage of the entire catch be sold for this purpose. On no occasion were proceeds of a sale sufficient to defray total expenses.

In February of 1978 appellee and some friends planned a fishing trip to the Bahamas. Appellee encountered a delay and the others left on the Rock Beauty. Appellee was to fly over and join them in the Bahamas. The vessel struck an object in stormy weather and sank fifteen miles from the Bahama Islands in water of a depth precluding recovery.

Appellant insurance company denied coverage and this litigation ensued.

After a non-jury trial the court found that the incidental sale of surplus fish was not a violation of the pleasure craft warranty and that, even if it were, the result would be only a temporary suspension of coverage during a commercial operation rather than a termination of the policy.

Appellant’s position, on appeal, is that “using the vessel to catch fish for profit” constituted a violation of the private pleasure warranty provision of the policy of marine insurance and therefore voided coverage.

Relying on Section 627.409(2), Florida Statutes (1979), appellant points out that a violation voids coverage rather than operating to suspend coverage where the “violation increased the hazard . ... ” The hazard was increased, insists appellant, by virtue of the fact that its reinsurance treaties prohibited any commercial use. It is unclear whether appellant considers this a separate and distinct type of “increased hazard” or whether it only becomes so in conjunction with the fact that a vessel used commercially is ordinarily subject to great er hazards than one utilized solely for pleasure. We think that the reinsurance restriction, in and of itself may increase the exposure of appellant but not the hazard, which term we take to refer to danger to the insured vessel itself. We accept, arguendo, that the real hazard is substantially greater for a commercial use than if use of the craft is devoted exclusively to pleasure. We can not and do not accept the premise that the occasional sale of fish caught on a pleasure fishing trip has any relevancy whatsoever to hazard in this sense.

Another argument relied on by appellant is that use of the yacht in this manner called into play the exclusionary provision because, under Florida law, Section 371.021 Florida Statutes (1979), it became a commercial vessel. That section reads:

(10) “Commercial vessel” means:
(a) Any resident vessel engaged in the taking of saltwater fish or saltwater products, freshwater fish or freshwater products, for sale either to the consumer, retail dealer or wholesale dealer;

(b) Any vessel engaged in any activity wherein a fee is paid by the user, either directly or indirectly to the owner, operator, or custodian of the vessel.

From this appellant postulates that the Rock Beauty was a commercial vessel and therefore the private pleasure warranty was violated.

However, in its ordinary connotation, commercial or charter use involves a commercial venture with investment in gear and equipment, intent on making some form of profit. One who would ascribe an exotic meaning to a term in a contract which otherwise has perfectly ordinary connotations must take pains to define the term either expressly or by express reference. The insurance policy at issue here contains no reference to the above quoted statutory provision nor does it define the terms “charter” or “private pleasure purposes.”

Since the terms “charter” and “private pleasure purposes” are subject to more than one interpretation, that interpretation which sustains the claim for benefits controls. Aetna Insurance Co. v. Webb, 251 So. 2d 321 (Fla. 1st DCA 1971). Ambiguity and uncertainty should be construed in favor of the insured. Stuyvesant Insurance Co. v. Butler, 314 So. 2d 567 (Fla.1975).

The Rock Beauty was used basically for pleasure. At no time did an incidental sale of fish defray the entire expense of a trip. Thus, there was never a profit. While that does not absolutely determine the issue, for not every business makes a profit, it can be fairly said that most businesses intend either to make a profit or to reap some tax benefit which is advantageous even if, strictly speaking, it is not a “profit.”

The evidence supports the holding of the trial judge that incidental sales of fish on a few occasions for the purpose of defraying some of the expenses was not a violation of the private pleasure use warranty. Having concluded that the final judgment should be affirmed on that basis, we do not reach the issue of the effect of a temporary or occasional violation of such a warranty.

ANSTEAD and GLICKSTEIN, JJ., concur.


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  • Specialty Rests. Corp. v. City OF Miami, 501 So. 2d 101 (Fla. 3d DCA 1987)
    …y of Miami contains no glossary of terms, thus the plain and ordinary meaning of the words used therein are to be applied. State Dept. of Business Regulation v. Salvation, Ltd., 452 So. 2d 65 (Fla. 1st DCA 1984); Eastern Insurance Company v. Austin, 396 So. 2d 823 (Fla. 4th DCA 1981). One looks to the dictionary for the plain and ordinary meaning of words. City of Miami Beach v. Royal Castle System, Inc., 126 So. 2d 595 (Fla. 3rd DCA 1961). Every dictionary definition reviewed by the Court makes it clear that…
  • Great Lakes Reinsurance (uk), PLC v. Rosin, 757 F. Supp. 2d 1244 (S.D. Fla. 2010)
    …hazard is on Great Lakes. See Florida Power and Light v. Foremost Ins. Co., 433 So.2d 536, 536-37 (Fla. 4th DCA 1983). A hazard, for purposes of the statute, concerns “danger to the insured vessel itself.” See Eastern Ins. Co. v. Austin, 396 So.2d 823, 825 (Fla. 4th DCA 1981). *1259 Based on the evidence presented at trial, I conclude that Great Lakes has met its burden and shown that Paul’s operation of the “Queen of Hearts” increased the hazard within the meaning of § 627.409(2). First…
  • …rties. See generally Pickett v. Woods, 404 So.2d 1152, 1153 (Fla. App. 1981) (explaining that § 627.409(2) was “designed to prevent the insurer from avoiding coverage on a technical omission playing no part in the loss"); Eastern Ins. Co. v. Austin, 396 So. 2d 823, 824-25 (Fla. App. 1981) (concluding that the term "hazard" in § 627.409(2) “refer[s] to danger to the insured vessel itself"). It appears that, under Florida law, the burden of proving a breach and "a resulting increase of the hazard" is on the in…

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