W. J. KIELY & CO., INC., A FLORIDA CORPORATION, APPELLANT,

v.

BITUMINOUS CASUALTY CORPORATION, AN ILLINOIS CORPORATION, APPELLEE

Fla. 3d DCA | 1962-10-23

No. 62-96

Before PEARSON, TILLMAN, C. J., and CARROLL and BARKDULL, JJ.

145 So. 2d 762 Florida District Court of Appeal, Third District (1962) Positive Treatment

Cited by 6 cases

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Holding

The court held that the defendant insurer had the burden of proving the insured's non-cooperation as an affirmative defense, and the plaintiff was not required to disprove it.

Facts & Procedural History

Plaintiff sued the insurer on a policy after obtaining a judgment against the insured. The insurer disclaimed liability, alleging non-cooperation. The…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics

Suit On Insurance Policy Directed Verdict Standard Directed Verdict Standard Of Review

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Opinion of the Court

CARROLL, Judge.

The plaintiff below has appealed from a judgment entered on a directed verdict for the defendant. In a prior action against the insured for personal injuries, in which he was defended by the insurance company’s attorneys, a judgment was obtained for $5,000 plus certain costs. The insurer company then disclaimed liability, and this suit was filed on the policy. The complaint contained a general allegation of compliance with conditions precedent, one of which was co-operation with the insurer.1 Rule 1.9(c), F.R.C.P., 30 F.S.A., authorizes a general allegation of performance of conditions precedent, and provides that denials of performance thereof shall be made specifically.2 The defendant insurer interposed only a general denial to the allegation of performance of conditions precedent.3 Further in its answer the defendant averred non-co-operation as an affirmative defense.4

*763On trial before a jury plaintiff rested after showing the policy and judgment. Defendant’s motion for directed verdict was then granted by the trial judge on the grounds that the plaintiff had not shown a prima facie case, holding plaintiff had the burden to prove the co-operation. In so ruling the learned trial judge was in error. The defendant had not, in response to the plaintiff’s allegation of performance of conditions precedent, denied the co-operation condition “specifically and with particularity.” The appellee’s reliance on an Author’s Comment to the rule in question, to the effect that a specific denial of an allegation of pérformance of a condition precedent forces plaintiff to prove it, was misplaced. This is so because specific denial, on which the author’s comment was based, was not made here and the averment on the subject in the answer was not in response to the general allegation of performance of conditions precedent, but to other allegations of the complaint and the averment of non-co-operation was an affirmative defense. In United States Fidelity & Guaranty Co. v. Snite, 106 Fla. 702, 143 So. 615, at 616, the Supreme Court of Florida held that on such a defense the defendant insurance company has the burden of proof, saying:

“The question of whether or not Nicholas Scocos violated the condition of the liability policy above referred to in such manner as to relieve the surety company of liability on its policy became a question of fact for the jury to determine, the burden of proof being on the surety company to show that such condition of the policy had been so violated. See Taxicab Motor Co. v. Pacific Coast Casualty Co., etc., 73 Wash. 631, 132 P. 393; United States Fidelity & Guaranty Co. v. Williams, 148 Md. 289, 129 A. 660; United States Casualty Co. v. Drew (C.C.A.), 5 F.2d 498.”

The plaintiff met its burden to show a prima facie case. It was not required to disprove the affirmative defense averred by the defendant. United States Fidelity & Guaranty Co. v. Snite, supra; Kimbro v. Metropolitan Life Insurance Company, Fla.App.1959, 112 So.2d 274, 277-278. We therefore hold that on this record the appellant is entitled to a new trial.

Accordingly, the judgment appealed from is reversed and the cause remanded for new trial.

Reversed and remanded.

.Paragraph 6 of the complaint alleged that the insurer, through its attorneys, had defended the personal injury action and handled an appeal from the adverse judgment. In answer thereto the defendant averred: “6. It [defendant] admits each fact alleged in Paragraph 6, but avers that the defense of the action was continued through trial upon a reservation of rights notice served upon the assured due to his failure to attend the trial as requested, and as required by the policy, even though the assured had *763been notified of the trial and W. J. Kiely & Co., Inc., acting through its President, W. J. Kiely had promised to be present. The'prosecution of the appeal was under said reservation of rights after notice to W. J. Kiely & Co., Inc. and W. J. Kiely in an effort to protect the assured from the consequences of Ms own failure to attend the trial.”

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Am. Fire & Cas. Co. v. Collura, 163 So. 2d 784 (Fla. 2d DCA 1964)

…ire & Casualty Co. v. Vliet, supra; Barnes v. Pennsylvania Threshermen & F. Mutual Ins. Co., supra; United States Fidelity & Guar. Co. v. Snite, 1932, 106 Fla. 702, 143 So. 615; and W. J. Kiely & Co. v. Bituminous Casualty Corporation, FIa.App.1962, 145 So. 2d 762. Thus, the company takes the position that where, as here, the cooperation clause is made an expressed condition precedent, there is no requirement that the company show that prejudice resulted from a breach of the cooperation clause. We conclude th…
Cap. Nat'l Bank (Peoples Downtown Nat'l Bank) v. S. Pine Isle Corp., 353 So. 2d 600 (Fla. 3d DCA 1977)

…Dura-Stress, Inc., 243 So. 2d 244 (Fla.2d DCA 1971); Fidelity & Casualty Company of New York v. Tiedtke, 207 So. 2d 40 (Fla.4th DCA 1968), reversed on other grounds at 222 So. 2d 206 (Fla.1969); W. J. Kiely & Co. v. Bituminous Casualty Corporation, 145 So. 2d 762 (Fla.3d DCA 1962); Trawick’s Florida Practice and Procedure, Pleadings, § 6-20 (1977). Accordingly, after carefully reviewing the record, all points in the briefs and arguments of counsel, it is our opinion that the final judgment must be, and is h…
Antonio Pasarin, M.D. v. ST. Paul Fire & Marine Ins. Co., 581 So. 2d 183 (Fla. 3d DCA 1991)

…PER CURIAM. Affirmed. See Hospital Corporation of America v. Lindberg, 571 So. 2d 446 (Fla.1990); W.J. Kiely & Company, Inc. v. Bituminous Casualty Corp., 145 So. 2d 762 (Fla. 3d DCA 1962); Fla.R.Civ.P. 1.120(c).…

Authorities Cited

United States Fid. & Guar. Co. v. Snite, 106 Fla. 702 (Fla. 1932)
Kimbro v. Metro. Life Ins. Co., 112 So. 2d 274 (Fla. 3d DCA 1959)
United States Cas. Co. v. Drew, 5 F.2d 498 (9th Cir. 1925)

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