LINDA J. SPURGEON, A MINOR, BY HER NEXT FRIEND, MARLENE J. SCRAY, AND MARLENE J. SCRAY, INDIVIDUALLY, APPELLANTS,
v.
STATE FARM MUTUAL INSURANCE COMPANY, A CORPORATION, ET AL., APPELLEES

Fla. 1st DCA | 1964-12-01
No. F-204
STURGIS, C. J., and WIGGINTON and RAWLS, JJ., concur.
169 So. 2d 343 Florida District Court of Appeal, First District (1964) Negative Treatment
Cited by 22 cases

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Synopsis

Spurgeon recovered a judgment against a negligent driver insured by State Farm. State Farm moved for summary judgment arguing its policy provided only excess coverage over the primary insurer, International Automobile Insurance Exchange. The court affirmed summary judgment for State Farm, holding that the plaintiff must first exhaust remedies against the primary insurer before pursuing State Farm.


Holding

State Farm's summary judgment was properly granted because its insurance is excess coverage that only becomes payable after the primary insurer's coverage is exhausted. The plaintiff must first proceed against International Automobile Insurance Exchange and exhaust legal remedies before a cause of action accrues against State Farm.


Key Quotes

“In order for plaintiff to obtain a cause of action against State Farm, she must first proceed against International for collection of her judgment. A condition precedent for her to establish a cause of action against State Farm is the allegation that she has exhausted her legal remedies against International in her efforts to collect the judgment and that same is not collectable.”

Establishes the legal requirement that plaintiff must exhaust primary coverage before pursuing excess insurer

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Facts & Procedural History

Linda Spurgeon obtained a judgment of $4,182.00 against Charles Thomas Vines, who was driving an automobile owned by Jay G. Moulton. Vines was insured…

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Opinion of the Court
RAWLS, Judge.

RAWLS, Judge.

Appellant-Plaintiff Spurgeon recovered a judgment in the sum of $4,182.00 against Charles Thomas Vines, the negligent driver of an automobile owned by one Jay G. Moulton. Defendant-Appellee State Farm Mutual Insurance Company was Vines’s insurer and International Automobile Insurance Exchange was the insurer of the automobile involved in the accident. The maximum coverage under each policy was more than sufficient to satisfy the judgment.

In the instant cause, Plaintiff Spurgeon filed her complaint against the said two insurance companies alleging that each was liable to plaintiff for the payment of the *344aforesaid judgment. Copies of the material portions of the policies were attached to the complaint. State Farm Insurance Company, after filing its answer but without submitting any other proofs, moved for summary judgment on the grounds that its insurance was excess insurance and was not payable until the coverage under International Automobile Insurance Exchange was exhausted.1 The trial court entered summary final j judgment in favor of State Farm Mutual Insurance Company finding:

“In moving for summary judgment, the defendant State Farm contends it is not obligated to pay the judgment recovered by the plaintiffs in any event, because such insurance as is afforded with respect to a non-owned automobile is excess insurance over other collectable insurance, and, at the time of the injury, Charles Thomas Vines was insured by the International policy, which insurance is primary. The question thus resolves itself solely into one of law; that is, does the policy issued by the defendant International Automobile Insurance Exchange provide coverage to Charles Thomas Vines, who was driving the automobile described therein at the time of the accident?
“The policy issued by International Automobile Insurance Exchange defines the word ‘assured’ as including only the named assured and his or her spouse, except while the assured vehicle is operated on a military base, but condition 8 of the policy reads, in part, as follows:
“ ‘Such insurance as is afforded by this policy for bodily injury liability or property damage liability shall comply with the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable with respect to such liability arising out of the ownership, maintenance or use of the automobile during the policy period; to the extent of the coverage and limits of liability required by such law * * * t
“The clause above quoted is identical’, with the clause construed in Howard v. Am. Service Mut. Ins. Co., 1963, 151 So.2d 682. That case forecloses-any attempt to contend that Charles-Thomas Vines was not within the coverage of the International Automobile-Insurance Exchange policy, and hence,, there is no liability on the defendant State Farm to pay the plaintiffs’ judgment until the International policy has. become exhausted.
“On the present record 'there is no1 suggestion that the insurance provided by the International policy is not collectable. This issue is not raised, andi the court cannot speculate as to the rights of the plaintiffs against State Farm, should it be determined that although coverage is provided by the International policy, the insurance thereby afforded is, for other reasons, not. collectable. That question is. not reached and is not decided.”

We conclude that the; trial judge was correct in entering said summary final judgment.

In order for plaintiff to obtain a cause of action against State Farm, she must first proceed against International for collection of her judgment. A condition precedent for her to establish a cause of action against State Farm is the allegation that she has exhausted her legal remedies against International in her efforts to collect the judgment and that same is not collectable. Once these allegations can be sustained, plaintiff then has a cause of action against State Farm. Conversely, until said allegations can be sustained, the cause of action does. *345not accrue. Needless to say, the instant summary final judgment is not res judicata ■of such a subsequent suit.

Affirmed.

STURGIS, C. J., and WIGGINTON and RAWLS, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (11 total)

  • …mary and excess liability. There are numerous cases in Florida which hold that the owner of an automobile is primarily liable for the results of an accident, even when the automobile has been loaned (Spurgeon v. State Farm Mutual Insurance Company, 169 So. 2d 343 (Fla.App.1st, 1964)) or leased. Roth v. Old Republic Insurance Company, 269 So. 2d 3 (Fla.1972). However, only one such case has involved a tractor-trailer combination with facts similar to the case sub judice. Allstate Ins. Co. v. American Casualt…
  • AETNA Cas. & Sur. Co. v. Beane, 385 So. 2d 1087 (Fla. 4th DCA 1980)
    …even if the release and satisfaction do not enure to its benefit, any recovery against Aetna is precluded by a fundamental defect in the pleadings which is incapable of being remedied. Aetna relies on Spurgeon v. State Farm Mutual Insurance Company, 169 So. 2d 343 (Fla. 1st DCA 1964), for the proposition that in order to state a cause of action against an excess insurer a complaint must allege that plaintiff has exhausted all legal remedies against the primary insurers in an effort to collect a judgment or th…
  • AETNA Cas. & Sur. Co. v. Mkt. Ins. Co., 296 So. 2d 555 (Fla. 3d DCA 1974)
    …rance provision in Market’s policy with National Car Rental, Aetna’s policy did not come into play as the limit of Market’s coverage ($975,000) in the instant case was not exhausted. Cf. Spurgeon v. State Farm Mutual Insurance Company, Fla.App.1964, 169 So. 2d 343; Cunningham v. Austin Ford, Inc., Fla. App.1966, 189 So. 2d 661. Accordingly, we reverse that part of the judgment finding that Aetna is required to pay $17,500 as its prorated share of the excess coverage to Market. Last, appellant contends that…

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