AMERICAN FIRE AND CASUALTY COMPANY, APPELLANT,
v.
LEE J. BLAINE AND FLORENCE BLAINE, HIS WIFE, AND RUBY HOLLOWAY, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
An insurance company, sued as a garnishee after a jury verdict against its insured, challenged a summary judgment in favor of the plaintiff. The court reversed, holding that the issue of whether the injury was caused by intentional tort—excluded from the insurance policy—could not have been resolved in the original negligence trial and remained open for determination in garnishment proceedings.
The insurance company is not bound by the negligence verdict in the original trial regarding the exclusion for intentional torts. The issue of whether the act was an intentional tort could not have been adversely determined in the original trial because it was eliminated from the issues submitted to the jury, and therefore remained open for determination in garnishment proceedings.
“the issues raised by the pleadings in garnishment go to the exculpatory provisions in the insurance contract, to wit: whether or not the act that injured the plaintiff was an intentional tort. This was not an issue which could have been adversely determined in the trial court, as it was submitted to the jury and it therefore remained open for subsequent proceedings.”
Establishes the court's core holding that the intentional tort exclusion issue was not determined in the original trial and remains available for the garnishment proceeding.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe original defendant was sued for negligence and intentional tort causing personal injury. Before trial, the intentional tort count was eliminated f…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Res Judicata (Implied) cases and more on FLexlaw
This is an appeal by a garnishee from a summary judgment in favor of the original plaintiff.
From the record on appeal, it appears that the original defendant in the trial court was charged with negligence and intentional tort, causing personal injury to the plaintiff. The appellant, who was the insurer of the defendant, defended with a reservation of right to contest its liability in view of the provisions in the insurance contract.1 Prior to the cause coming to trial, the count for intentional tort was eliminated from the issues. A jury verdict was returned in favor of the plaintiff and no appeal was taken. Subsequently, the plaintiff instituted garnishment proceedings against the appellant as the insurer of the original defendant. The garnishee answered that it was not indebted to the defendant and denied the allegations contained in the garnishment affidavit. Following motions for summary judgments by the respective parties, the trial court entered the summary judgment in favor of the plaintiff, which is here under review. We reverse.
The appellee contends that all the issues between the insurer and the original defendant were resolved in the main trial, and cites the following as authority: Columbia Casualty Co. v. Hare, 116 Fla. 29, 156 So. 370; Wright v. Fidelity and Casualty Co. of New York, Fla.App.1962, 139 So.2d 913; Westinghouse Electric Corporation v. J. C. Penney Company, Inc., Fla.App.1964, 166 So.2d 211. We do not concur with this view, as the issues raised by the pleadings in garnishment go to the exculpatory provisions in the insurance contract, to wit: whether or not the act that injured the plaintiff was an intentional tort. This was not an issue which could have been adversely determined in the trial court, as it was submitted to the jury and it therefore remained open for subsequent proceedings. See: Spadaro v. Palmisano, Fla.App.1959, 109 So.2d 418; Manthey v. American Automobile Insurance Co., 127 Conn. 516, 18 A.2d 397; Newman v. Stocker, 161 Md. 552; 157 A. 761; Vaksman v. Zurich General Accident & Liability Ins. Co., 172 Pa.Super. 588, 94 A.2d 186; Travelers Ins. Co. v. Reed Co., Tex.Civ.App. 1939, 135 S.W.2d 611. If the issue of intentional tort had been tried in the case in chief or an issue necessarily included within the negligence count submitted to the jury, then the authorities relied on by the appellee would control. However, it is obvious that the carrier could not litigate the issue of intentional tort while defending its insured on a negligence charge. Therefore, this issue could not have been resolved in the earlier proceeding.
For the reasons above stated, the summary judgment here under review is here*607by reversed and the cause is remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Vanguard Ins. Co. v. Townsend, 544 So. 2d 1153 (Fla. 5th DCA 1989)…; Cunningham v. Austin Ford, Inc., 189 So. 2d 661 (Fla. 3d DCA 1966), cert. discharged, 198 So. 2d 829 (Fla.1967); Westinghouse Electric Corporation v. J. C. Penney Company, 166 So. 2d 211 (Fla. 1st DCA 1964); American Fire & Casualty Co. v. Blaine, 183 So. 2d 605 (Fla. 3d DCA 1966); Restatement of Judgments § 57; 31 Fla.Jur.2d Insurance § 841; 7C Appleman, Insurance Law & Practice, § 4685.01, (Berdal ed. 1979). If the insurer defends the insured, or if it provides independent defense counsel because of the c…1 / 2
-
Coblentz v. Am. Sur. Co. OF NEW York, 416 F.2d 1059 (5th Cir. 1969)…direction of the insured. American Surety apparently concluded that Carbone had committed an assault and battery. . American Surety Co. of New York v. Coblentz, 5 Cir. 1967, 381 F. 2d 185. . American Fire and Casualty Co. v. Blaine, Fla.App.1966, 183 So. 2d 605; Westinghouse Electric Corp. v. J. C. Penney Company, Inc., Fla.App.1964, 166 So. 2d 211; Wright v. Fidelity and Casualty Co. of New York, Fla.App.1962, 139 So. 2d 913; Columbia Casualty Co. v. Hare, 1934, 116 Fla. 29, 156 So. 370.…
-
Am. Sur. Co. OF NEW York v. Ralph E. Coblentz d.b.n. of the Estate of Edward Thomas Coblentz, 381 F.2d 185 (5th Cir. 1967)…ainst the insurer since the question of whether the insured was guilty of assault and battery, as opposed to negligence, is not an issue which can properly be litigated in the case-in-chief. American Fire and Casualty Co. v. Blaine, Fla.Ct.App.1966, 183 So. 2d 605. The factual situation in Blaine was nearly identical to that in the instant case, the only relevant difference being that in Blaine the insurance company defended under a reservation of right rather than withdrawing from the case. The suit by the i…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Westinghouse Elec. Corp. v. J. C. Penney Co., Inc., 166 So. 2d 211 (Fla. 1st DCA 1964)
- Columbia Cas. Co. v. Hare, 116 Fla. 29 (Fla. 1934)
- Wright v. The Fid. & Cas. Co. OF NEW York, 139 So. 2d 913 (Fla. 1st DCA 1962)
- Angeline Spadaro v. Palmisano, 109 So. 2d 418 (Fla. 3d DCA 1959)