LOUIS K. SMITH AND CATHERIN Y. SMITH, INDIVIDUALLY AND AS MAN AND WIFE, APPELLANTS,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A FOREIGN INSURANCE COMPANY AUTHORIZED TO DO BUSINESS IN FLORIDA, APPELLEE
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This dissenting opinion argues that an insurance policy should not cover the loss of a vehicle that was stolen, as the insured did not have sole ownership and the loss was due to the prior owner's interest, not theft.
The dissenting judge would affirm the dismissal, arguing that the insured's loss was not covered because they lacked sole ownership of the stolen vehicle.
The insured purchased a vehicle and insured it, declaring sole ownership. The vehicle was later discovered to be stolen, and the true owner's interest…
The full statement of facts, procedural history, and disposition for this case are member content.
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This appeal is by the plaintiffs and is from a final judgment for the defendants based on an order which granted their motion to dismiss the plaintiffs’ complaint.
The Smiths, plaintiffs below, were bona fide purchasers for value of a 1965 Cadillac automobile.
The defendants, State Farm Mutual Automobile Insurance Company, issued a policy of insurance on the car insuring the Smiths against loss by theft. The car was stolen from them whereupon they notified the insuror and filed a claim under their policy. The police recovered the car and ascertained that it was a stolen vehicle when the Smiths had purchased it. The police ultimately returned the car to its rightful owners and the insuror refused to pay the plaintiffs for the theft of the car. This suit followed and the trial court granted the defendants’ motion to dismiss and entered final judgment on the theory that the plaintiffs’ loss was not caused by the theft of the car but because of the return of the car to its true owners by the police. We reverse.
Originally, it was contended that the Smiths had no insurable interest in the car but that argument is no longer valid. See Skaff v. United States Fidelity & *390Guaranty Company, Fla.App.1968, 215 So.2d 35. The Florida title certificate was in the name of the Smiths; they had an insurable interest in the car; it was stolen from them and their insurance policy with the defendant insured them against theft. It follows that a cause of action was 'stated.
The question of whether the loss (damages) which they suffered was caused by the theft of the car or whether it was caused by virtue of the return of the car to its rightful owners by the police was a question of fact to be determined by a jury. See 29A Am.Jur. Insurance § 1134; VI Blashfield, Cyclopedia of Automobile Law and Practice § 3777. In other words, the question to be determined is what was the proximate cause of the loss suffered by the Smiths? This we believe is a question for the jury.
We, therefore, reverse and remand for further action consistent herewith.
Reversed and remanded.
(dissenting).
I respectfully dissent. The contract of insurance sued upon avers that it was written in reliance of the declarations in the policy which in turn stated that the insured is the sole owner of the described automobile. The complaint affirmatively alleges that in fact the vehicle had been a stolen vehicle and was being detained for redelivery to its true owner. Obviously the Plaintiff was not the sole owner. The decision of K. V. Gurley v. Phoenix Insurance Company, 233 Miss. 58, 101 So.2d 101, 71 A.L.R.2d 221, precludes recovery in such an instance.
It is further noted that the Plaintiff is suing for the full value of the automobile. The loss of the full value of the automobile was caused by a prior owner’s interest and not the theft. Though an insurable interest existed in the Plaintiff (Skaff v. United States Fidelity and Guaranty Co., 215 So.2d 35), and this interest could be insured against all but the rightful owner, it cannot extend to protect the named insured against this interest of the true owner.
I fail to find the issue of fact my colleagues do and would affirm without further proceedings.
McDONALD, PARKER LEE, Associate Judge
(dissenting).
I respectfully dissent. The contract of insurance sued upon avers that it was written in reliance of the declarations in the policy which in turn stated that the insured is the sole owner of the described automobile. The complaint affirmatively alleges that in fact the vehicle had been a stolen vehicle and was being detained for redelivery to its true owner. Obviously the Plaintiff was not the sole owner. The decision of K. V. Gurley v. Phoenix Insurance Company, 233 Miss. 58, 101 So. 2d 101, 71 A.L.R.2d 221, precludes recovery in such an instance.
It is further noted that the Plaintiff is suing for the full value of the automobile. The loss of the full value of the automobile was caused by a prior owner’s interest and not the theft. Though an insurable interest existed in the Plaintiff (Skaff v. United States Fidelity and Guaranty Co., 215 So. 2d 35), and this interest could be insured against all but the rightful owner, it cannot extend to protect the named insured against this interest of the true owner. I fail to find the issue of fact my colleagues do and would affirm without further proceedings.
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Grimm v. Prudence Mut. Cas. Co., 243 So. 2d 140 (Fla. 1971)…a. 1970). In that case we approved the holdings of the First and Third District Courts of Appeal that bona fide purchaser for value of stolen automobiles have an “insurable interest” therein. See, Smith v. State Farm Mutual Automobile Insurance Co., 220 So. 2d 389 (3rd D.C.A.Fla.1969) ; and Skaff v. United States Fidelity & Guaranty Co., 215 So. 2d 35 (1st D.C.A.Fla.1968). The district court in the present case distinguishes these cases saying that in each case the insured had an equitable interest in the car…
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Smith v. State Farm Mut. Auto. Ins. Co., 231 So. 2d 193 (Fla. 1970)…wable damages, under the express terms of the contract relating to loss occasioned by the temporary loss of use of the car.6 It is so ordered. ERVIN, C. J., and ROBERTS, ADKINS and BOYD, JJ., concur. . Smith v. State Farm Mutual Automobile Ins. Co., 220 So. 2d 389 (3d Dist.Ct.App.Fla.1969). . 154 So. 2d 313 (2d Dist.Ct.App.Fla.1963). . 176 So. 2d 909 (1st Dist.Ct.App.Fla.1965). . 177 So. 2d 712 (3d Dist.Ct.App.Fla.1965). . Skaff v. United States Fidelity & Guaranty Co., 215 So. 2d 35 (1st Dist.Ct.App.Fla.1968…
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Smith v. State Farm Mut. Auto. Ins. Co., 232 So. 2d 421 (Fla. 3d DCA 1970)…da pursuant to the opinion and judgment of that court filed February 4, 1970 (231 So. 2d 193), disapproving the concluding paragraph with directions to eliminate said paragraph of the prior opinion and judgment of this court in this cause (Fla.App., 220 So. 2d 389). In accord with the directive of the judgment of the Supreme Court of Florida, the concluding paragraph of our prior opinion and judgment is vacated, the said opinion and judgment is amended in accordance with the opinion of the Supreme Court and…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States Fid. & Guar. Co. v. Lennie L. Humphries, 215 So. 2d 35 (Fla. 1st DCA 1968)