STATE FARM FIRE & CASUALTY COMPANY, APPELLANT,
v.
JACK LICHTMAN AND ANN MARIA LICHTMAN, APPELLEES

Fla. 3d DCA | 1969-10-21
Nos. 68-1114, 68-1123
Before BARKDULL, HENDRY and SWANN, JJ.
227 So. 2d 309 Florida District Court of Appeal, Third District (1969) Negative Treatment
Cited by 19 cases

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Holding

An insured is not automatically barred from recovery if required records are lost without their fault, and parol evidence may be admissible to establish the loss.

Facts & Procedural History

Appellant's property was lost by burglary, and the insurer denied coverage, citing a policy condition requiring the insured to keep records to determi…

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

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Topics
Insurance Cases Attorney'S Fees In Insurance Litigation Insurance Claim Dispute Amendment Of Pleadings

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant issued an insurance policy to the appellees, covering theft of articles normally maintained in the home of the insureds. The policy covered certain items that were scheduled and individually evaluated at the time of the issuance of the policy. The policy also contained a provision covering unscheduled items, which read in part at follows:

“Coverage B — Unscheduled Personal Property.
“1. On Premises: This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling, owned, worn or used by an Insured, while on the premises, * ‡ ‡ f>

* * * * * *

Following a burglary and the loss of certain scheduled items and loss of five platinum buttons1 which were not scheduled, the company offered to settle for the amount of the scheduled items but denied liability for the loss of the five platinum buttons. Suit was instituted and an answer was filed admitting the liability on the scheduled items, with liability denied on the remainder. Thereafter, a partial summary judgment on liability for the scheduled items was entered. The company subsequently attempted to amend its answer and retract its admission of liability for the scheduled items, which the trial court denied. The trial court also denied certain discovery procedures relating to the five platinum buttons and finally, upon the date set for jury trial, entered a judgment in favor of the plaintiffs for the full amount claimed by them without submitting the matter to trial as to the alleged loss for the unscheduled items, it having previously held that the buttons were covered under the policy. It further found that the insureds were entitled to receive attorneys’ fees based only on the recovery for the unscheduled loss. The insurance company has appealed and urges error in the granting of the summary judgment on the scheduled items, the failure to permit it to withdraw its answer relating to the scheduled items admission, denying discovery relating to the platinum buttons which had been unscheduled, and entry of the final judgment. Appellee has cross-assigned error in the failure of the trial court to award the insureds an attorney’s fee for recovery of the amount of the scheduled items.

*311We affirm all the actions of the trial judge, except as to the items alleged to be covered in the unscheduled provisions of the policy and that relating to the award of attorneys’ fees, and return the matter to the trial court for a trial on all issues relating to the unscheduled items, which will also permit discovery relating thereto.

A trial court has a duty, as a matter of law, to determine the extent of coverage under an insurance policy. Miller Electric Company of Florida v. Employer’s Liability Assurance Corporation, Fla.App.1965, 171 So.2d 40; United Services Automobile Association v. Porras, Fla. App.1968, 214 So.2d 749; 18 Fla.Jur., Insurance, § 454; 44 Am.Jur.2d, Insurance, § 2064. But whether a certain set of facts exist to bring a loss to the insured within the terms of a policy is an issue to be determined by the trier of fact. Fireman’s Fund Indemnity Company v. Perry, 149 Fla. 410, 5 So.2d 862; Caledonian American Insurance Company of New, York v. Coe, Fla.1954, 76 So.2d 272; Crown Life Insurance Company v. Feagin, Fla.App. 1962, 139 So.2d 461; 18 Fla.Jur., Insurance, § 454; 46 C.J.S. Insurance § 1374. In this connection, the insurance company should be permitted discovery relating to the items alleged to be covered under the policy. Parker v. Parker, Fla.App.1966, 182 So.2d 498; Southern Mill Creek Products Co., Inc. v. Delta Chemical Company, Fla. App.1967, 203 So.2d 53; Homer v. Connecticut General Life Insurance Company, Fla.App.1968, 213 So.2d 490.

On the cross-assignment, we find that the trial court erred in limiting the fee of the insureds’ attorney commensurate with the amount recovered under the unscheduled provisions of the policy. In this particular instance, fees should be awarded also on the recovery for the scheduled items because, in fact, the amount was not tendered and, to the contrary, after the original admission the company attempted to disavow liability by its proposed amendment to its answer relating to these items. Caruthers v. Williams, Fla.1885, 21 Fla. 485; Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751; Gus’ Baths, Inc. v. Lightbown, 101 Fla. 1205, 133 So. 85, 135 So. 300; 32 Fla.Jur., Tender, § 10.

Therefore, for the reasons above stated, this matter is returned to the trial court for a jury trial and an award of attorneys’ fees in conformity with the above and foregoing opinion.

Affirmed in part; reversed in part, and remanded with directions.

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Citator

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  • Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153 (Fla. 1985)
    …ithin the scope of coverage as defined by the court: “[wjhether a certain set of facts exists to bring a loss to the insured within the terms of a policy is an issue to be determined by the trier of fact.” State Farm Fire & Causalty Co. v. Licthman, 227 So. 2d 309, 311 (Fla. 3d DCA 1969). [*1158] There was sufficient evidence upon which the jury could have concluded, as it did, that the injuries to Donnie occurred with respect to the conduct of Davis’ business. Thus, we find that the trial court did not err i…
  • Zordan v. Gerald "Bud" Page, 500 So. 2d 608 (Fla. 2d DCA 1986)
    …extent of coverage, the trier of fact has the duty to determine whether the facts place the incident within that coverage. Drisdom v. Guarantee Trust Life Insurance Co., 371 So. 2d 690 (Fla. 3d DCA 1979); State Farm Fire & Casualty Co. v. Lichtman, 227 So. 2d 309 (Fla. 3d DCA 1969). What, if any inferences can be drawn from the facts should be determined only after all the facts are known, see Bosson; Spreen, which was the procedure also followed in Hill. This is especially appropriate when there is an estab…
  • Rosetta Drisdom v. Guar. Tr. Life Ins. Co., 371 So. 2d 690 (Fla. 3d DCA 1979)
    …Ins. Co. v. Horn, 353 So. 2d 565 (Fla. 3d DCA 1977), cert. denied, 366 So. 2d 885 (Fla.1978). It is generally for the court and not for the jury to determine the extent of coverage under an insurance policy. State Farm Fire & Casualty v. Lichtman, 227 So. 2d 309 (Fla. 3d DCA 1969); United Services Automobile Association v. Porras, 214 So. 2d 749 (Fla. 3d DCA 1968). The jury must resolve whether the insured’s loss falls within the terms of the policy. State Farm Fire & Casualty v. Lichtman, supra. Particular…

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