THELMA B. COLEMAN, APPELLANT,
v.
AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, A FLORIDA CORPORATION, APPELLEE
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Coleman purchased auto insurance from American Bankers Insurance Company, which elected to repair her damaged vehicle at a shop of its choosing. After the repairs proved inadequate and took an unreasonable time, Coleman sued for damages. The appellate court reversed and remanded, holding that the insurer's election to repair created a contract obligation to properly repair the vehicle and that Coleman was entitled to attorney's fees under Florida law.
The court held that when an insurer elects to repair a vehicle and selects the repair shop, it undertakes a contract obligation to return the vehicle properly repaired. The insurer may be liable for damages for unreasonable delay in making repairs, though not for loss of use without specific policy language. The insured is entitled to attorney's fees if she recovers against the insurer in a new trial.
“If you find from the evidence that the defendant insurance company elected to repair the plaintiff's automobile in a repair shop chosen by the defendant insurance company, then you may find that the defendant insurance company is under a contract to repair the plaintiff's automobile and is obligated to the plaintiff to restore the damages automobile when returned to the insured, properly repaired.”
The correct jury instruction that should have been given, establishing the insurer's contractual obligation when it elects to repair.
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Join FLexlaw to unlock all legal intelligenceColeman purchased a casualty insurance policy covering her automobile. When the vehicle was damaged, she notified the insurer, which elected to repair…
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At the time she purchased a new automobile, the appellant obtained insurance from the appellee which covered any casualty loss to her vehicle. The vehicle was subsequently damaged and the insured duly notified the company of the damage. This ultimately resulted in the company electing to repair the automobile under the following provision of the insurance policy:
“The company may pay for the loss in money or may repair or replace the automobile or such part thereof, * * * ”
The place of repair was selected by the company. Following a return of the vehicle to the insured, she commenced the instant action in the trial court, ultimately alleging in her final amended complaint a cause of action seeking damages for inadequate repair and unreasonable length of time in accomplishing repair. The matter duly came on for trial before a jury and resulted in a verdict in favor of the appellant in the sum of $250.00.
The appellant has appealed and urges, among other points, that the trial court erred in failing to give certain instructions, among which was the plaintiff’s requested instruction No. 2 which reads as follows:
“If you find from the evidence that the defendant insurance company elected to repair the plaintiff’s automobile in a repair shop chosen by the defendant insurance company, then you may find that the defendant insurance company is under a contract to repair the plaintiff’s automobile and is obligated to the plaintiff to restore the damages automobile when returned to the insured, properly repaired.”
and instruction No. 6, which reads as follows:
“If you find from the evidence that the defendant insurance company elected to *412repair plaintiff’s automobile by selecting the repair company for the work to be performed for the plaintiff and you further find that the defendant insurance company was obligated on its contract to repair plaintiff’s automobile, then you may find as an element of damages that the plaintiff is entitled to the loss of use of plaintiff’s automobile for the time plaintiff was deprived of possession of said automobile.”
We hold that instruction No. 2 was a correct pronouncement of the law and that it should have been given to the jury, upon the authority of Auto-Owners Insurance Company v. Green, Fla.App.1969, 220 So.2d 29,1 and authorities cited therein. As to instruction No. 6 without provision for such coverage in the policy, the refusal to give the instruction was without error. Compare: Darvie v. American Bankers Insurance Company of Florida, La.App.1955, 80 So.2d 541. However, it does appear that the insurance company should be liable for damages for loss of use for any unreasonable delay in making the repairs it elected to do. Meakin v. Dreier, Fla.App.1968, 209 So.2d 252.
The appellant also urges that the trial court erred in refusing to award her attorney’s fees pursuant to the provisions of § 627.0127, Fla.Stat, F.S.A. We find that this point is also well taken, and direct that in the event the insured recovers against the appellee upon a re-trial of this matter she should then be entitled to attorney’s fees in accordance with the statute. Traders & General Insurance Company v. Williams, 229 Ark. 923, 319 S.W.2d 847; Hammack v. Resolute Fire Insurance Company, 233 La. 359, 96 So.2d 612.
The other errors urged by the appellant have been examined and found to be without merit.
Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby reversed and this cause is remanded to the trial court, with directions to grant the appellant a new trial on the issue of damages only.
Reversed and remanded, with directions.
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Singer v. Singer, 442 So. 2d 1020 (Fla. 3d DCA 1983)…al or voluntary relinquishment of a known right, but also conduct that warrants an inference of the relinquishment of a known right. See Arbogast v. Bryan, 393 So. 2d 606 (Fla. 4th DCA 1981); Coleman v. American Bankers Insurance Company of Florida, 228 So. 2d 410 (Fla. 3d DCA 1969); Fireman’s Fund Insurance Company v. Vogel, 195 So. 2d 20 (Fla. 3d DCA 1967); 22 Fla.Jur.2d § 86. Over the past 13 years the trial court has treated the monthly support payments required by the agreement as alimony subject to judi…
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Travelers Indem. Co. v. Parkman, 300 So. 2d 284 (Fla. 4th DCA 1974)…sured may be able to recover damages for any loss of use of the automobile proximately caused by a failure to repair it within a reasonable time.” 6 Apple-man, § 4005, p. 722. See too Coleman v. American Bankers Insurance Co. of Fla., Fla.App.1969, 228 So. 2d 410; Home Indemnity Company v. Bush, 20 Ariz.App. 355, 513 P. 2d 145 (1973); Owens v. Pyeatt, 248 Cal.App.2d 840, 57 Cal.Rptr. 100 (1967); Janosky v. Preferred Insurance Exchange, 52 Wash. 2d 801, 329 P. 2d 207 (1958). The obligation to repair is not fu…
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O'Rourke v. Assocs. Disc. Corp. & The First State Bank of Miami, 257 So. 2d 298 (Fla. 3d DCA 1972)…First National Bank of Leesburg v. Hector Supply Company, Fla.App.1971, 236 So. 2d 204; quashed Fla.1971, 254 So. 2d 777. Accordingly the final judgment in garnishment is reversed. See Coleman v. American Bankers Insurance Co. of Fla., Fla.App.1969, 228 So. 2d 410. [*299] Reversed and remanded for further proceedings in accordance with the law set forth in First National Bank of Leesburg v. Hector Supply Company, supra. . The instant appeal has been delayed by numerous stipulations to await the decision in t…
Authorities Cited
- Fla. E. Coast Ry. Co. v. Rouse, 194 So. 2d 260 (Fla. 1966)
- Meakin v. Dreier, 209 So. 2d 252 (Fla. 2d DCA 1968)
- Auto-Owners Ins. Co. v. Green, 220 So. 2d 29 (Fla. 1st DCA 1969)
- Brown v. Henrich, 203 So. 2d 183 (Fla. 4th DCA 1967)