JOHN NIXON, APPELLANT,
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY, APPELLEE

Fla. 4th DCA | 1971-11-19
No. 70-593
WALDEN, J., concurs., MAGER, J., dissents, with opinion.
255 So. 2d 277 Florida District Court of Appeal, Fourth District (1971) Positive Treatment
Cited by 2 cases

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Synopsis

Plaintiff Nixon appealed an adverse judgment in a non-jury trial where the trial court denied him insurance coverage under a liability policy. The appellate court affirmed, holding that the policy language was clear and unambiguous and therefore did not require construction in Nixon's favor.


Holding

The appellate court held that the policy language was clear and unambiguous, and therefore no ambiguity existed to be resolved in Nixon's favor. The court affirmed the trial court's judgment denying coverage.


Headnotes

[1] An appellate court presumes the correctness of a trial court's judgment and places the burden on the appellant to clearly demonstrate error.

[2] Insurance policy provisions must be read in pari materia with all other provisions to determine their meaning.

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Key Quotes

“Ambiguity of language is to be distinguished from unintelli-gibility and inaccuracy, for words cannot be said to be ambiguous unless their signification seems doubtful and uncertain to persons of competent skill and knowledge to understand them.”

Establishes the proper legal definition of ambiguity in insurance policy interpretation

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Facts & Procedural History

The case involves a dispute over coverage under a liability insurance policy issued by United States Fidelity and Guaranty Company. Nixon, the plainti…

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Opinion of the Court
SACK, MARTIN, Associate Judge.

SACK, MARTIN, Associate Judge.

This is an appeal by the plaintiff below from an adverse final judgment, rendered after a non jury trial.

The judgment comes here with a presumption of correctness, and the burden is on appellant to clearly demonstrate error by the trial court. We believe he has failed to do this; and a detailed exposition of the facts and legal contentions would be of slight precedential value to the bar or to the law of the state.

Suffice it to say that appellant’s principal contention is that the liability policy in question was ambiguous, that such ambiguity should have been resolved in his favor, and thereby the policy should have been construed to afford him coverage under the facts of this case. By their very nature, policies of insurance are relatively complex instruments and require a reading of all their provisions in pari materia with all other provisions. Ambiguity of language is to be distinguished from unintelli-gibility and inaccuracy, for words cannot be said to be ambiguous unless their signification seems doubtful and uncertain to persons of competent skill and knowledge to understand them. It does not include uncertainty arising from the use of peculiar words, or of common words in a peculiar sense. (Black’s Law Dictionary, Fourth Edition, page 105.) If the language used is clear and unambiguous, it will of course be given its natural meaning. The court should not extend strictness in construction to the point of adding a meaning to language that is clear. The rule of strict construction does not apply where the result would be a construction that the parties could not have intended. (18 Fla.Jur., Insurance, § 408.)

Applying these principles to the facts of this case, we perceive no ambiguity in the policy in question, and neither did the trial court, which heard the testimony.

Accordingly, the judgment below is affirmed.

WALDEN, J., concurs.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting):

I must dissent because I believe the general principles of law set forth by the majority have not been correctly applied to the facts of the case sub judice.

Contentions similar to those made by the parties with respect to policy provisions substantially identical to those in the case sub judice were considered in New Amsterdam Casualty Company v. Addison, Fla.App.1964, 169 So.2d 877, and Aetna Insurance Company v. Stevens, Fla.App.1969, 229 So.2d 601. In both cases the court found the existence of an ambiguity which was resolved against the insurer and in favor of the insured. Paraphrasing Judge Mann’s observations in Aetna, if the insurance company had no intention of defending the general contractor accused of negligent construction after completion of his *279work, it should have said so in plain language. As Judge Mann concluded:

“Any appellate judge who has seen what he thought was a perfectly clear opinion cited as authority for some bizarre proposition can sympathize with those who must writ technical language. The law does not penalize plain language, but it puts the cost of ambiguity squarely on the insurer.”

In light of the foregoing it is my opinion that an ambiguity exists in the policy of insurance with respect to the “Products— Completed Operations” provision. I would reverse for the reasons more fully set forth in the New Amsterdam and Aetna decisions.

Dissent
MAGER, Judge

MAGER, Judge

(dissenting):

I must dissent because I believe the general principles of law set forth by the majority have not been correctly applied to the facts of the case sub judice.

Contentions similar to those made by the parties with respect to policy provisions substantially identical to those in the case sub judice were considered in New Amsterdam Casualty Company v. Addison, Fla.App.1964, 169 So. 2d 877, and Aetna Insurance Company v. Stevens, Fla.App.1969, 229 So. 2d 601. In both cases the court found the existence of an ambiguity which was resolved against the insurer and in favor of the insured. Paraphrasing Judge Mann’s observations in Aetna, if the insurance company had no intention of defending the general contractor accused of negligent construction after completion of his work, it should have said so in plain language. As Judge Mann concluded:

“Any appellate judge who has seen what he thought was a perfectly clear opinion cited as authority for some bizarre proposition can sympathize with those who must writ technical language. The law does not penalize plain language, but it puts the cost of ambiguity squarely on the insurer.”

In light of the foregoing it is my opinion that an ambiguity exists in the policy of insurance with respect to the “Products— Completed Operations” provision. I would reverse for the reasons more fully set forth in the New Amsterdam and Aetna decisions.


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Citator

Cited By

  • Nixon v. United States Fid. & Guar. Co., 290 So. 2d 26 (Fla. 1973)
    …McCAIN, Justice. This cause is before us on petition for writ of certiorari to review the decision of the Fourth District Court of Appeal, reported at 255 So. 2d 277. Our jurisdiction is based upon conflict between this case [*27] and Aetna Insurance Co. v. Stevens, Fla.App., 1969, 229 So. 2d 601. We have jurisdiction pursuant to Fla.Const., Art. V, § 3(b)(3), F.S.A. In this construction of a liability policy o…

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