JOSEPH URAM JEWELERS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
LIBERTY MUTUAL FIRE INSURANCE CO., A FOREIGN CORPORATION AUTHORIZED TO DO BUSINESS IN FLORIDA, APPELLEE

Fla. 3d DCA | 1972-12-12
No. 72-269
Before PEARSON, CHARLES CARROLL and HENDRY, JJ.
273 So. 2d 111 Florida District Court of Appeal, Third District (1972) Caution
Cited by 18 cases

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.

Synopsis

This case concerns whether an insurance policy's exclusion for "mysterious disappearance" overrides the coverage requested in the application, especially when the application was attached to the policy without explicit denial of the requested coverage. The court found the application's terms controlling, leading to a reversal of the lower court's decision.


Holding

The trial court erred in directing a verdict for the insurer. The provisions of the insurance application, which requested "mysterious disappearance" coverage, are controlling over the conflicting exclusion in the policy, as this interpretation provides greater indemnity to the insured.


Headnotes

[1] When the provisions of an insurance application and the policy irreconcilably conflict, the application controls if it provides greater indemnity to the insured.

[2] An insured's failure to read the fine print of an insurance policy does not preclude them from claiming an irreconcilable conflict exists between the policy and the cover…

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Key Quotes

“THIS POLICY INSURES AGAINST ALL RISKS OF LOSS OF OR [sic] DAMAGE TO THE ABOVE DESCRIBED PROPERTY ARISING FROM ANY CAUSE WHATSOEVER EXCEPT: ... “(M) Unexplained loss; mysterious disappearance; loss or shortage disclosed on taking inventory . . .””

This quote establishes the policy's exclusion for mysterious disappearances, which was the basis for the insurer's denial of the claim.

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Facts & Procedural History

Joseph Uram Jewelers applied for an insurance policy with "0 Deductible Mysterious Disappearance" coverage. The insurer's agent indicated this coverag…

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Opinion of the Court
HENDRY, Judge.

HENDRY, Judge.

Appellant-plaintiff jewelry company seeks review of an adverse final judgment entered on a directed verdict for the de*112fendant in an action for breach of a jeweler’s block insurance contract.

The facts of this cause, viewed in the light most favorable to the appellant,1 revolve around the desire of the appellant to secure insurance coverage for “mysterious disappearance”. In June of 1968, the appellant applied to the appellee for issuance of an insurance policy that would cover these, so-called, “mysterious disappearances” of merchandise or goods in for repair at appellant’s place of business. With the aid of appellee’s authorized agent, the appellant filled out the application for insurance and requested “0 Deductible Mysterious Disappearance” coverage under the policy. Appellee’s agent told the appellant that such coverage would be denied by the insurance company if they would not accept same. Subsequently, the appellee returned the policy to the appellant with the application attached. No deletions were made on the application to indicate that the requested coverage was not covered by the policy. However, the appellant did not read the fine print of the policy to make sure that it conformed to the application. At no time was the appellant specifically informed by the company or its agent that the coverage requested had been denied.

In May of 1969 it was discovered by the appellant that certain jewelry within the store had “mysteriously disappeared” and the police were notified. The appellant notified the appellee insurer of the losses and the appellee’s agents investigated. Ap-pellee insurer, thereupon, denied liability for the losses under the provisions of the policy that provided:

“INSURING CONDITIONS
“5. THIS POLICY INSURES AGAINST ALL RISKS OF LOSS OF OR [sic] DAMAGE TO THE ABOVE DESCRIBED PROPERTY ARISING FROM ANY CAUSE WHATSOEVER EXCEPT:
«
“(M) Unexplained loss; mysterious disappearance; loss or shortage disclosed on taking inventory . . .”

Upon denial of coverage, the appellant was forced to pay for the losses in the amount of approximately $16,550.00. The appellant, then, brought this action and at the close of the plaintiff’s testimony a directed verdict was entered in favor of the appel-lee insurer.

The appellant presents one point for our consideration, to-wit:

“WHETHER THE TRIAL COURT ERRED IN DIRECTING A VERDICT FOR THE DEFENDANT, AT THE CLOSE OF THE PLAINTIFF’S CASE, ON THE GROUNDS THAT AS A MATTER OF LAW, NO COVERAGE EXISTED UNDER THE POLICY FOR THE LOSS INVOLVED.”

We find that the trial court was in error in directing the verdict for the insurer due to lack of coverage under the policy. We, therefore, reverse. '

This case presents a situation wherein the terms of the policy as to “mysterious disappearances” are in direct conflict with the desired coverage indicated in the attached application. We must determine which provision is to be controlling — the policy or the application for coverage, since the conflict between the two are irreconcilable.

The policy itself recognized that the application “attached hereto and made a part hereof” is considered “to be the basis of this policy . . .” Thus, it has been recognized that recitations of this nature result in the application being deemed incorporated and made a part of the contract of insurance. 1 Couch on Insurance 2d, § 4:3, p. 153.

*113We, of course, recognize the general rule that when the provisions of the application and those of the policy irreconcilably conflict, the policy provision will usually govern. 1 Couch on Insurance 2d, § 15:32, p. 703; 13 Appleman, Insurance Law & Practice, § 7583, p. 339. However, that rule is qualified in cases where reliance on the provisions of the application would result in greater indemnity. In such circumstances, the provisions of the application will control. 1 Couch on Insurance 2d, supra at 704; 13 Appleman, Insurance Law and Practice, supra, at 341.

The courts of this state have generally followed the view of construing ambiguous terms of insurance contracts in favor of greater indemnity for the insured, when doubts cannot be reconciled. See: Daleo v. Bert and Bette Bayfront 66 Marine (Travelers Indemnity Co.), 273 So.2d 113 (Fla.App.3d, opinion filed December 12, 1972) and the cases cited therein.

Thus, in Quick v. National Indemnity Co., Fla.App.1970, 231 So.2d 22, the general rule was followed and the provisions of the policy were held to govern since such an interpretation was consistent with more indemnity for the insured. In the case sub judice, however, we feel that the provisions of the application are controlling and will result in greater coverage under the policy. Kennedy v. Lumbermen’s Mutual Casualty Co., Fla.App.1972, 264 So.2d 32; Chatmon v. Lumbermens Mutual Casualty Co., 268 So.2d 551 (Fla.App.3d, opinion filed November 14, 1972).

In addition, we do not believe that the insured’s failure to read the policy precludes him from claiming that an irreconcilable conflict exists between the policy and coverage desired. Blumberg v. American Fire & Casualty Co., Fla.1951, 51 So.2d 182.

Therefore, for the reasons stated and upon the authorities cited, the judgment appealed from is hereby reversed.

Reversed.


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Citator

Cited By

  • Mathews v. Ranger Ins. Co., 281 So. 2d 345 (Fla. 1973)
    …he District Court of Appeal, Third District, reported at 267 So. 2d 867 (1972), and the cases of Home Insurance Company v. Southport Terminals, Inc., 240 So. 2d 525 (Fla.App.1970), and Joseph Uram Jewelers, Inc. v. Liberty Mutual Fire Insurance Co., 273 So. 2d 111 (Fla.App.1972). Petitioners are the Administratrix and survivors of the deceased, Charles Mathews, a student pilot who died as a result of injuries sustained when the Cessna 120 aircraft he was aboard crashed to the ground near Princeton, Florida.…
  • Liberty Mut. Fire Ins. Co. v. Sanderman, 286 So. 2d 254 (Fla. 3d DCA 1973)
    …licy and the coverage desired. See Blumberg v. American Fire & Casualty Co., Fla.1951, 51 So. 2d 182. This court considered a factual situation analogous to the instant case in Joseph Uram Jewelers, Inc. v. Liberty Mut. Fire Ins. Co., Fla.App.1972, 273 So. 2d 111. A jeweler requested coverage for “mysterious disappearances” of his merchandise from the insurer’s agent and filled out an application for insurance requesting the same. The agent informed the insured that the coverage would be denied by the insura…
  • S.C. Ins. Co. v. Wolf, 331 So. 2d 337 (Fla. 1st DCA 1976)
    …o. 2d 34, (3rd D.C.A., 1964); Liberty Mutual Fire Insurance Company v. Sanderman, 286 So. 2d 254 (3rd D.C.A., 1973) ; Mathews v. Ranger Insurance Company, 281 So. 2d 345 (Fla.1973); and loseph Uram Jewelers, Inc. v. Liberty Mutual Insurance Company, 273 So. 2d 111, (3rd D.C.A., 1972). Durbin is inapplicable for, as was pointed out in Frank, et al. v. Travelers Indemnity Company of Hartford, Connecticut, Fla.App., 310 So. 2d 418 (3rd D.C.A., 1975) that decision rested upon previous dealings of the parties. I…

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