LIBERTY MUTUAL FIRE INSURANCE COMPANY, APPELLANT,
v.
SAMUEL SANDERMAN AND DIANA SANDERMAN, HIS WIFE, APPELLEES

Fla. 3d DCA | 1973-12-04
No. 73-394
Before PEARSON, HENDRY and HAVERFIELD, JJ.
286 So. 2d 254 Florida District Court of Appeal, Third District (1973) Positive Treatment
Cited by 16 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 involves an insurance dispute where policyholders sought coverage for stolen jewelry under a Florida policy that had a lower limit than their previous New Jersey policy. The court affirmed the lower court's summary judgment in favor of the policyholders, finding the insurer failed to adequately notify them of the reduced coverage.


Holding

No, the trial court did not err. The insurer failed to provide adequate notice of the material change in coverage, and the policyholders' failure to read the policy did not preclude them from claiming a conflict between the policy and their desired coverage.


Headnotes

[1] An insured's failure to read their policy does not preclude them from claiming a conflict between the policy and the coverage they desired.

[2] Where an insured requests specific coverage and is not specifically informed by the insurer or its agent that the requested coverage has been denied, the application for…

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Key Quotes

“The insureds’ failure to read their policy in this case does not preclude them from claiming a conflict between the policy and the coverage desired.”

Establishes that policyholders are not automatically barred from relief due to not reading their policy.

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Facts & Procedural History

The Sandermans, insured by Liberty Mutual in New Jersey, moved to Florida and applied for a replacement policy. They requested the same coverage limit…

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Opinion of the Court
HENDRY, Judge.

HENDRY, Judge.

Appellant, defendant in the trial court, seeks review of an order granting final summary judgment for appellees on a homeowners insurance policy.

The appellees were insured under a poli-' cy issued by the appellant in New Jersey. When the Sandermans subsequently moved to Florida, they contacted a representative in appellant’s Dade County office, Miss Pat Noegel. Appellees informed Miss Noegel they wished to cancel their New Jersey policy and receive a Florida replacement policy. Miss Noegel had the Sandermans complete an application for the Florida coverage containing the same $8,000.00 limit on coverage for unscheduled property as was listed on the New Jersey policy. Subsequently, a binder was issued to appellees, and in September 1970 appel-lees were issued their Florida policy. One year later, the Sandermans reported to appellant’s Miami office a theft of $95.00 in cash and $3,300.00 in jewelry. They presented a sworn proof of loss statement. Appellees were then informed that their Florida policy provides for a $500.00 limit on recovery per theft for unscheduled items of jewelry. The Sanderman’s previous policy issued by appellant in New Jersey provided for a $1,000.00 limit per item for unscheduled jewelry.

By deposition, appellees and Miss Noegel testified that appellees wanted the same coverage they had obtained in New Jersey at the time they applied for the Florida policy. Appellees testified that Miss Noe-gel was not certain she could obtain the $1,000.00 limit per item but indicated she would be able to get at least a $250.00 per item limit. Miss Noegel testified she could not recall her specific conversations with appellees regarding the coverage on unscheduled items of jewelry. However, she did testify that she did not mention a $250.00 per item limit because that would be a figure “out of the air.” Appellant contends that it does not write such a limit in any policies in this area. Miss Noegel also testified that appellant follows a policy whereby any material change which occurs in a policy provision is brought to the insured’s attention by placing a red and white sticker on the policy which reads, “This policy contains significant changes.” Appellees’ policy contains no sticker, and appellees testified they never read the fine print of their policy and did not learn of the $500.00 per theft limitation until after their jewelry was stolen.

Both parties moved for summary judgment, and following a hearing the trial court 'granted appellees summary judgment for $4,084.48, which includes interest, court costs and reasonable attorney’s fees, and excludes a $595.00 credit to appellant for a tender previously made by check to the appellees.

Appellant’s first point on appeal is that summary judgment was improper because a genuine issue of material fact existed as to whether or not the Sandermans were informed by the company or Miss Noegel of the $500.00 limit on unscheduled jewelry in their Florida policy. We do not feel that error has been demonstrated.

The insureds’ failure to read their policy in this case does not preclude them from claiming a conflict between the policy 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 insurance company if they did not accept it. Subsequently, the insured received his policy with the application attached and no indication that the requested coverage had been denied. We held in this situation that even though the insured had not read the policy, where the insured was not specifically informed by the company or its agent that the requested coverage had been denied and where reliance on the application would result in greater indemnity to the insured, then the application would determine the limits of the insured’s coverage.

In the cause sub judice, the appellees were not notified by the insurer, in accordance with company policy, of a material change in their Florida policy. Appellees’ application requested the same limit for unscheduled property on their Florida policy as previously existed on their New Jersey policy. . Thus, we conclude that appel-lees were not specifically informed by the company of coverage which was less than that appellees had requested.

Appellant also argues that summary judgment should not have been entered because the amount of damages was never proved. However, appellees did submit a sworn proof of loss form, and the record does not show that appellant ever seriously questioned either the theft or amount of loss incurred by appellees at any stage of the proceedings in the trial court. We do not think this point has been preserved for appeal. For this reason, appellant’s third point, that attorney’s fees were awarded prematurely, is without merit.

We have carefully considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated, the judgment appealed is affirmed.

Affirmed.


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Citator

Cited By

  • Burns v. Consol. Am. Ins. Co., 359 So. 2d 1203 (Fla. 3d DCA 1978)
    …d to provide it or to notify the insured that such coverage was excluded from the policy issued. Emmco Insurance Company v. Marshall Flying Service, Inc., 325 So. 2d 453 (Fla.2d DCA 1976). See also Liberty Mutual Fire Insurance Company v. Sanderman, 286 So. 2d 254 (Fla.3d DCA 1973); Durbin Paper Stock Company v. Watson-David Insurance Company, 167 So. 2d 34 (Fla.3d DCA 1964). If such a parol contract existed, the issue is not one of estoppel creating coverage, but one of estoppel to deny the existence of an…
  • Peninsular Life Ins. Co. v. Wade, 425 So. 2d 1181 (Fla. 2d DCA 1983)
    …., 359 So. 2d 1203 (Fla. 3d DCA 1978); Emmco Insurance Co. v. Marshall Flying Service, Inc., 325 So. 2d 453 (Fla. 2d DCA 1976); Monogram Products, Inc. v. Berkowitz, 392 So. 2d 1353 (Fla. 2d DCA 1980); Liberty Mutual Fire Insurance Co. v. Sanderman, 286 So. 2d 254 (Fla. 3d DCA 1973); Harr v. Allstate Insurance Co., 54 N.J. 287, 255 A. 2d 208 (1969); Dodge v. Aetna Casualty & Surety Co., 127 Vt. 409, 250 A. 2d 742 (1969); Hully v. Aluminum Co. of America, 143 F.Supp. 508 (S.D.Iowa 1956). See generally J. Apple…
  • Kramer v. United Servs. Auto. Ass'n, 436 So. 2d 935 (Fla. 4th DCA 1983)
    …einstate said complaint as to the latter Appellant. LETTS, C.J., and DOWNEY, J., concur. . Appellants concede that there is no cause of action stated on behalf of R. Kay Kramer. . In the case of Liberty Mutual Fire Insurance Company v. Sanderman, 286 So. 2d 254 (Fla. 3rd DCA 1973) the Court, while not mentioning either waiver or estoppel, clearly found the existence of coverage based on these doctrines. To the same effect see also Emmco Insurance Company v. Marshall Flying Service, Inc., 325 So. 2d 453 (Fl…

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