TRAVELERS INDEMNITY COMPANY, A CORPORATION DOING BUSINESS IN FLORIDA, APPELLANT,
v.
KENNETH PARKMAN AND JEANETTE PARKMAN, APPELLEES
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An insurer electing to repair a damaged vehicle is bound to complete repairs within a reasonable time, and failure to do so allows the insured to recover damages for loss of use.
[1] An insurer's election to repair a damaged vehicle creates a new contract obligating the insurer to restore the vehicle within a reasonable time.
[2] An insured may recover damages for loss of use of an automobile proximately caused by an insurer's failure to repair the vehicle within a reasonable time, when the insure…
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Join FLexlaw to unlock all legal intelligenceThe insured's automobile was damaged in an accident, and the insurer directed the insured to a repair shop. The insurer initially refused to pay for r…
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DOWNEY, Judge.
This case involves the right of an insured to recover damages under the collision coverage portions of his automobile policy for the insurer’s breach of contract. Specifically, the insured (appellees) claimed damages for loss of use of their automobile arising out of an alleged breach of contract by the insurer in not repairing the insureds’ automobile within a reasonable time.
Appellant, Travelers Indemnity Company, issued a comprehensive automobile insurance policy to appellees. The policy included collision protection. Appellees notified appellant of an accident damaging the insured automobile. Appellant inquired where appellees usually had the car serviced, and upon being advised of the name of the company, appellant instructed appel-lees to go ahead and have the vehicle repaired there. When the repairs were completed appellant refused to pay for them, appellant taking the position that the insurance policy was not in effect at the time of the accident. The repair company refused to deliver possession of the automobile until it received payment. Thus, the vehicle remained at the repair shop for approximately 14 months from the date of the accident.
A judicial declaration was ultimately obtained holding that the policy was in effect at the time of the accident. Thereafter, appellant paid appellees on their claims arising under the uninsured motorist, medical payments, and property damage provisions of the policy; but it refused to-pay appellees’ claim for loss of use during the 14 months the car remained in the possession of the repair company.
The basis of appellant’s refusal to pay the loss of use claim and the essence of its point on appeal is that absent a provision in the policy providing coverage for loss of use, such consequential damage is not recoverable in a suit, such as this, for breach of contract.
It is well established that in actions sounding in tort one may recover damages for loss of use of personal property as an element of damages proximately flowing from the wrong. Airtech Service, Inc., v. MacDonald Construction Co., Fla. App.1963, ISO So. 2d 465. Restatement of Torts, § 928 (1939). However, in actions sounding in contract, generally the damages recoverable are limited to those which are the natural and proximate result of the breach, or such as may reasonably be supposed to have been within the contemplation of the parties at the time they made the contract. 9A Fla.Jur., Damages, §§ 27, 32. Thus, where the insurance contract provides that in the event of loss caused by collision the insurer has the option to pay for the loss in money, or repair or replace the damaged property, the insured is not entitled to recover for the loss of use of the vehicle if the insurer pays in money or repairs the damage within a reasonable time. But when the insurer makes its election to repair, that election is binding upon the insured and creates a new contract under which the insurer is bound to restore the vehicle within a reasonable time. 6 Appleman, Insurance Law & Practice, § 4005, p. 721. Thus, in accordance with the new contract:
“where an automobile insurer elects to repair the damaged automobile rather than pay its reasonable value, the insured 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 fulfilled until the insurer has paid the cost of repair, less any deduction provided in the policy, or has placed the insured in possession of the repaired automobile. Owens v. Pyeatt, supra; Eisenberg v. Motors Insurance Corp., 62 Misc.2d 1, 307 N.Y.S.2d 922 (1970).
The trial court properly instructed the jury that if they found from the evidence that appellant selected the repair company to do the repair work and directed appellees to take the vehicle to the repair company and as a result appellees were deprived of their vehicle for an unreasonable length of time their verdict should be for appellees. The jury decided those issues in favor of appellees and returned a verdict for $1700.00, giving rise to the judgment appealed from.
Appellant has failed to demonstrate error. Accordingly, the judgment appealed from is affirmed.
WALDEN and CROSS, JJ., concur.
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MCI Worldcom Network Servs., Inc. v. Mastec, Inc., 995 So. 2d 221 (Fla. 2008)…68 (Fla. 5th DCA 1990), cited with approval in, Fla. Drum Co. v. Thompson, 668 So. 2d 192 (Fla.1996) (Florida appellate courts follow the Restatement (Second) of Torts section 928 when assessing loss-of-use damages); Travelers Indem. Co. v. Parkman, 300 So. 2d 284, 285 (Fla. 4th DCA 1974) (same); Meakin v. Dreier, 209 So. 2d 252, 253-54 (Fla. 2d DCA 1968) (same); Airtech Serv., Inc. v. MacDonald Constr. Co., 150 So. 2d 465, 466 (Fla. 3d DCA 1963) (same); McMinis v. Phillips, 351 So. 2d 1141, 1141 (Fla. 1st DC…
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Md. Cas. Co. v. Fla. Produce Distribs., Inc., 498 So. 2d 1383 (Fla. 5th DCA 1986)…e damaged property.” Where, under a similar option in a similar insurance policy, an insurer elected and undertook to make repairs to damaged property and did not do so within a reasonable time it was held, in Travelers Indemnity Company v. Parkman, 300 So. 2d 284 (Fla. 4th DCA 1974), that the insurer could be liable for damages for loss of use of the insured property beyond a reasonable time for making the necessary repairs. However, the insurer in this case did not elect to make repairs or to replace the da…
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William and Delia Drew v. Mobile USA Ins. Co., 920 So. 2d 832 (Fla. 4th DCA 2006)…d remediation and whether the additional mold discovered by the Drews’ consultant was from certain walls not included in the original repair areas. [*835] We feel it necessary to also address, the applicability of Travelers Indemnity Co. v. Parkman, 300 So. 2d 284 (Fla. 4th DCA 1974), and Arch Roberts & Co. v. Auto-Owners Insurance Co., 305 So. 2d 882 (Fla. 1st DCA 1974), to the issue of whether Mobile USA can be liable for damages above its policy limits flowing from a breach of its contract to repair. While…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coleman v. Am. Bankers Ins. Co. OF Fla., 228 So. 2d 410 (Fla. 3d DCA 1969)