HERBERT BUCHWALD, APPELLANT,
v.
HARTFORD ACCIDENT AND INDEMNITY COMPANY AND TRAVELERS INDEMNITY COMPANY, BOTH FOREIGN COMPANIES AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, APPELLEES
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Herbert Buchwald brought a declaratory action against two insurance companies claiming they owed him a duty to defend a suit filed against him. The trial court granted summary judgment for both insurers, holding that under Consolidated Mutual Insurance Co. v. Ivy Liquors, Inc., an insurer has no duty to defend when the underlying suit is based solely on willful assault and battery, an intentional tort excluded from coverage.
The court held that an insurer has no duty to defend when the underlying suit is based exclusively on intentional torts such as willful assault and battery that are excluded from the policy. The rule established in Consolidated Mutual Insurance Co. v. Ivy Liquors, Inc. is applicable and bars Buchwald's claims.
[1] An insurer has no duty to defend a suit alleging only intentional torts if the insurance policy excludes coverage for intentional torts.
[2] Summary judgment is appropriate when the undisputed facts establish that a claim is barred by governing law.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There being no allegation in the declaratory suit that the original plaintiff in the damage suit ever claimed damages for anything other than willful assault and battery, we conclude that the trial judge correctly determined that there was no issue to be tried and decided the cause according to the governing law.”
The court's holding that summary judgment was proper because the underlying suit involved only intentional torts excluded from coverage, leaving no genuine issue for trial.
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Join FLexlaw to unlock all legal intelligenceBuchwald filed a declaratory action against Hartford Accident and Indemnity Company and Travelers Indemnity Company seeking a declaration that they ow…
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PER CURIAM.
These appeals are by the plaintiff, Herbert Buchwald, who brought a declaratory action against two insurance companies claiming that each owed him a duty to defend a suit which had been filed against ljim. Separate judgments denying Buchwald’s claim were entered against him in favor of the two insurance companies, Hartford Accident and Indemnity Company and Travelers Indemnity Company. The plaintiff filed an appeal from each judgment and the appeals were consolidated for all appellate purposes.
The judgments were entered upon defendants’ motions for summary judgment, the trial judge holding that each suit was barred by the rule stated in Consolidated Mutual Insurance Company v. Ivy Liquors, Inc., Fla.App.1966, 185 So. 2d 187.1
Appellant’s principal argument is that the cited case is not applicable. We hold that it is. See also Tennessee Corporation v. Lamb Brothers Construction Company, Fla.App.1972, 265 So. 2d 533 and C. A. Fielland, Inc. v. Fidelity & Casualty Company of New York, Fla.App.1974, 297 So. 2d 122. But see St. Paul Fire and Marine Insurance Company v. Icard, Merrill, Cullis and Timm, Fla.App.1967, 196 So. 2d 219. There being no allegation in the declaratory suit that the original plaintiff in the damage suit ever claimed damages for anything other than willful assault and battery, we conclude that the trial judge correctly determined that there was no issue to be tried and decided the cause according to the governing law.
Affirmed.
HENDRY, J., dissents.
. * * *
“2. The court finds that on the authority of Consolidated Mutual Insurance Co. v. Ivy Liquors, Inc., 185 So. 2d 187 (Fla.App., 3d, 1966), the Defendant, TRAVELERS INDEMNITY CO. is entitled to a summary judgment as a matter of law on the undisputed facts.
“3. The court finds that the original suit of Samuels v. Buchwald was for the intentional tort of assault and battery, and the policy issued by the Defendant, TRAVELERS INDEMNITY CO. to Herbert Buchwald did not provide coverage for intentional torts. That being the case, TRAVELERS INDEMNITY CO. was not required to defend the action nor to pay any claim resulting therefrom.”
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Hartford Fire Ins. Co. & St. Paul Fire & Marine Ins. Co. v. Spreen, 343 So. 2d 649 (Fla. 3d DCA 1977)…Inc. 185 So. 2d 187 (Fla.3d D.C.A. 1966). See also State Farm & Casualty Co. v. Saurazas, 334 So. 2d 180 (Fla.4th D.C.A. 1976); Capoferri v. Allstate Insurance Co., 322 So. 2d 625 (Fla.3d D.C.A.1975); Buchwald v. Hartford Accident and Indemnity Co., 319 So. 2d 164 (Fla.3d D.C.A.1975). In the instant case, the insured Donald Spreen committed an assault and battery upon William King. He reacted to deliberately hit King for a crude and insulting remark about his wife. In no sense, can this assault and battery b…
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Commercial Union Ins. Co. v. The R.H. Barto Co., 440 So. 2d 383 (Fla. 4th DCA 1983)…omplaint filed by a third party against the insured. Klaesen Brothers v. Harbor Insurance Co., 410 So. 2d 611 (Fla. 4th DCA 1982); Auto-Owners Insurance Co. v. Jones, 397 So. 2d 317 (Fla. 4th DCA 1981); Buchwald v. Hartford Accident & Indemnity Co., 319 So. 2d 164 (Fla. 3d DCA 1975). Even though some of the claims made by the third party are not within the coverage, the insurer has the duty to defend as long as any of the claims made are covered by the policy. 31 Fla.Jur.2d Insurance § 822. It therefore is ne…
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Mr. Andrew Perkins v. Allstate Ins. Co., 343 So. 2d 662 (Fla. 3d DCA 1977)…[*663] PER CURIAM. Affirmed on the authority of Buchwald v. Hartford Accident and Indemnity Company, 319 So. 2d 164 (Fla. 3d DCA 1975). See also Kraus v. Allstate Insurance Company, 379 F. 2d 443 (3d Cir. 1967), and compare Hartford Fire Insurance Co. v. Spreen, 343 So. 2d 649 (Fla. 3d DCA 1977).…
Authorities Cited
- C. A. Fielland, Inc. v. Fid. & Cas. Co. OF NEW York, 297 So. 2d 122 (Fla. 2d DCA 1974)
- Consol. Mut. Ins. Co. v. IVY Liquors, Inc., 185 So. 2d 187 (Fla. 3d DCA 1966)
- ST. Paul Fire & Marine Ins. Co. v. Icard, Merrill, Cullis & Timm, P. A., 196 So. 2d 219 (Fla. 2d DCA 1967)
- Tenn. Corp. & Hartford Accident & Indem. Co. v. Lamb Bros. Constr. Co., Inc., 265 So. 2d 533 (Fla. 2d DCA 1972)