EMMCO INSURANCE COMPANY, A CORPORATION, APPELLANT,
v.
MARSHALL FLYING SERVICE, INC., APPELLEE
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Emmco Insurance Company appeals a summary judgment awarding coverage for chemical damage to Marshall Flying Service, a crop dusting company, under an insurance policy that expressly excluded such coverage. The court held Emmco liable for the agent's failure to disclose the exclusion when the insured had requested chemical damage coverage, but reversed in part to allow Emmco to assert a set-off for premium differences.
The court held that if a proper application for chemical damage coverage was made to a proper agent of Emmco and the agent knew or should have known of the request, then Emmco is responsible for chemical damage coverage when its agent failed to provide such coverage or failed to notify the insured that the policy excluded it. However, Emmco should have been allowed to assert a set-off for the difference between premiums actually charged and those that would have been charged for the additional coverage.
[1] An insurer may be responsible for coverage excluded by a policy's terms if the insured properly requested such coverage from the insurer's agent, and the agent knew or sh…
[2] Summary judgment is improper if a party has not had a procedural opportunity to assert a set-off claim.
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“as a matter of law, Emmco was responsible for chemical damage coverage if its agent failed to provide such coverage or failed to notify the Flying Service that the policy which in fact issued excluded such coverage”
Establishes the court's holding on Emmco's liability based on agent conduct regarding coverage disclosure
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Join FLexlaw to unlock all legal intelligenceMarshall Flying Service applied for insurance from Emmco that expressly requested chemical damage coverage. Emmco issued a policy providing only hull …
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McNULTY, Chief Judge.
Appellee Marshall Flying Service, Inc., a crop dusting company, is a defendant in this pending action for damages alleging wrongful destruction of property by chemical spray. Appellant Emmco Insurance Company issued a policy to appellee Flying Service which afforded only hull insurance on the latter’s airplanes together with general liability coverage. The Flying Service’s application for insurance had expressly requested chemical damage coverage, but unbeknown to it such coverage was excluded by the terms of the policy. The Flying Service nevertheless called upon Emmco to respond for such coverage.
Appellant Emmco thereupon intervened in the main action requesting a declaratory judgment as to its obligation under the policy with respect to the plaintiff’s claim for chemical damage. The trial court ultimately granted summary judgment in favor of the Flying Service and this appeal ensued.
The question of coverage turned on: (1) whether a proper application was made by appellee Flying Service for such chemical coverage to a proper agent of appellant Emmco and (2), if so, whether such agent knew or should have known of such request. Given affirmative answers, the court then concluded that, as a matter of law, Emmco was responsible for chemical damage coverage if its agent failed to provide such coverage or failed to notify the Flying Service that the policy which in fact issued excluded such coverage.1 He found that there were no material issues as to the two operative facts and that therefore summary judgment for the Flying Service was proper. Upon a careful review of the record we have concluded that on this point appellant has not made error clearly to appear. We therefore, as to that, affirm.
We note here that the summary judgment was entered before appellant had an opportunity under procedural rules to assert a set-off for the difference between the premiums actually charged for the limited coverage given and those which would have been chargeable had the additional coverage for chemical damage claims been given. We think this was improper and that appellant should have an opportunity to avail itself of this set-off. Accordingly, with respect to that aspect of the summary judgment, and insofar as it precludes appellant from asserting such set-off, it should be reversed for further proceedings not inconsistent herewith.
Affirmed in part, reversed in part.
BOARDMAN and SCHEB, JJ., concur. . Concerning an insured’s failure to read Ms own policy, see Liberty Mutual Fire Insurance Co. v. Sanderman (Fla.App. 3d, 1973), 286 So. 2d 254, in wMcli it was held not to be fatal, given affirmative answers to the criteria set forth in the body hereof.
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Burns v. Consol. Am. Ins. Co., 359 So. 2d 1203 (Fla. 3d DCA 1978)…ts. An insurer may be liable for coverage not included in a written contract if its agent failed 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 i…
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Peninsular Life Ins. Co. v. Wade, 425 So. 2d 1181 (Fla. 2d DCA 1983)…d a loss before learning that the policy actually issued did not provide coverage for the loss in question. E.g., Burns v. Consolidated American Insurance Co., 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…
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Kramer v. United Servs. Auto. Ass'n, 436 So. 2d 935 (Fla. 4th DCA 1983)…an, 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 (Fla. 2d DCA 1976). See also Cigarette Racing Team Inc. v. Parliament Insurance Co., 395 So. 2d 1238 (Fla. 4th DCA 1981) where the Court, while recognizing the general rule, noted an exception where the carrier assumes the defense of an action with…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Liberty Mut. Fire Ins. Co. v. Sanderman, 286 So. 2d 254 (Fla. 3d DCA 1973)