FEDERAL INSURANCE COMPANY, A CORPORATION, APPELLANT,
v.
W. G. MCNICHOLS, APPELLEE

Fla. | 1955-01-21
MATHEWS, C. J., and SEBRING and ROBERTS, JJ., concur.
77 So. 2d 454 Florida Supreme Court (1955) Positive Treatment
Cited by 13 cases

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Synopsis

Federal Insurance Company appealed a garnishment judgment against it as the insurer of a commercial pilot. The Florida Supreme Court reversed, holding that the insurance policy's exclusion clause for damage caused by chemicals or dusting powder barred coverage for injuries to the plaintiff's tropical fish caused by DDT spraying performed outside the scope of the contract.


Holding

The insurance policy did not provide coverage for the damage caused by DDT spraying because the exclusion clause for damage caused by chemicals or dusting powder clearly and unambiguously excluded such claims, and the policy language was sufficiently plain to require no strict construction against the insurer.


Key Quotes

“The insurance afforded by this policy shall not apply with respect to any injury or damage to persons or property when such injury or damage is caused directly or indirectly by chemicals or dusting powder.”

The exclusion clause that the court determined clearly barred coverage for the DDT-related damage.

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Facts & Procedural History

R. B. Rocker, a commercial pilot operating a crop-dusting service, contracted with Hillsborough County Health Department to spray DDT for mosquito con…

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Opinion of the Court
TERRELL, Justice.

TERRELL, Justice.

W. G. McNichols, appellee, secured a final judgment in an action for damages against R. B. Rocker, doing business as Rocker Flying Service. Writ of execution was issued from said judgment and returned nulla bona. McNichols tendered his affidavit as required by statute and writ of garnishment was directed to United States Guarantee Corporation, the insurance carrier for Rocker. The garnishee answered and traverse was entered, presenting the issues. At final hearing judgment was entered against the garnishee, appellant, from which this appeal was prosecuted.

It is agreed that the point for determination is whether or not the damage sustained by the plaintiff, alleged to have been caused by the negligence of the insured, was of the character protected by the terms of the insurance policy.

Rocker was engaged in the business of commercial flying, a portion of which was crop dusting. He entered into a contract with the Health Department of Hillsbor-ough County to do some airplane spraying in furtherance of its mosquito control program. Under this contract the Health Department furnished a solution for spraying known as “DDT” and Rocker agreed to spray only such areas as were designated by the Health Department. Rocker sprayed the “DDT” on pools owned by McNichols in areas beyond those designated by the Health Department and killed McNichols’ tropical fish, for which he secured the judgment heretofore referred to.

The policy in question insures damages for personal injury and property damage caused by negligence of the insured while engaged in commercial flying, but contained the following exceptions:

“The insurance afforded by this policy shall not apply with respect to any injury or damage to persons or property when such injury or damage is caused directly or indirectly by chemicals or dusting powder.”

We have examined the policy as a whole and cannot escape the conclusion that it does not protect against injury caused from “DDT”. McNichols appears to have suffered damage in the loss of his tropical fish but his loss was one not covered by the policy. The damage, in other words, was one embraced within the exclusion clause.

In this holding we do not overlook the contention of appellee as to Paragraph II, Page 2, Paragraph III, Page 2, and other provisions of the policy but these are followed by the quoted exclusion provision which was designed for no purpose but to eliminate damage caused from spraying with “chemicals” which includes “DDT”, particularly in areas where the pilot was directed not to spray.

We are aware of the general rule that if uncertainty is present in a policy it should be construed against the insurer. Here, however, the language in the policy is sufficiently plain and unambiguous and therefore there is no occasion to apply this strict rule of construction. Rigel v. National Casualty Company, Fla., 76 So. 2d 285.

The judgment appealed from is accordingly reversed with directions to enter judgment in favor of the garnishee.

Reversed with directions.

MATHEWS, C. J., and SEBRING and ROBERTS, JJ., concur.


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  • …most beyond comprehension how anyone would seriously argue that such a pesticide is not an ‘irritant, contaminant or pollutant.’ ”); Hudson Ins. Co. v. Double D Management Co., 768 F.Supp. 1542 (M.D.Fla.1991); see Federal Insurance Co. v. McNichols, 77 So. 2d 454 (Fla.1955) (upholding policy exclusion for damage caused “by chemicals or dusting powder” in claim for damage resulting from aerial spray of DDT). We approve the decision of the court below in both cases. It is so ordered. KOGAN, C.J., and SHAW,…
  • Oliver v. United States Fid. & Guar. Co., 309 So. 2d 237 (Fla. 2d DCA 1975)
    …des the most coverage. See Government Employees Ins. Co. v. Sweet, Fla.App.4th, 1966, 186 So. 2d 95. It is a well-settled axiom that ambiguities in an insurance policy are to be construed against the insurer. Federal Ins. Co. v. McNichols, Fla.1955, 77 So. 2d 454. [*239] The terms and provisions of the policy in question were drafted and selected by United, not Oliver or this court. Had United so intended, Valet could have been named as. the only insured under the policy, in which event there would not have…
  • Stinchomb v. Mut. Life Ins. Co. of N.Y., 305 So. 2d 84 (Fla. 2d DCA 1974)
    …the language in an insurance policy is sufficiently plain and unambiguous, there is no occasion to apply the rule of construction which requires ambiguities to be construed against the insurer. Federal Insurance Company v. W. G. McNichols, Fla.1955, 77 So. 2d 454. The language of this policy clearly dictates the result obtained in the lower court. We cannot blame appellant and his doctor for having delayed the amputation in the vain hope that the leg might be saved. Unfortunately, the policy did not provide…

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