1 Respondents. 1. vs. AIU INSURANCE COMPANY, 1. Petitioner, BLOCK MARINA INVESTMENT, INC.,) d/b/a FLORIDA YACHT BASIN, 1 and NORFOLK MARINE COMPANY, )
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1 IN THE SUPREME COURT OF FLORIDA CASE NO. 7,264 DCA CASE NO AIU INSURANCE COMPANY, Petitioner, vs. BLOCK MARINA INVESTMENT, INC.,) d/b/ FLORIDA YACHT BASIN, nd NORFOLK MARINE COMPANY, ) Respondents. BRIEF OF RESPONDENT, BLOCK MARINA THORNTON, DAVID & MURRAY, P.A. By: Terry L. Redford Attorneys for BLOCK MARINA Suite S.W. 27th Avenue Mimi, FL (05) THORNTON, DAVID & MURRAY, P.A., ATTORNEYS AT LAW 2950 SOUTHWEST 277' AVENUE, SUITE 00. MIAMI, FLORIDA * TELEPHONE (05)
2 * TABLE OF CONTENTS PAGE TABLE OF CONTENTS TABLE OF AUTHORITIES..... STATEMENT OF THE CASE AND FACTS.... POINT INVOLVED ON APPEAL.... SUMMARY.... ARGUMENT.... i ii THE TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT AGAINST AIU FOR FAILURE TO COMPLY WITH SECTION (2), FLORIDA STATUTES (985) AND THE DISTRICT COURT PROPERLY AFFIRMED SUCH JUDGMENT. CONCLUSION..... CERTIFICATE OF SERVICE..... APPENDIX * SOUTHWEST 27TH AVENUE, SUITE 00, MIAMI, FLORIDA - TELEPHONE (05)
3 TABLE OF AUTHORITIES c CASES AIU Insurnce Compny v. Block Mrin Investment, Inc., 52 So.2d 8 (Fl. d DCA 987).... United Sttes Fidelity nd Gurnty Compny v. Americn Fire nd Indemnity Compny, 5 So.2d 624 (Fl. 5th DCA 987).... STATUTES PAGE 2 2, Section (2), Florid Sttutes (985)...., 2, 2950 SOUTHWEST 27TY AVENUE, SUITE 00. MIAMI, FLORIDA - TELEPHONE (05)
4 STATEMENT OF THE CASE AND FACTS Respondent, Block Mrin Investment, Inc., (Block) dopts Respondent, Norfolk Mrine Compny's (Norfolk) sttement of the cse nd fcts with the ddition of the following: On April 25, 986, Block filed declrtory judgment nd brech of contrct ction ginst Petitioner AIU Insurnce Compny, (AIU), to enforce coverge under n insurnce policy issued by AIU to Block. (R. -4). On July 25, 986, Norfolk moved to intervene s prty plintiff. (R. -4). The bsis for Norfolk's motion ws tht it hd secured consent judgment ginst Block for $25,000 in nother ction. In such consent Block hd ssigned ll its rights ginst AIU except for Block's clims ginst AIU for ttorney's' fees nd punitive dmges 0 nd, in return, Norfolk hd greed not to enforce the $25,000 consent judgment ginst Block. (R. 20-2). The tril court grnted Norfolk's motion to intervene s prty plintiff. (R. 24). On October 7, 986, Norfolk moved for summry judgment in fvor of itself nd Block on the ground tht AIU ws estopped to deny coverge under its policy. Norfolk climed AIU hd filed to comply with section (2), Florid Sttutes (985), of the Insurnce Code by filing to properly reserve its rights to coverge defense nd by filing to timely notify Block of its refusl to defend. (R. 47-5). The tril court entered finl summry judgment in fvor of Norfolk nd Block. It wrded $25,000 plus interest to Norfolk. It SOUTHWEST 27TH AVENUE, SUITE 00. MIAMI, FLORIDA - TELEPHONE (05)
5 further retined jurisdiction to tx costs nd ttorney's fees in fvor of Norfolk nd Block. (R ). AIU moved for rehering, which the tril court subsequently denied. (R. 6-64, 7). AIU then ppeled the finl summry judgment in fvor of Norfolk nd Block to the District Court of Appel of Florid, Third District. (R. 65). On ppel, AIU rgued inter li tht section , Florid Sttutes (985) did not pply to cse where there is no insurnce coverge for the loss climed due to n exemption in the policy for losses rising from bilment contrcts. AIU cited s uthority for such contention, United Sttes Fidelity nd Gurnty Compny v. Americn Fire nd Indemnity Co., 5 So.2d 624 (Fl. 5th DCA 987). (A. -). In United Sttes Fidelity nd Gurnty, the insured rgued the notice provisions of the sttute pplied lthough the policy term nd libility coverge hd terminted ten yers before ny clim ws mde. The court ruled the term 'Icoverge defense" under the sttute, did not pply becuse there ws complete lck of coverge in the first plce. (A. 4-8). The Third District Court of Appel ruled the instnt cse ws distinguishble from United Sttes Fidelitv nd Gurnty Compnv becuse here there ws policy in effect t the time of the loss nd legitimte question s to whether the policy provided coverge for the loss. The court explined, IIIn United Sttes Fidelity nd Gurnty Compnv the court held, essentilly tht there is no coverge issue where there is no policy. The question in this cse is whether the policy covers specific loss.8v AIU Insurnce Cornpw v. Block THORNTON, DAVID & MURRAY, P.A., ATTORNEYS AT LAW 2950 SOUTHWEST 27TH AVENUE, SUITE 00. MIAMI, FLORIDA * TELEPHONE (05)
6 Mrin Investment. Inc., 52 So.2d 8, 9 (Fl. d DCA 987). (A. -). The court in AIU Insurnce ComDny certified the decision s 88possibly88 being in conflict with United Sttes Fidelity nd Gurnty. A dissenting opinion indicted the sttute did not pply, citing s uthority United Sttes Fidelity nd Gurnty Compny v. Americn Fire nd Indemnity Compny. (A. -). AIU then brought the foregoing review before this Court. POINT INVOLVED ON APPEAL WHETHER THE TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT AGAINST AIU FOR FAILURE TO COMPLY WITH SECTION (2), FLORIDA STATUTES (985), AND THE DISTRICT COURT PROPERLY AFFIRMED SUCH JUDGMENT? SUMMARY Block dopts Norfolk's summry of the rgument. ARGUMENT ilu * THE TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT AGAINST AIU FOR FAILURE TO COMPLY WITH SECTION (2), FLORIDA STATUTES (985) AND THE DISTRICT COURT PROPERLY AFFIRMED SUCH JUDGMENT. Block dopts Norfolk's rgument on ppel. CONCLUSION 4 This Court should deny jurisdiction or in the lterntive, the opinion of the District Court ffirming the finl summry judgment in fvor of Norfolk nd Block should be pproved. - - Y THORNTON, DAVID & MURRAY, P.A., ATTORNEYS AT LAW 2950 SOUTHWEST 27TH AVENUE, SUITE 00, MIAMI, FLORIDA * TELEPHONE (05)
7 CERTIFICATE OF SERVICE 0 e WE HEREBY CERTIFY tht true nd correct copy of the foregoing ws miled this dy of December, 987 to: RICHARD A. SHERMAN, ESQ., Suite 02, Justice Building, 524 South Andrews Avenue, Ft. Luderdle, FL 0; MICHAEL D. SIKES, ESQ., Merritt, Sikes & Crig, P.A., Third Floor, McCormick Building, S.W. Third Street, Mimi, FL nd KENNETH CARUSELLO, ESQ., Pyton & Rchlin, P.A., Suite 80, New World Tower, 00 N. Biscyne Boulevrd, Mimi, FL 2. THORNTON, DAVID L MURRAY, P.A. Attorneys for BLOCK MARINA Suite S.W. 27th Avenue Mimi, FL (05) rl By: T@RY L. REDFORd SOUTHWEST 27TH AVENUE, SUITE 00. MIAMI, FLORIDA * TELEPHONE (05)
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