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Thomas v. Western World Ins. Co.

Court of Appeal of Florida, Second District

March 23, 1977

No. 76-197

Opinion

 [*1300]  The issue in this appeal is whether appellants who are insureds are entitled to seek recovery against their liability carrier for an amount in excess of the policy limits where their insurance carrier has wrongfully refused to defend a negligence action against them. The trial court answered the question in the negative and entered summary judgment in favor of the appellee insurer. We reverse.

It is undisputed that at the time material herein, appellants Willie and Annie Thomas owned and were doing business as Bon's Laundry # 1. Their liability for personal injuries was insured by appellee Western World Insurance Company for a limit of $5,000 for a single injury. In September 1973, one Michael Hancock was injured on appellants' business premises when appellants' agent, Kenny, who was in sole charge of their premises, allegedly threw acid on him. Hancock [**2]  filed suit against the Thomases on November 26, 1973, and process was served on appellants on November 27, 1973.

Three days after being served with process, appellant Willie Thomas went to the carrier's local agent to make a loss report which the agent reduced to writing saying, in material part, "Kids banging on doors using abusive language. Said they were going to break in and take money. Kenny chased them out and threw sulphuric acid on one kid. Kenny said the same boys had been there before bugging him." The written report was thereupon, that same day, forwarded to the appellee carrier's home office together with - and this is significant - a copy of the summons and complaint filed in the case of Hancock v. Thomas, et al. 

The significance of the forwarding to the carrier of Hancock's pleading is that Hancock's suit sounded in simple negligence, and no punitive damages were sought. Nevertheless, though chargeable with notice of this fact, the carrier's vice president of claims sent the Thomases a letter by certified mail on December 13, 1973, notifying them that the policy "does not cover the occurrence" and "that this policy excludes claims arising out of assault and [**3]  battery." This notice was delivered on December 17, 1973, the twentieth day following service of the complaint upon appellants and the day on or before which appellants were required to respond to Hancock's complaint against them.

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343 So. 2d 1298 *; 1977 Fla. App. LEXIS 15283 **

WILLIE THOMAS and ANNIE THOMAS, his wife, d/b/a BON'S LAUNDRY # I, Appellants, v. WESTERN WORLD INSURANCE COMPANY, a Florida corporation, Appellee

Subsequent History:  [**1]  Rehearing Denied April 21, 1977.

CORE TERMS

carrier, settlement, coverage, prerequisite

Insurance Law, Business Insurance, Commercial General Liability Insurance, Duty to Defend, Liability & Performance Standards, Bad Faith & Extracontractual Liability, General Overview, Refusals to Defend, Civil Procedure, Pretrial Judgments, Default & Default Judgments, Default Judgments, Judgments, Contracts Law, Remedies, Damages, Avoidable Consequences, Damages, Defenses, Ambiguities & Mistakes