APPALACHIAN INSURANCE COMPANY, an Insurance Company Authorized to Do Business in the State of Florida, Appellant, v. UNITED POSTAL SAVINGS ASSOCIATION, a Missouri Corporation, Appellee.
No. 81-1296
District Court of Appeal of Florida, Third District
October 26, 1982
Rehearing Denied December 16, 1982
422 So. 2d 332
DANIEL S. PEARSON, Judge
Herbert A. Warren, Miami, Sibley, Giblin, Levenson & Glasser, Miami Beach, for appellee.
Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
DANIEL S. PEARSON, Judge.
United Postal Savings Association sued Appalachian Insurance Company, its property insurer, to recover more than a quarter of a million dollars plus interest, costs and attorneys’ fees for damages to United Postal‘s shopping center arising from vandalism and theft. The insured alleged that the vandalism and theft occurred in the approximate four-month period between April 1 and August 3, 1978. The policy of insurance issued by Appalachian provided that United Postal was not entitled to recover under the policy unless its damages from a theft or an act of vandalism exceeded the deductible amount of $1,000. The trial court instructed the jury that it was the insured‘s burden to establish that any claim exceeding $1,000 was attributable to a single occurrence of theft or vandalism. The jury, apparently finding, as most certainly the evidence would have permitted it to do, that no single act of theft or vandalism caused a loss in excess of $1,000, returned a verdict for Appalachian. Deciding that its instruction erroneously placed the burden on the insured rather than the insurer, the trial court granted United Postal‘s motion for new trial. The insurance company appeals.
Initially, if the trial court‘s instruction to the jury was correct in the first instance, the grant of a new trial, based only on the perceived impropriety of the instruction, was error. We need not indulge, or defer to, the trial court‘s superior vantage point where all that is at stake is the propriety of a legal ruling, and the appellant need make no special showing to overturn the new trial
The insured, primarily relying on Phoenix Insurance Co. v. Branch, 234 So. 2d 396 (Fla. 4th DCA 1970), and Jewelers Mutual Insurance Co. v. Balogh, 272 F.2d 889 (5th Cir. 1959), says that the burden was the insurer‘s, the jury instruction was incorrect, and the new trial was properly granted. However, the concern of both Phoenix and Jewelers Mutual was whether the insured had the burden to negative exceptions to an all-risk policy, or the insurer had the burden to bring itself within an exception. The rationale for placing this particular burden on the insurer was explained in Jewelers Mutual:
“If the insurer‘s contention is sound, then as a condition precedent to liability, the assured would have to establish by a preponderance the negative of each of these manifold exceptions. Were he required to exhaust the gamut of these provisions what had been purchased and sold as all risks insurance would turn out to be something else. Instead of the policy affording coverage against all causes of damage except those specifically excluded, it would amount only to a named perils cover since the assured to negative the exception would have to establish for this case an actual theft or some other such event not specifically excluded.” 272 F.2d at 892.
In our view, this rationale is applicable only where what is at issue is the risk insured against in an all-risk policy. Where, as here, the issue is not the risk, but the application of a deductible, then the fact that the instant policy happens to be an all-risk policy is totally immaterial.
The question, then, is where the insurer does not contend that the loss arose from a cause that is excepted from the policy, and indeed, as here, concedes that the type of loss is covered, whose burden is it to show that the loss exceeds the deductible amount? We believe this court answered this question in U.S. Liability Insurance Company v. Bove, 347 So. 2d 678 (Fla. 3d DCA 1977). In Bove, the insured claimed a loss due to theft of jewelry to the policy limits of $16,000. The policy contained a further provision that the insurer shall not be liable for such a loss “in any one occurrence” for more than $500. The trial court placed the burden on the insurance company to show that the loss was attributable to one occurrence. Finding that the insurer failed to satisfy the burden, the trial court entered judgment for the insured. This court reversed. While acknowledging the correctness of the rule of Phoenix Insurance Co. v. Branch, supra,2 that “the burden is on the insurer to establish that the loss arose from a cause that is excepted from the policy,” the court distinguished the issue in Phoenix from the one under consideration:
“There is no dispute between the parties that the theft is covered by the policy and defendant is not contending that plaintiff‘s loss arose from a cause that is excepted from the policy. The phrase ‘in any one occurrence’ sets no limit to the number of losses which the insured may claim, but merely sets a limitation on the coverage as to each loss. Thus, the plaintiff had the burden of proving more than a single theft occurred on April 4.” U.S. Liability Insurance Company v. Bove, 347 So. 2d at 680.
Similarly, where, as here, recovery under the policy is limited to a loss from a single occurrence of theft or vandalism resulting in excess of $1,000 in damages, it is the insured‘s burden to prove that any single
Accordingly, we reverse the order granting a new trial and remand the cause with directions to reinstate the jury verdict in favor of Appalachian and enter judgment thereon.
APPALACHIAN INSURANCE COMPANY, an Insurance Company Authorized to Do Business in the State of Florida, Appellant, v. UNITED POSTAL SAVINGS ASSOCIATION, a Missouri Corporation, Appellee.
No. 81-1296
District Court of Appeal of Florida, Third District
October 26, 1982
BASKIN, Judge (dissenting).
In its Order Granting New Trial, the trial court stated as its reasons:
THIS CAUSE is before the Court upon the Plaintiff‘s Motion for New Trial, as amended. The Court has carefully reviewed the Motion and the legal memoranda submitted by the parties and has reviewed the Court‘s charge to the jury. The Court finds that it was in error in refusing Plaintiff‘s request that the jury be instructed that the burden of proof is upon the Defendant to prove to what extent its liability is reduced by virtue of the application of the deductible clause under the policy of insurance issued by the Defendant. The Court further finds that the Court was in error in instructing the jury that the burden of proof is solely on the Plaintiff to prove its claim by the greater weight of the evidence. The Court further finds that the jury was misled or confused and that the Plaintiff did not receive a fair trial by virtue of such erroneous instructions. Therefore, in the exercise of this Court‘s discretion, and in accordance with the law as set forth in Castlewood International Corporation v. LaFleur, 322 So. 2d 520 (3d DCA 1975) [sic]; Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959).... .
A trial judge acts within his wide discretion in granting a new trial when he believes his instructions to the jury were incorrect. Martinique Hotel v. Taylor, 139 So. 2d 916 (Fla. 3d DCA 1962). The granting of a new trial can be overturned only by a showing of a clear abuse of discretion. Castlewood International Corp. v. LaFleur, 322 So. 2d 520 (Fla. 1975).
It is clear that, under an all-risks policy, an insured must prove a loss within the terms of the policy. The insurer must then prove an exception to the loss. Phoenix Insurance Co. v. Branch, 234 So. 2d 396 (Fla. 4th DCA 1970). Concerning the appropriate burdens of proof, the court, in Jewelers Mutual Insurance Co. v. Balogh, 272 F.2d 889 (5th Cir. 1959), stated:
There was a loss, and it was established by positive evidence. The assured did not have to go further to demonstrate that such loss was not caused by one of the excepted conditions. To escape the broad undertaking of this comprehensive cover, the insurer had the burden of establishing that. (citation omitted).
Id. at 892. That principle applies to these proceedings. See 31 Fla.Jur.2d, Insurance § 996 (1981).
While technically a deductibility clause may not be an exception to insurance coverage or an exclusion therefrom, inasmuch as it too functions as a limitation on the liability of the insurer, it must be treated the same as other limitations. (citations omitted).
I would affirm.