Johnson v. DawsonJohnson v. Dawson
This is an appeal from a final judgment entered in favor of American Bankers Insurance Company of Florida, appellee-garnishee, in a garnishment proceeding brought against it by appellant-Lloyd Emil Johnson, Sr., to collect a judgment in the amount of $25,000 which he recovered against appellee John Robert Dawson in a wrongful death action.1 Dawson was insured under a
The judgment creditor thereupon instituted garnishment proceeding against the insurance company for the collection of the judgment. The insurance company denied that it was liable for the judgment rendered against Dawson, its policy holder. It denied liability on grounds that Dawson‘s homeowners pоlicy did not provide coverage for Dawson‘s liability in the instant action because the accident occurred as a rеsult of business activity on the part of Dawson, and business activities were excluded under the policy. Mr. Johnson‘s son was killed when his car collided with a horse, which Dawson was in process of selling to a third person. Appellant did not secure an assignment from Dawson of any rights which he may have had under the policy. Cf. Nationwide Mutual Insurance Company v. McNulty, Fla. 1969, 229 So.2d 585, discharging cert. Fla.App. 1969, 221 So.2d 208.
The appeal presents two principal issues. First of all, whether a judgment crеditor has the standing, (in the absence of his securing an assignment from the insured of rights under the policy), against the judgment debtor‘s insurance cаrrier, which company is subject to a motion for a post-final judgment writ of garnishment. Second, assuming the judgment creditor has such standing, whether the doctrines of estoppel and waiver may be applied to create liability on the part of an insurance company for a loss falling outside the coverage provided in the insurance contract. The first question appears tо be one of first impression in Florida.
Appellant contends that the claim of non-coverage was waived or could not bе raised because of estoppel, based upon the continued defense of the tort action by the insurance company. He argues that the company was on notice of Dawson‘s business pursuit, and during the seventeen months of litigation never asserted non-coverage. He relies upon Bergh v. Canadian Universal Ins. Co., Fla. 1968, 216 So.2d 436 and Tiedtke v. Fidelity & Casualty Co. of New York, Fla. 1969, 222 So.2d 206.
First, we consider the issue of standing. While both the Bergh and Tiedtke cases, supra, cited by appellant lend some support for our conclusion that the judgment creditor does have standing to assert these doctrines in a garnishment proceeding, these cases are found to be factually distinguishable because they were actions brought by the insureds and concerned delayed notice or forfeiture rather than lack of coverage. The case relied upon by appellee, Midland National Insurance Company v. Watson, Fla.App. 1966, 188 So.2d 403, does tend to lead to а conclusion different from the one which we reach here. However, that case is also distinguishable on the grounds that it was deсided before Shingleton v. Bussey, Fla. 1969, 223 So.2d 713, 715 and Beta Eta House Corporation, Inc. of Tallahassee v. Gregory, Fla. 1970, 237 So.2d 163, 165.
Next, we consider the applicability of these doctrines and do so in the light of Florida cases and cases from other jurisdictions. We express the view that the rule to be applied is: Where an insurer
In conclusion, we have expressed the view that a judgment creditor has standing tо raise the issues of estoppel and waiver as to insurance coverage against the insurer of the judgment debtor. Howevеr, one possessing standing does not necessarily prevail upon the proper application of the legal principles he may assert.
Therefore, upon the authorities cited and for the reasons expressed, we affirm the final judgment entеred in the garnishment proceeding in favor of the garnishee insurance company.
Affirmed.