National Surety Corp. v. White Construction Co.

206 So. 2d 220 | Fla. Dist. Ct. App. | 1968

JOHNSON, Judge.

This is an appeal from an order of the Circuit Court of Duval County, dismissing with prejudice plaintiff’s second Amended Complaint for Declaratory Decree.

Appellant was the insurance carrier for the appellee-White Construction Company, Incorporated, under a policy that provided inter alia, for notice of an accident be given as soon as practicable. An accident occurred between two motorists on a piece of highway which was under repair or construction by White Construction Company. None of White’s vehicles were involved in the accident. No notice of the accident was given by appellee until suit was filed against appellee by parties involved in the accident. Notice was then immediately given by appellee-White to appellant. Thereupon, appellant filed its complaint for declaratory decree, praying the court to construe its rights, obligations and liabilities in the light of the facts alleged, but complaining primarily that the notice of the accident was not timely given.

This court had before it a similar question in the case of Johnson v. Travelers Indemnity Company,¹ which involved the question of whether notice was timely given. This court determined and so held, in said case, that question of sufficiency of the notice was a factual question and was not within the purview of our Declaratory Judgment Statute being F.S.1963, Chapter 87, F.S.A. Certiorari was denied by the Florida Supreme Court.

This case presents, in our opinion, and we so hold, a factual situation, also, and therefore, under the authority of Johnson v. Travelers Indemnity Company, supra, the order appealed from is hereby Affirmed.

CARROLL, DONALD K., Acting Chief Judge, and RAWLS, J., concur.

1 . Johnson v. Travelers Indemnity Company, 191 So.2d 61 (Fla.App.1st, 1966).