Opinion
No. 71-1292.
April 11, 1972. Rehearing Denied May 2, 1972.
Appeal from the Circuit Court for Dade County, Henry L. Balaban, J.
Knight, Peters, Hoeveler, Pickle, Niemoeller Flynn, Miami, for appellant.
Fuller, Brumer, Moss Cohen, Podhurst, Orseck Parks, Miami, for appellees.
Before BARKDULL, C.J., and PEARSON and CHARLES CARROLL, JJ.
This is an interlocutory appeal by the defendant in an action for damages for personal injuries resulting from an automobile accident.
The complaint alleged the injured plaintiff Jennie Bell West was a passenger in an automobile involved in a collision with a 1963 Dodge automobile owned by the defendant Francisco Horacio Quintero and driven by the defendant Horacio Quintero. The appellant-defendant Auto Owners Insurance Company was the insurer of the defendant automobile owner. The insurer answered denying coverage of the Dodge automobile.
On the question relating to insurance coverage both the insurer and the plaintiffs moved for summary judgment. The court denied the insurer's motion and granted that of the plaintiff, and entered summary judgment against the insurer on the question of its coverage liability. The insurer appealed.
The summary judgment determining there was coverage, where the defendant insurance company had denied coverage, was subject to interlocutory appeal under Rule 4.2(a) FAR, 32 F.S.A., as a partial summary judgment on liability. See Travelers Insurance Company v. Wilson, Fla. App. 1972, 261 So.2d 545.
The question of insurance coverage turned upon whether the policy covered the 1963 Dodge automobile. On the evidence relating thereto which was before the court on hearing on motion for summary judgment we hold the trial court ruled correctly, on authority of Phoenix Insurance Company v. McQueen, Fla.App. 1970, 240 So.2d 79.
Affirmed.
I respectfully dissent from that portion of the majority opinion which holds that this appeal should be affirmed upon authority of Phoenix Insurance Company v. McQueen, Fla.App. 1970, 240 So.2d 79. The holding in Phoenix would, I think, require a reversal of this summary judgment. The issue of coverage should be tried because the failure of an insurance company to respond to an SR-21 form is not conclusive proof of coverage.