Opinion
No. 70-593.
November 19, 1971. Rehearing Denied December 21, 1971.
Appeal from the Circuit Court of Broward County, L. Clayton Nance, J.
Richard G. Gordon, of McCune, Hiaasen, Crum, Ferris Gardner, Fort Lauderdale, for appellant.
Edward A. Perse, of Carey, Dwyer, Austin, Cole Selwood, Miami, for appellee.
This is an appeal by the plaintiff below from an adverse final judgment, rendered after a nonjury trial.
The judgment comes here with a presumption of correctness, and the burden is on appellant to clearly demonstrate error by the trial court. We believe he has failed to do this; and a detailed exposition of the facts and legal contentions would be of slight precedential value to the bar or to the law of the state.
Suffice it to say that appellant's principal contention is that the liability policy in question was ambiguous, that such ambiguity should have been resolved in his favor, and thereby the policy should have been construed to afford him coverage under the facts of this case. By their very nature, policies of insurance are relatively complex instruments and require a reading of all their provisions in pari materia with all other provisions. Ambiguity of language is to be distinguished from unintelligibility and inaccuracy, for words cannot be said to be ambiguous unless their signification seems doubtful and uncertain to persons of competent skill and knowledge to understand them. It does not include uncertainty arising from the use of peculiar words, or of common words in a peculiar sense. (Black's Law Dictionary, Fourth Edition, page 105.) If the language used is clear and unambiguous, it will of course be given its natural meaning. The court should not extend strictness in construction to the point of adding a meaning to language that is clear. The rule of strict construction does not apply where the result would be a construction that the parties could not have intended. (18 Fla.Jur., Insurance, § 408.)
Applying these principles to the facts of this case, we perceive no ambiguity in the policy in question, and neither did the trial court, which heard the testimony.
Accordingly, the judgment below is affirmed.
WALDEN, J., concurs.
MAGER, J., dissents, with opinion.
I must dissent because I believe the general principles of law set forth by the majority have not been correctly applied to the facts of the case sub judice.
Contentions similar to those made by the parties with respect to policy provisions substantially identical to those in the case sub judice were considered in New Amsterdam Casualty Company v. Addison, Fla.App. 1964, 169 So.2d 877, and Aetna Insurance Company v. Stevens, Fla.App. 1969, 229 So.2d 601. In both cases the court found the existence of an ambiguity which was resolved against the insurer and in favor of the insured. Paraphrasing Judge Mann's observations in Aetna, if the insurance company had no intention of defending the general contractor accused of negligent construction after completion of his work, it should have said so in plain language. As Judge Mann concluded:
"Any appellate judge who has seen what he thought was a perfectly clear opinion cited as authority for some bizarre proposition can sympathize with those who must writ technical language. The law does not penalize plain language, but it puts the cost of ambiguity squarely on the insurer."
In light of the foregoing it is my opinion that an ambiguity exists in the policy of insurance with respect to the "Products — Completed Operations" provision. I would reverse for the reasons more fully set forth in the New Amsterdam and Aetna decisions.