Opinion
No. 78-2411.
July 31, 1979. Rehearing Denied September 14, 1979.
Appeal from the Circuit Court, Dade County, Herbert M. Klein, J.
Joseph A. McGowan, Miami, for appellant.
Daniel P. Tunick, Miami, for appellee.
Before PEARSON, BARKDULL and HUBBART, JJ.
The insured bought insurance on a vehicle he did not possess, although he did have title. Subsequently he acquired possession of the automobile. He then sought to charge the insurance company for the loss of its use for a portion of the time before he acquired it under its comprehensive clause which reads, in part, as follows:
"Coverage D — Comprehensive (Including Coverage E Collision)
"To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, but with respect to each automobile such payment for loss shall be only for the amount of each loss in excess of $100.
"Such insurance as is afforded by the `Use of Other Automobiles' Insurance Agreement with respect to loss to a private passenger automobile as stated therein applies only to loss thereto caused by collision of such automobile with another object or by upset of such automobile and, with respect to each such loss, only for the amount thereof in excess of $100, subject otherwise to the provisions of such Insuring Agreement."
The complaint seeking recovery alleges, in part, as follows:
. . . . .
"4. That under the terms of said policy of insurance at Coverage `D' — Comprehensive, the Defendant agrees `to pay for direct and accidental loss of ____ the automobile . . .'."
The trial court awarded damages for such loss of use. We reverse.
The loss of use was not caused by any accidental loss of or damage to the automobile but, in fact, was an attempt by the plaintiff to recover for the lack of use of the vehicle prior to the time he actually acquired possession of it, which delay was not attributable to any accident. Therefore, there should have been no recovery under this comprehensive coverage feature of the policy.
The final judgment here under review be and the same is hereby reversed, with directions to dismiss the cause.
Reversed and remanded, with directions.
I must respectfully dissent. I would affirm the judgment appealed from based on the authority of Aetna Insurance Co. v. Webb, 251 So.2d 321 (Fla. 1st DCA 1971).
The court neglects to point out in its opinion that the insured did not acquire initial possession of the insured vehicle upon its purchase because the dealer delivered the wrong vehicle to the insured due to a mix-up in vehicle identification numbers. The wrong vehicle was soon thereafter repossessed and 19 weeks later the insured acquired possession of the insured vehicle. The trial court found coverage under Traveler's policy for the insured's 19 week loss of his vehicle. I agree.
In my view, the insured suffered a "direct and accidental loss" of his insured vehicle for the above period under coverage D of the Traveler's policy as quoted above in the court's opinion. The insured lost the use of this vehicle fortuitously or by chance, without intention or design, which was unexpected, unusual and unforeseen. As such, it was an accidental loss under the established law of this state. Aetna Insurance Co. v. Webb, 251 So.2d 321 (Fla. 1st DCA 1971).
The fact that the chance mix-up in identification numbers at the dealership deprived the insured of initial possession of the insured vehicle does not make it any less an accidental loss and should not now be visited upon the insured as a reason for denying coverage altogether. The fact remains that the insured lost the use of his insured vehicle by accident for which there is clear coverage under the policy herein.
I would affirm.