5 Fla. L. Weekly Supp. 551a
Insurance — Automobile — Coverage — Where insured purchased vehicle, obtained coverage under policy of insurance, traded that vehicle for second vehicle, was involved in accident in second vehicle, and filed claim form within 30 days of becoming owner of vehicle, filing of claim for benefits relating to second vehicle served as constructive notice and a request to insure second vehicle, even though there was never direct request by insured that second vehicle be substituted for traded vehicle
PHILIP ALAN BEALE, Plaintiff, v. MERCHANTS & BUSINESS MEN’S MUTUAL INSURANCE COMPANY, Defendant. County Court in and for Pinellas County, Civil Division. Case No. 96-10509-CO-42. April 8, 1998. Stephen O. Rushing, Judge. Counsel: Barry E. Berger and James J. Dowling, Law Offices of Berger and Dowling, Palm Harbor, for Plaintiff. John L. Morrow, Conroy, Simberg & Ganon, P.A., Orlando, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT UPON THE ISSUE OF LIABILITY
This cause came on to be heard on March 31, 1998 upon Plaintiff’s Motion for Partial Summary Judgment upon the issue of liability, and the Court having reviewed the file, heard argument of counsel and otherwise being fully advised in the premises the Court finds that:
On July 9, 1996 Plaintiff, PHILIP ALAN BEALE, purchased a 1994 Ford Mustang automobile. On the same date coverage was bound under a policy of insurance issued by Defendant, including coverage for collision damage.
On July 29, 1996, Plaintiff traded the Mustang for a 1994 Ford Probe.
On August 19, 1996, Plaintiff was involved in an accident in the Probe which suffered collision damage on August 20, 1996. Mr. Beale made a claim for benefits under the collision coverage of the insurance policy. On August 22, 1996, Defendant’s agent, Nu-Main of Florida, received a copy of a claim form relating to Plaintiff’s loss. On August 29, 1996, Mr. Beale formally requested coverage for the Probe by filling out a form at Auto Champion Insurance Agency. Defendants denied the claim upon the basis that Mr. Beale had not requested coverage for the Probe within thirty (30) days of acquiring it as required by Provision J of the policy which states:
J. “Your covered auto” means:
1. Any vehicle shown in the Declarations.
2. Any of the following types of vehicles on the date you become the owner:
a. a private passenger auto; or
b. a pickup or van that:
(1) has a Gross Vehicle Weight of less than 10,000 lbs.; and
(2) is not used for the delivery or transportation of goods and materials unless such use is:
(a) incidental to your “business” of installing, maintaining or repairing furnishings or equipment; or
(b) for farming or ranching.
This provision (J-2) applies only if:
a. you acquire the vehicle during the policy period;
b. you ask us to insure it within 30 days after you become the owner; and (emphasis supplied)
c. with respect to a pickup or van, no other insurance policy provides coverage for that vehicle.
If the vehicle you acquire replaces one shown in the Declarations, it will have the same coverage as the vehicle it replaced. You must ask us to insure a replacement vehicle within 30 days only if you wish to add or continue Coverage for Damage to Your Auto.
Documents of record show that Defendant’s agent, Nu-Main, and its adjuster, Claim Technologies, had notice within the thirty (30) day period after Mr. Beale acquired the Probe, that Mr. Beale had acquired the Probe and had been in an accident while driving the Probe.
Despite such notice, Defendant maintains that the Probe was not a covered automobile because Mr. Beale never formally asked Defendant to insure the Probe as is required by Section J 2(b) of the contract.
CONCLUSIONS OF LAW
In Rabatie v. U.S. Security Ins. Co. 581 So.2d 1327 (Fla. 3d DCA 1989), the court, under very similar circumstances, found that coverage under a 30-day “automatic insurance” clause is triggered by notice to the insurer of a loss and a request for benefits under the contract if such notice occurs within the 30-day period.
The Court finds this case indistinguishable from Rabatie. While there was never a direct request by Mr. Beale, in so many words, that the Probe be substituted for the Mustang, his filing of a claim for benefits relating to the Probe served as constructive notice and a request to insure the Probe.
It is axiomatic that insurance policies must be construed against the insurance company and in favor of the insured and insurance coverage. Rabatie at 1331.
Upon the foregoing facts, it is therefore
ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion is GRANTED.
2. The Court reserves jurisdiction over issues of damages, attorneys’ fees and costs.
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