Workmen's Mutual Insurance Company, Inc., and Fidelity and Guaranty Insurance Underwriters, Inc., Appellants, v. Bella Vista Hotel Apartments, Inc., Appellee, 399 F.2d 693 (5th Cir. 1968)

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US Court of Appeals for the Fifth Circuit - 399 F.2d 693 (5th Cir. 1968) August 22, 1968

George J. Baya, Miami, Fla., Sheldon H. Hoffman, Hollywood, Fla., for appellants.

Melvin T. Boyd, Miami, Fla., for appellee.

Before WISDOM and COLEMAN, Circuit Judges, and COMISKEY, District Judge.


In the trial court a jury verdict was returned against the appellants, Workmen's Mutual Insurance Co. and Fidelity & Guaranty Insurance Underwriters Inc., in the amount of $47,750.00 and $14,250.00 respectively, on an insurance loss as a result of hurricane "Betsy".

Appellants claim that the loss was excluded by the provisions of the policy.1  Testimony, including expert opinion, was offered at trial as to the cause of the loss. The jury was instructed as to the exclusion provision of the policy. It was not unreasonable for the jury to find that the damages suffered were caused by wind and not by the excluded causes. There was evidence from which the jury could make this finding. Liberty Mutual Insurance Co. v. Falgoust, 386 F.2d 248 (5th Cir. 1967); Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841 (5th Cir., 1967); Planters Manufacturing Co. v. Protection Mutual Insurance Co., 380 F.2d 869 (5th Cir., 1967).

The motion of the appellee for attorney's fees is denied.



Both insurance policies provide the following exclusions: "Loss caused by, resulting from, contributed to or aggravated by any of the following: * * * flood, surface water, waves, tidal water or tidal wave, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not; * * *"