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[T] Terracina Motor Co. v. Universal Underwriters Insurance Co.

July 21, 1998

TERRACINA MOTOR COMPANY, INC., APPELLANT
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, APPELLEE



Before Thomas, P.j., Diaz, And Herring, JJ.

The opinion of the court was delivered by: Thomas, P.j., For The Court:

Terracina Motor Company v. Universal Underwriters Insurance Company, 97-CA-00052-COA

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 12/12/96

TRIAL JUDGE: HON. GRAY EVANS

COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - CONTRACT

TRIAL COURT DISPOSITION: THE TRIAL JUDGE GRANTED SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

Terracina Motor Company, Inc. appeals the summary judgment dismissal of its claim against Universal Underwriters Insurance Company raising the following issue as error:

I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR UNIVERSAL UNDERWRITERS INSURANCE COMPANY BASED ON THE FACT THAT THE ALLEGATIONS OF A THIRD PARTY COMPLAINT AGAINST TERRACINA WERE THAT OF FRAUD WHICH IS EXCLUDED UNDER THE INSURANCE POLICY.

Finding no error, we affirm.

FACTS

On December 1, 1986, John K. Sides and his wife, Shirley Sides, leased a 1986 Mercury automobile from Terracina Motor Company, Inc. Unbeknownst to them, while the car was in the inventory of Terracina, the battery exploded causing damage to the paint of the car which necessitated repairs. The Sides leased the car with the understanding that it was new. Upon learning that the car was previously damaged and the fact that Terracina failed to disclose this fact, the Sides filed suit alleging intentional misrepresentation and fraud.

Terracina made demand on Universal Underwriters Insurance Company to pay for its defense and to indemnify it. This demand was denied by Universal Underwriters since the complaint by the Sides alleged fraud which was specifically excluded under the insurance policy issued by Universal Underwriters to Terracina. The jury returned a verdict against Terracina for both ...


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