#### Starr W. HORTON, Appellant, v. AMERICAN HOME ASSURANCE COMPANY, a New York corporation, Appellee.

No. 70-628.

District Court of Appeal of Florida, Third District.

March 2, 1971.

Rehearing Denied March 26, 1971.

Starr W. Horton, in pro. per.

Adams, George & Wood and David L. Willing, Miami, for appellee.

Before PEARSON, C. J., and CHARLES CARROLL and HENDRY, JJ.

PER CURIAM.

The appellant filed an action for declaratory judgment to determine a disputed question of coverage under an insurance policy, and praying for a judgment holding there was coverage, and seeking recovery on the policy. The trial court *137granted a motion of the defendant to dismiss and entered judgment for the defendant. The plaintiff appealed.

The complaint alleged that the plaintiff, owner of a race horse, insured the horse under a policy issued by the defendant; that the term of the policy was for one year, from March 7, 1968, to March 7, 1969; that the coverage provided for in the policy (a copy of which was attached) was as follows:

> “Except as provided elsewhere in this policy,

> “This Policy Insures Against loss of death caused directly or indirectly by sickness, disease, accident, or by the intentional and voluntary destruction of insured animal (s) for humane reasons arising out of and solely consequent upon the foregoing named perils provided, however, that in the event of such intentional or voluntary destruction, the Company shall have expressly agreed to the destruction of the animal, or a Veterinary Surgeon appointed by the Company shall first have given a certificate that destruction is necessary to terminate incurable suffering, or a certificate is given by a qualified Veterinary Surgeon appointed by the Assured that the suffering is incurable and so excessive that immediate destruction is imperative for humane reasons without waiting for the appointment of a Veterinary Surgeon by the Company.

> >]< if* * H* ‡

> “Provided this is an annual Policy, the Company agrees to extend its liability on the animal (s) described in the Schedule of this Policy as per the terms and conditions of this Policy through death occurring within sixty (60) days after the expiration of this Policy as a result of any accident, illness, disease or physical disability occurring during the period of this Policy.”

It was further alleged that while being trained for racing, the horse suffered an injury on September 11, 1968, therein described as “a large vertical fracture on the lateral aspect of the right third metacarpal bone, which extended from immediately below the knee through the fetlock joint with marked separation”; that at the time of the injury a qualified veterinary surgeon diagnosed the injury to be one which was incurable and suggested that the animal be destroyed, but that in an effort to save the horse the plaintiff caused surgery to be performed in which “three compression screws were inserted in the cannon bone, one of which was immediately above the fetlock joint in the lateral aspect”; that due notice of the injury to the horse was given to the insurer; that in February of 1969, during the term of the policy, plaintiff made written request upon the insurer for renewal of the policy, which request was refused as to coverage of the kind above quoted; that on September 27, 1969, the horse suffered “a fragmented sesamoid bone in the right foreleg, diagnosed as being directly attributable to the broken leg”, stating that such break was caused by “compression screw in the lateral aspect of the metacarpal bone immediately above the fetlock joint and the resultant bone calcification below the screw”; that a qualified veterinary surgeon recommended that the animal be destroyed for humane reasons to avoid incurable suffering; that said information was communicated to the adjustment bureau of the insurer in order to afford the latter opportunity for investigation prior to the destruction of the animal, which thereafter was destroyed.

> The complaint further alleges:

> “That the injury that directly contributed to the destruction of this animal occurred during the term of this policy and of itself was sufficient as conceded by the Defendant through its authorized agents to justify the destruction of the insured animal for humane reasons within the provisions of the policy. However, the ultimate fate of the insuied animal was deferred by the Plaintiff in *138a humane effort to save and rehabilitate the horse. This effort and the Defendants’ election to deny further coverage after the expiration of the policy date imposes upon the Plaintiff an inequitable burden.”

The appellant argues for a construction of the policy which would place emphasis on the injury which caused death being within the term of the policy rather than upon death of the horse within the term. The appellee contends that the language of the policy is clear in disclosing that it is the death of the horse rather than the injury which is insured against, and that the coverage is limited to death occurring during the term of the policy or within the sixty day period thereafter.

It is our view that the insurance company having conceded that the injury was sufficient to justify the destruction of the animal the right to recovery under the policy became fixed, and the fact that the agreed upon destruction was postponed for a humane reason does not as a matter of law defeat the policyholder’s rights.

A contract should be construed to carry out the expressed intention of the parties. It is well recognized that a policy of insurance may not give a right in one paragraph and retract it in another unless the limitation is clearly expressed. Butche v. Ohio Casualty Ins. Co., 1962, 174 Ohio St. 144, 187 N.E.2d 20, 21 Ohio Ops.2d 418; Boal v. John Hancock Mut. Life Ins. Co., 1940, 305 Ull.App. 563, 27 N.E.2d 555; see Keeton, Insurance Law Rights at Variance With Policy Provisions, 83 Harvard Law Review, 961, 965.

We hold that the plaintiff-appellant was entitled to a trial of the issues, if any, created by answer to the complaint for declaratory judgment.

Reversed and remanded.

CARROLL, Judge

(dissenting).

With due deference to the views expressed by my colleagues, I am unable to agree with the ruling of the majority, and respectfully dissent.

In reversing the order of the trial court, the majority necessarily construed this one year policy of insurance on a race horse as providing that the coverage extends to liability for death of an insured horse which occurs after the expiration of the policy, if the subsequent death results from an illness or accident suffered by the horse during the policy term for which the horse properly could have been destroyed during the term. With that construction of the policy I disagree, because upon examining the language of the insurance policy it seems clear that the coverage provided was for a death occurring during the term of the policy, plus sixty days, resulting from an illness or accident.

The policy was in effect for one year, from March 7, 1968, to March 7, 1969. The horse suffered an accidental injury on September 11, 1968, approximately six months before the end of the term of the policy. The nature of the injury was such, as alleged, that when the insurer was notified thereof and investigated the same it “conceded” the horse should be destroyed for humane reasons. If the owner had shared that view, and had acted thereon and caused the horse to be destroyed, during the term of the policy, he would have been entitled to receive the $12,000 for which the life of the horse was insured. Instead, the owner had the horse treated to repair the injury, and the horse appeared to have recovered, until September 27, 1969, on which date the horse suffered another injury, allegedly resulting from the first injury, and for which it then was destroyed. Thus the death of the horse occurred approximately one year after the first injury, and six months after the expiration of the term of the policy.

*139This insurance policy was for a fixed term. It insured against death of the horse from illness or accident, or from intentional destruction of the animal for humane reasons necessitated thereby. If the meaning of the policy as insuring against death of a horse only when such death occurred within the term was not sufficiently clear from the main coverage clause and because of the limited term of the policy, any doubt or ambiguity in that regard was removed by the provision for extension of the coverage for sixty days after the one year term. Thereby the insurer agreed to *extend its liability*to include a death occurring within sixty days after the expiration of the one year term of the policy, resulting from an illness or accident suffered during the policy term. The language and import of that extension clause are such as to preclude an argument that the main coverage clause of the policy provided coverage for a death occurring any time after the term of the policy, if such subsequent death resulted from an illness or injury suffered during the term. Moreover, it is obvious that unless the coverage provided for in the policy was limited to a death occurring during the term, there was no reason or purpose for the sixty day extension clause, and the inclusion of such clause in the policy would have been pointless.

The plight of the plaintiff owner in the circumstances disclosed invites sympathy, and makes this a hard case in which to deny recovery. But in my opinion a decision holding that the complaint states a case for recovery for the death of a horse which occurred six months after the expiration of the term of the policy, is not in accordance with the provisions of the insurance contract, and calls to mind the saying that hard cases make bad law.

I regard the dismissal of the complaint by the trial court to have been a ruling that was necessitated by the terms of the insurance policy as applied to the facts alleged, and I dissent from this court’s reversal of the judgment of the trial court.