Opinion
No. 70-1088.
September 17, 1971. Rehearing Denied October 21, 1971.
Appeal from the Court of Records for Broward County, Robert W. Tyson, Jr., J.
Michael B. Davis, of Walton Lantaff Schroeder Carson Wahl, West Palm Beach, for appellant.
Myron B. Berman, Miami, for appellee.
This is an appeal from a final judgment on an insurance contract covering certain risks arising out of the operation of a garage for the repair of motor vehicles. The insurer is the appellant and the insured is the appellee. The insurer claims that it was not liable for the loss in question because of a specific exclusionary clause in the insurance contract. This basis for relief not only was not raised by appellant in the trial court, but is inconsistent with the theory of non-liability which appellant did raise below. We hold that the effect of the exclusionary clause will not be considered for the first time on appeal. Jackson v. Whitmire Construction Company, Fla.App. 1967, 202 So.2d 861, 862; United Services Automobile Association v. Porras, Fla.App. 1968, 214 So.2d 749. Without consideration of the exclusion, it appears to us that the appellant was liable on the contract. The judgment imposing such liability is, therefore, affirmed.
Affirmed.
REED, C.J., CROSS, J., and DYKES, ROGER F., Associate Judge, concur.