Mullis v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 01 July 1971
• Docket Number: No. 39465,39465
• Citation: 252 So.2d 229
• Parties: Richard Lamar MULLIS, a minor, by his father and next friend, Shelby Mullis, and Shelby Mullis, Individually, Petitioners, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Respondent.
• Court: Florida Supreme Court

Page 229

252 So.2d 229

Richard Lamar MULLIS, a minor, by his father and next friend, Shelby Mullis, and Shelby Mullis, Individually, Petitioners, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Respondent.

No. 39465.

Supreme Court of Florida.

July 1, 1971.

Rehearing Denied Sept. 28, 1971.

Gerald R. Power of Sistrunk & Power, Jacksonville, for petitioners.

Ronald L. Palmer, of Mathews, Osborne & Ehrlich, Jacksonville, for respondent.

ERVIN, Justice.

This is a conflict certiorari review of the decision of the District Court of Appeal, First District, in Mullis v. State Farm Mutual Automobile Insurance Company, Fla.App.1970, 231 So.2d 46.

Petitioners, Richard Lamar Mullis, a minor, by his father, Shelby Mullis, and Shelby Mullis individually, sued State Farm Mutual Automobile Insurance Company, a corporating, alleging in the complaint that Shelby Mullis had been issued two policies of automobile liability insurance by the respondent insurance company covering a 1963 Ford automobile and a 1967 Ford automobile, which policies, pursuant to F.S. section 627.0851(2), F.S.A., who provided coverage to Shelby Mullis, the named insured, to his spouse and to their relatives resident in his household (which included Richard Lamar Mullis) for bodily injury caused by the negligence of an owner or operator of an uninsured automobile.

The complaint alleged Richard Lamar Mullis, the son, was injured on May 25, 1967 while said insurance policies were in force; that the injury occurred while the son was operating a Honda motorcycle which was not covered by automobile liability insurance issued by the respondent insurance company; that the son was injured on said date by the negligent operation of an automobile by Marion William Smith, who at the time of the accident was an uninsured motorist; and that the Honda motorcycle was owned by Richard Lamar Mullis' mother, the wife of Shelby Mullis.

Arbitration of the claim for damages because of the bodily injury of the son arising from the motor vehicle accident was refused by the insurance company. The instant cause of action ensued. Therein summary judgment was entered by the trial court in favor of the defendant insurance company pursuant to its defenses that its two policies by their terms excluded the uninsured motorist coverage claimed by plaintiffs.

The two policies provided uninsured motorist coverage in this language:

'INSURING AGREEMENT III--UNINSURED AUTOMOBILE COVERAGE

'COVERAGE U--Damages for Bodily Injury Caused by Uninsured Automobiles. To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.' Insureds protected from damages because of bodily injury caused by uninsured motorists are described in the policies as follows:

'Insured--The unqualified word 'insured' means

(1) the first person named in the declarations and while residents of his household, his spouse and the relatives of either;

(2) any other person while occupying an insured automobile; and

(3) any person, with respect to damages he is entitled to recover because of bodily injury to which this coverage applies sustained by an insured under (1) or (2) above.'

However, such coverage is made subject to this exclusion in each policy which reads:

'EXCLUSIONS--INSURING AGREEMENT III

'Insuring Agreement III does not apply:

'(b) to bodily injury to an insured while occupying or through being struck by a land motor vehicle owned by the named insured or any resident of the same household, if such vehicle is not an 'insured automobile';'

To summarize, the policies provide for uninsured motorist family protection for the members of the Mullis family household, subject to the exclusion that this coverage is not applicable if the bodily injury caused by the negligence of an uninsured motorist occurs while the injured member of the family is occupying another motor vehicle owned by Shelby Mullis or an insured member of his household that is not covered by said automobile liability policies issued to Shelby Mullis.

Specifically, the trial court agreed this exclusion defeats plaintiffs' cause of action and the First District Court affirmed, on appeal, citing in support its decision in United States Fidelity & Guaranty Co. v. Webb, Fla.App.1966, 191 So.2d 869.

The question to be decided is whether the described exclusion of Richard Lamar Mullis from uninsured motorist coverage is legally permissible under Florida law.

We have determined after careful consideration and study of the applicable law and pertinent decisions that the decision of the District Court of Appeal must be quashed.

The recited exclusion is contrary to F.S. section 627.0851, F.S.A., and the uninsured motorist protection contemplated therein. ¹

This section provides that no automobile liability policy shall be issued with respect to any motor vehicle registered or garaged in Florida unless coverage is provided therein 'in not less than the limits described in Section 324.021(7), F.S. * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease * * *'

The 'persons insured' thereunder in an automobile liability insurance policy as contemplated by F.S. chapter 324, F.S.A., the Financial Responsibility Law, ordinarily are: the owner or operator of an automobile, his spouse and other members of his family resident in his household and others occupying the insured automobile with the insured owner's permission. These insureds are protected by the policy from liability to others due to injuries they inflict by their negligent operation of the insured owner's automobile. Reciprocally, this same class of insureds is protected by uninsured motorist coverage in the same policy from bodily injury caused by the negligence of uninsured motorists.

F.S. section 324.021(7), F.S.A., of the State's Financial Responsibility Law, relating to automobile liability insurance provided by an owner of a motor vehicle to comply with the law to cover his liability to others because of the negligent operation of his motor vehicle, sets limits of ten thousand dollars because of bodily injury or death of one person in any one accident (and subject to said limit for one person), and twenty thousand dollars because of bodily injury to or death of two or more persons in any one accident.

Similarly and reciprocally, Section 627.0851 provides for the same limits described in F.S. section 324.021(7), F.S.A., as uninsured motorist protection coverage. Accordingly, if an uninsured motorist had complied with the financial responsibility law and obtained automobile liability insurance he would have afforded all members of the public, including, of course, the class of insureds described above, the same protection as Section 927.0851 prescribes for those taking advantage of such section.

Automobile liability insurance coverage obtained in order to comply with or conform to the Financial Responsibility Law, F.S. chapter 324, F.S.A., after an insured's first accident, cannot be narrowed by the insurer or carrier through exclusions contrary to the law. For example, the combined rationale of Howard v. American Service Mutual Insurance Co., Fla.App., 151 So.2d 682, 8 A.L.R.3d 382; Phoenix Assur. Co. of N.Y. v. Bankers and Shippers Ins. Co., Fla.App., 202 So.2d 122, and Bankers and Shippers Ins. Co. of New York v. Phoenix Assur. Co., Fla., 210 So.2d 715, is that after a first accident an automobile owner complying with the Financial Responsibility Law may not have excluded from his automobile liability policy, coverage for those operating the insured automobile with his permission, contrary to F.S. section 324.151(1)(a), F.S.A.

The same is true as to uninsured motorist coverage obtained pursuant to the financial responsibility law's counterpart, Section 627.0851, as will be demonstrated by authorities hereinafter cited.

When uninsured motorist coverage was obtained by Shelby Mullis pursuant to Section 627.0851 for himself as the named insured, for his spouse and for his or his spouse's relatives who are residents of his household, they were given the same protection in case of bodily injury as if the uninsured motorist had purchased automobile liability insurance in compliance with the Financial Responsibility Law. This, of course, would not be the case as to other persons potentially covered who are not in the class of the named insured and relatives resident in the Mullis household. These latter are protected only if they receive bodily injury due to the negligence of an uninsured motorist while they occupy the insured automobile of the named insured with his permission or consent. This latter group is necessarily restricted to occupants of the insured automobile for the purpose of coverage identification and to show their insurable relationship to the named insured paralleling coverage for others than named insured in automobile liability policies. However, this is not true as to the named insured and the protected relatives resident in his household.

Whenever bodily injury is inflicted upon named insured or insured members of his family by the negligence of an uninsured motorist, under whatever conditions, locations, or circumstances, any of such insureds happen to be in at the time, they are covered by uninsured motorist liability insurance issued pursuant to...