Gillen v. United Services Auto. Ass'n

• Decision Date: 10 July 1974
• Docket Number: No. 44307,44307
• Citation: 300 So.2d 3
• Parties: Marie GILLEN, Individually, et al., Petitioners, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent.
• Court: Florida Supreme Court

Page 3

300 So.2d 3

83 A.L.R.3d 313

Marie GILLEN, Individually, et al., Petitioners, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent.

No. 44307.

Supreme Court of Florida.

July 10, 1974.

Rehearing Denied Oct. 4, 1974.

Terrell Griffin and Russell Troutman of Troutman, Griffin & Parrish, Winter Park, for petitioners.

W. Marvin Hardy, III, of Gurney, Gurney & Handley, Orlando, for respondent.

ADKINS, Chief Justice.

By petition for writ of certiorari, we have for review a decision of the District Court of Appeal, Fourth District (280 So.2d 52), which allegedly conflicts with the decision of this Court in Sellers v. United States Fidelity & Guaranty Company, 185 So.2d 689 (Fla.1966). We have jurisdiction. Fla.Const., art. V, § 3(b)(3), F.S.A.

The facts of this cause are not complicated. Petitioners, hereinafter referred to as Gillens, took out two insurance policies with respondent, hereinafter referred to as United, and received delivery of the policies on December 16, 1969, while residents of New Hampshire. One policy (No. 29) covered a Karmann Ghia; the other (No. 28) a Volkswagen bus. Both policies provided for uninsured motorist coverage of $10,000 per person and $20,000 per accident. The policy period was one year and separate premiums were paid for each policy.

In July, 1970, the Gillens moved to Florida, and after notifying United of the move, sold the Volkswagen bus and purchased a Volkswagen Squareback. United issued Policy No. 31 on the latter, cancelling No. 28. On September 7, 1970, the Gillens were involved in a serious accident in which Mr. Gillen (whose estate is co-petitioner) was killed and Mrs. Gillen was seriously injured. The accident was the result solely of the negligence of an uninsured motorist.

United refused to pay the limits on Policy No. 29, relying on an 'other insurance' clause found in the policy. This clause basically provided that if the insured has other similar insurance available and applicable to an accident, the damage would be limited to the higher of the applicable limits. The Gillens assert that such a policy would be against the public policy of the State of Florida, as enunciated by this Court in Sellers, supra, and urge the Court to allow recovery on both policies.

Faced with this issue, the Circuit Court, upon findings of relevant facts, held that the Gillens were entitled to the benefits of both policies under the reasoning of Seller, supra, and also that the application of New Hampshire law would be against the public policy of Florida. In addition to this declaratory judgment, the Gillens were awarded an attorneys' fee of $4,300.

The District Court reversed, finding that the insurance contract should be governed by the law of the state in which the policy was delivered, that is, New Hampshire, while the issue of attorneys' fees was remanded for further consideration. Judge Mager dissented, stating that 'other insurance' clauses are void and unenforceable in Florida and, since Florida was the jurisdiction having the most significant relationship to the contract, its laws should govern.

In Sellers v. United States Fidelity & Guaranty Company, Supra, this Court was confronted with a similar question relating to the 'other insurance' clause. Petitioner, plaintiff in the trial court, had a policy of insurance with respondent, including uninsured motorist coverage. The automobile in which she was riding was owned by one Milstead, to whom another insurance company had issued a similar policy containing an uninsured motorist provision. The limit of liability under each of the policies was $10,000 for injury to each person. The operator of the automobile which collided with the automobile in which Mrs. Sellers was riding was uninsured. The petitioner made a claim against Milstead's insurance company and settled the claim for $7,500. The petitioner then filed a claim based upon the same injuries against respondent, who then brought a suit for declaratory decree asserting that, under a provision of the policy dealing with 'other insurance,' it was not liable to the petitioner because there was available to her through the other insurance company similar insurance coverage against the loss.

The question before the Court was whether an automobile liability insurance carrier providing coverage against injury by a uninsured motorist in accord with the requirements of Fla.Stat. § 627.0851, F.S.A., can accept a premium for such coverage and then deny coverage on the ground that the insured had other similar insurance available to him. We held

'There appears no latitude in the statute for an insurer limiting its liability through 'other insurance'; 'excess-escape' or 'pro rata' clauses, as attempted in Condition 5. If the statute is to be meaningful and controlling in respect to the nature and extent of the coverage and to the sources of recovery and subrogation of the insurer, all inconsistent clauses in the policy to the controlling statutory language such as are contained in Condition 5 must be judicially rejected.' 185 So.2d 689, at 690.

We now see no reason to alter our position on the subject of 'other insurance' clauses.

United points to the wording of Fla.Stat. § 627.0851, F.S.A., which refers to insurance 'delivered or issued for delivery in this state' and insists that the insurance policy (No. 29) was delivered in New Hampshire. While it is true that the Legislature in its language thus limited the application of the statute, there is no indication that the Legislature necessarily meant to exclude cases such as the one Sub judice. Given the rationale behind this Court's decision in Sellers, supra, this is, that the public policy of this State requires the elimination of 'other insurance' provisions, there is no reason to limit its scope in a situation such as the present one.

United is headquartered in the State of Texas and issues policies whose coverage is applicable in all fifty states and Canada. Its specialty is active duty and retired military officers, a rather mobile group. The Gillens notified United of their move to Florida and were subsequently issued a policy (No. 31). This can be seen as an acknowledgment of domiciliary change and would indicate to United that coverage under both policies would be shifted to Florida. Yet permiums were collected on both policies by United, who now says it is liable under only one. There is nothing in law or equity which should aid an insurance company in so one-sided an arrangement.

United asks the Court to be guided by considerations of county as laid down in Herron v. Passailaique, 92 Fla. 818, 110 So. 539 (1926), which stated that rules of comity should only be departed from to protect one's own citizens or to enforce a 'paramount rule of public policy.' Concerning protection of one's citizenry, it should be noted that the Gillens had purchased automobile tags, drivers' licenses, mortgaged their home in Florida and entered their children in local schools. They were in the process of establishing themselves as permanent residents of this State, and as such are proper subject of this Court's protection from injustice or injury. While comity is in theory a...