McGlinchey v. Hartford Acc. and Indem. Co.

• Citation: 692 F. Supp. 564
• Decision Date: 05 August 1988
• Docket Number: Civ. A. No. 87-1707.
• Parties: Herbert J. McGLINCHEY, Catherine J. McGlinchey, Plaintiffs, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

692 F. Supp. 564

Herbert J. McGLINCHEY, Catherine J. McGlinchey, Plaintiffs, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, et al., Defendants.

Civ. A. No. 87-1707.

United States District Court, E.D. Pennsylvania.

August 5, 1988.

A. Richard Feldman, Bazelon, Less & Price, Philadelphia, Pa., for plaintiffs.

Nancy M. Goodwin, Thompson and Pennell, Philadelphia, Pa., for Liberty Mut. Ins. Co.

Barbara J. O'Connell, Sweeney, Sheehan and Spencer, Philadelphia, Pa., for Hartford Acc. & Indem. Co.

MEMORANDUM AND ORDER

DITTER, District Judge.

Presently before me is the motion for summary judgment of defendant Liberty Mutual Insurance Company with regard to count I of plaintiffs' complaint. The following facts are apparent from the parties' briefs:

Plaintiff Herbert J. McGlinchey was injured in an accident with an uninsured motorist in Naples, Florida, on November 11, 1983. At the time of the accident, plaintiff was driving a car he had rented from Budget Rent-A-Car of Fort Myers, Florida. Defendant Liberty Mutual provided liability insurance coverage to Budget for its fleet of rental cars. Under the terms of his rental agreement with Budget, plaintiff was insured under the insurance policy Liberty Mutual issued to Budget.

In accordance with Florida law, under its policy with Liberty Mutual, Budget was entitled to uninsured motorist coverage equal to its general liability coverage unless it rejected that coverage or selected uninsured motorist coverage in a lesser amount. Fla.Stat.Ann. § 627.727(1) (1984 & Supp.1988).¹ Liberty Mutual moves for summary judgment on count I of plaintiffs' complaint, plaintiffs' claim for uninsured motorist benefits against it, on the basis that Paul Lee, Budget's general manager, rejected uninsured motorist coverage for Budget (and thus for plaintiff) for the policy period covering the date of plaintiff's accident.

Plaintiffs argue, first, that the rejection of uninsured motorist benefits effected by Lee was not a knowing and intelligent act and that the question whether it was or not must be submitted to the jury, thereby making summary judgment on count I inappropriate. Florida courts have consistently held that a valid rejection of the uninsured motorist coverage provided by Florida statute must be knowingly and intelligently made. E.g., American Fire & Indem. Co. v. Spaulding, 442 So.2d 206, 208 (Fla.1983); Kimbrell v. Great American Ins. Co., 420 So.2d 1086, 1088 (Fla. 1982). See also Lancaster Oil Co., Inc. v. Hartford Acc. & Indem. Co., 486 F.Supp. 399 (N.D.Fla.1980). In Kimbrell, the Florida Supreme Court stated that the question whether an insured has knowingly rejected uninsured motorist coverage is an issue to be decided by the trier of fact. Kimbrell, 420 So.2d at 1088. In a more recent decision, however, the Florida Supreme Court affirmed the reversal by the district court of appeals of a trial court's denial of a directed verdict to an insurer on the question whether there had been a knowing rejection of coverage. Vasquez v. Bankers Ins. Co., 502 So.2d 894 (Fla.1987). Finding that the insured had signed a form written in bold print which unambiguously rejected uninsured motorist coverage, the Florida Supreme Court concluded that there was no evidence supporting the contention that the rejection of uninsured motorist was not knowingly and intelligently made. Id. at 896. The Florida Supreme Court thus stated that a directed verdict should have been entered in favor of the insurer. Id. The court emphasized that where no evidence has been presented supporting the contention that a rejection was not knowing, the issue need not be submitted to the jury. Id.

In this case, Lee, on behalf of Budget,² signed, on March 25, 1983, for the policy year March 18, 1983, to March 18, 1984,³ a form written in bold print which clearly explained the uninsured motorist coverage options available to Budget as its insured. Under the heading "Important — Uninsured Motorist Insurance," the form stated:

We are required by Florida law to notify you of all options available to you regarding Uninsured Motorists Coverage. They are:

1. You are entitled to Uninsured Motorists coverage in an amount equal to your limits for Bodily Injury Liability coverage.

2. Regardless of any lower limits you may carry for Bodily Injury Liability, you are entitled upon written request, to limits up to $300,000 each accident.

3. You may select Uninsured Motorists limits as low as $20,000 each accident, if your Bodily Injury limits are higher than that.

4. You may entirely reject Uninsured Motorists coverage.

5. You are entitled, upon written request, to select Excess Underinsured Motorist Coverage, which includes the benefits of Uninsured Motorists but applies the amount purchased in addition to liability insurance carried by the other party.

The form further explained uninsured motorist and excess underinsured motorist coverage as follows:

**Uninsured Motorists Coverage applies to covered persons who suffer bodily injuries to the extent of their recovery rights against those legally responsible. The limit purchased is reduced by the amount of liability insurance carried by the person who is liable.

**Excess Underinsured Motorists Coverage provides the same protection as Uninsured Motorists Coverage, except the limit of coverage purchased is not reduced by the liability insurance carried by the person who is liable.

These descriptions were noted to be a brief summary of coverage only, and the form advised the reader to see policy provisions for full details.⁴ Lee signed the portion of the form rejecting both uninsured motorist coverage and excess underinsured motorist coverage.

In his deposition, Lee explained that Bill Henderson, Liberty Mutual's insurance agent, personally met with him and discussed uninsured motorist coverage. Lee testified that over the years he had discussed with Henderson Budget's decision to reject uninsured motorist coverage. Lee stated that he believed that for Budget to carry uninsured motorist coverage would be duplicative because most car renters would have such coverage under their personal auto policies. Since Florida law did not require Budget to carry it, Lee testified that he decided to reject the coverage. Budget's decision, as evident from Lee's deposition, was made on the basis that uninsured motorist coverage would be of no benefit to Budget which was protected from any exposure it might have by its general liability policies. In rejecting uninsured motorist coverage, Budget made a business decision not to extend the added protection of this coverage to its customers. Coupled with the written rejection form, Lee's deposition testimony shows a knowing and intelligent rejection of uninsured motorist coverage under Florida law. See Nationwide Mutual Fire Ins. Co. v. Kauffman, 495 So.2d 1184, 1187 (Fla.Dist. Ct.App.1986). In contrast plaintiffs have offered no evidence to show that Lee's waiver on behalf of Budget was anything but knowing and intelligent.⁵ See, e.g., Jackson v. State Farm Fire and Casualty Co., 469 So.2d 191 (Fla.Dist.Ct.App.1985) (entry of summary judgment in insurer's favor affirmed where insured offered no evidence to support her contention that rejection was not knowing).

Plaintiffs next take issue with the effectiveness of Budget's rejection of uninsured motorist coverage with regard to plaintiff. Under established Florida law, a lessor's rejection of uninsured motorist coverage is effective as to the lessee even if the lessee is unaware of it. E.g., Darnaby v. Greenstein Trucking Co., 425 So.2d 656, 658 (Fla.Dist.Ct.App.1983); Guardado v. Greyhound Rent-A-Car, 340 So.2d 510, 511-12 (Fla.Dist.Ct.App.1977). See also Kohly v. Royal Indem. Co., 190 So.2d 819, 820 (Fla.Dist.Ct.App.1966), cert. denied, 200 So.2d 813 (Fla.1967). Plaintiffs argue, however, that McGlinchey is an "insured" under Liberty Mutual's policy by virtue of his rental agreement with Budget and, therefore, should have been given the option of accepting or rejecting his own uninsured motorist coverage. I cannot accept plaintiffs' argument. First, while all renters are "insured" under Budget's insurance coverage once they sign the rental agreement, they are not the "named insured," as that word is used in the technical sense, under the policy with Liberty Mutual. The "named insured" on the policy is Budget. The decision of a named insured, such as Budget, to accept or reject uninsured motorist coverage, moreover, is binding on any additional insureds under the policy. Whitten v. Progressive Casualty Ins. Co., 410 So.2d 501, 504 (Fla.1982). Furthermore, even if plaintiff was somehow assumed to be a "named insured" under the Liberty Mutual policy, the statute provides that any named insured may reject uninsured motorist coverage for all insureds, named or additional. Id. (quoting Continental Ins. Co. v. Roth, 388 So.2d 617 (Fla.Dist.Ct.App.1980)). Second, as attractive as it might be, plaintiffs' suggestion that all lessees be free to choose their own coverage is contrary to Florida law which allows a lessor, as the named insured of an...