Aetna Cas. & Sur. Co. v. Green, Y--336
| Decision Date | 05 February 1976 |
| Docket Number | No. Y--336,Y--336 |
| Citation | 327 So.2d 65 |
| Court | Florida District Court of Appeals |
| Parties | AETNA CASUALTY & SURETY COMPANY, Appellant, v. Tina J. GREEN, Appellee. |
Robert P. Gaines, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellant.
Fredric G. Levin, Pensacola, for appellee.
This is an appeal from a final judgment of the Circuit Court in and for Escambia County, William S. Rowley, Circuit Judge, which held that an excess indemnity policy provided uninsured motorist coverage for any damages sustained by the plaintiff over and above $100,000.00 as a result of the following facts:
1. The named insured rejected in writing uninsured motorist coverage on the motor vehicle involved in the accident, a commercial vehicle, which could have been provided by a comprehensive liability policy which did provide bodily injury liability coverage of $100,000.00 for each person and $300,000.00 for each occurrence. He did not reject uninsured motorist coverage for one of the private passenger vehicles covered by the policy and selected lower limits of uninsured motorist coverage for the others and the policy appropriately reflected these decisions.
2. The named insured's decision to reject uninsured motorist coverage on the commercial vehicles and not on the private passenger vehicles was based on his belief that only persons covered by workmen's compensation would or should occupy the commercial vehicles and that therefore uninsured motorist coverage would be a needless expense insofar as those vehicles were concerned.
3. At the same time that the named insured applied for the general liability policy, he applied for an excess indemnity (umbrella) policy which listed the liability policy as underlying insurance.
4. The named insured was never offered uninsured motorist coverage under the excess indemnity policy and therefore never rejected it except by implication.
The applicable provision of the Florida Statutes read as follows:
No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in not less than the limits of the liability insurance purchased by the named insured for bodily injury, **(or such lower limits complying with the company's rating plan as may be selected by the named insured,) under provisions filed with and approved by the department, 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, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage . . ., § 627.727(1), Florida Statutes.
The record and briefs present this court with the following questions:
1. Is the excess indemnity policy issued by the...
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