Allstate Ins. Co. v. Baker, 87-3126

• Decision Date: 17 May 1989
• Docket Number: No. 87-3126,87-3126
• Citation: 543 So.2d 847,14 Fla. L. Weekly 1214
• Parties: 14 Fla. L. Weekly 1214 ALLSTATE INSURANCE COMPANY, Appellant/Cross Appellee, v. Alycia R. BAKER, Appellee/Cross Appellant, and Domini Lys Denisco, a Minor, By and Through her Parents and Natural Guardians, Joy Denisco and John Denisco, and Joy Denisco and John Denisco, Individually, Appellees.
• Court: Florida District Court of Appeals

Page 847

543 So.2d 847

14 Fla. L. Weekly 1214

ALLSTATE INSURANCE COMPANY, Appellant/Cross Appellee, v. Alycia R. BAKER, Appellee/Cross Appellant and Domini Lys Denisco, a Minor, By and Through her Parents and Natural Guardians, Joy Denisco and John Denisco, and Joy Denisco and John Denisco, Individually, Appellees.

No. 87-3126.

District Court of Appeal of Florida Fourth District.

May 17, 1989.

Rehearing Denied June 21, 1989.

Norman A. Coll and Michael J. Higer of Coll, Davidson, Carter, Smith, Salter & Barkett, P.A., Miami, for appellant/cross appellee.

Mary Anne Philips of Green & Murphy, P.A., Fort Lauderdale, for appellee/cross appellant.

Richard A. Barnett of Barnett & Hammer, P.A., Hollywood, for appellees.

DOWNEY, Judge.

Appellant, Allstate Insurance Company, appeals from a final summary judgment declaring that its insurance policy affords uninsured motorist coverage for appellees, Domini Lys Denisco, a minor, and her parents, for injuries Domini suffered in an automobile accident. Appellee, Alycia R. Baker, has cross appealed from the same declaratory judgment finding that she was not entitled to liability coverage under the same insurance policy.

The litigation commenced when Domini and her parents brought a negligence action against Baker for damages due to injuries suffered by Domini in an automobile accident. Domini, a minor living with her parents, was a passenger in an automobile owned by her parents and driven by Baker, a family friend. Allstate intervened and filed a petition for declaratory relief to determine whether its insurance policy afforded liability coverage for Baker and uninsured motorist coverage for Domini and her parents. From a judgment finding uninsured motorist coverage available to Domini and her parents and no liability coverage available for Baker these appeals ensued.

The policy issued by Allstate to the Deniscos provides liability and uninsured motorist insurance coverage. However, the policy contains an exclusion commonly known as a "household exclusion" regarding the liability coverage, which states, among other things:

Exclusions--What is not covered. This coverage does not apply to liability for:

(6) Bodily injury to any person related to a person insured by blood, marriage or adoption and residing in the person insured's household.

Allstate contends that the circumstances involved in this case bring Baker's claim within the policy exclusion because Mr. and Mrs. Denisco's child, Domini, while a member of their household, was injured while riding as a passenger in their automobile driven with their consent by Baker, a friend of the family. Therefore, neither Domini nor her parents were afforded liability coverage under the policy. This position is strongly supported by the general case law, including Reid v. State Farm Fire & Casualty Company, 352 So.2d 1172 (Fla.1977), Larsen v. State Farm Mutual Automobile Insurance Company, 485 So.2d 458 (Fla. 4th DCA 1986), and Newman v. National Indemnity Company, 245 So.2d 118 (Fla. 3d DCA 1971). The exclusion has been generally accepted as a valid policy provision because it protects the insurer from "over friendly or collusive suits between family members." Reid v. State Farm, 352 So.2d at 1173. The same rationale would apply to close family friends. Newman v. National, 245 So.2d 118.

Baker acknowledges the "apparent abundance of authority" supporting Allstate's position but suggests that the cases relied upon by Allstate all involve situations in which the driver and injured passenger are resident relatives, except in Newman. We should observe here that the Florida Supreme Court, in Reid, cites Newman, as stating the prevailing rule in Florida. We, therefore, find no reversible error demonstrated in the cross appeal and affirm the judgment in that respect.

As pointed out above, the judgment under review found that the household exclusion precluded liability insurance coverage for Baker. However, it also found that, absent the effectiveness of the liability provision of the policy in these circumstances, the automobile in question became uninsured, bringing the uninsured motorist provisons into play and affording coverage to Domini and her parents. Allstate contends that conclusion is contrary to policy provisions and the existing state of the law in Florida and elsewhere.

The policy, vis-a-vis uninsured motorist coverage, defines an uninsured automobile as "a motor vehicle which has no bodily injury liability bond or insurance policy in effect at the time of the accident." Furthermore, it excludes from the definition of an uninsured automobile a "vehicle defined as an insured auto under the liability portion of [the] policy."

While the policy in question did have in effect a provision for bodily injury liability, that provision is not applicable here due to the circumstances of the case falling within the household exclusion. Thus, the Deniscos maintain that their automobile fell within the definition of an uninsured motor vehicle. The Deniscos rely on Jernigan v. Progressive American Insurance Company, 501 So.2d 748 (Fla. 5th DCA 1987), as did the trial court, for allowance of uninsured motorist coverage under the same policy.

The Deniscos also argue that uninsured motorist coverage was available because the driver and injured passenger in this case were not related. They point out that, in many of the cases holding that uninsured motorist coverage was unavailable, the driver and passenger were related. In Reid they were sisters; in Simon v. Allstate, 496 So.2d 878 (Fla. 4th DCA 1986), they were husband and wife; and so on. In essence, the Deniscos contend that, because Domini was not injured by a family member, the household liability exclusion would not be defeated by allowing uninsured motorist coverage. This distinction, though arguable, is not valid in our judgment. In Porr v. State Farm Mutual Automobile Insurance Company, 452 So.2d 93 (Fla. 1st DCA 1984), rev. denied, 496 So.2d 816 (Fla.1986), Curtin v. State Farm Mutual Automobile Insurance Company, 449 So.2d 293 (Fla. 5th DCA 1984), rev. denied, 496 So.2d 815 (Fla.1986), and Newman, there was no relationship other than friends. Likewise, in ...