Allstate Ins. Co. v. Fowler
| Decision Date | 15 August 1984 |
| Docket Number | No. AW-219,AW-219 |
| Citation | 455 So.2d 506 |
| Parties | ALLSTATE INSURANCE COMPANY, Appellant, v. Allen L. FOWLER, Enterprise Leasing Company, Inc., and Travelers Insurance Company, and Kendra Morrison, Appellees. |
| Court | Florida District Court of Appeals |
Harris Brown, of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for appellant.
William S. Burns, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for Travelers Insurance Company, appellee.
Allstate Insurance Company appeals a final summary judgment entered on behalf of Travelers Insurance Company. The issue on appeal is the proper method of determining priority among insurers where the insureds are different entities.
In April of 1982, Allen Fowler was struck while riding his motorcycle by a vehicle operated by Kendra Morrison and leased from Enterprise Leasing Company. Mr. Fowler brought an action for his personal injuries. Allstate Insurance Company, Ms. Morrison's insurer through a policy issued to her parents, brought a declaratory judgment action to determine priority of coverages. It is from a summary judgment adverse to Allstate in that action that this appeal was taken. We reverse and remand for further proceedings.
There were three insurance policies in issue. The first is a business automobile policy issued by Travelers to Enterprise with a policy limit of $10,000. Because that policy did not comply with section 627.7263, Florida Statutes (1981), the court found that this policy must provide the first layer of coverage. This finding is not appealed. The only issue is the priority of the two remaining policies.
Allstate does not dispute that its policy, which provides $250,000 bodily injury coverage per person, insures Ms. Morrison; rather, its argument is based on policy language:
If a person insured is using a substitute private passenger auto or non-owned auto, our liability insurance will be excess over other collectible insurance.
The third policy is one issued by Travelers to Enterprise for excess liability to a limit of $500,000. This policy contains no language concerning its relation to other insurance. Travelers relies on the fact that it insures only Enterprise, which would be held vicariously liable to Mr. Fowler under Florida's dangerous instrumentality doctrine, to support its claim that the Allstate policy should provide the second layer of coverage.
Allstate moved for summary judgment. The court denied the motion, relying on Hartford Accident & Indemnity Co. v. Kellman, 375 So.2d 26 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 755 (Fla.1980) and Insurance Co. of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977). Travelers countered with its own motion for summary judgment, which was granted.
The controlling principle in this cause is that if Enterprise is only vicariously liable to Fowler because of the dangerous instrumentality doctrine, its insurer is entitled to be subsequent in coverage to that of the negligent driver regardless of policy language. If, however, Enterprise was in any way negligent, it would be a joint tortfeasor and "in the same class" with Morrison, and policy terms would control. Since there was no finding regarding the nature of Enterprise's liability, the summary judgment entered for Travelers was improper.
Florida case law on this question is confusing, at the very least. In INA v. Avis, supra, the Florida Supreme Court held that the parties were free to contract among themselves to determine priorities of coverage and ruled that policy language controlled. We note, however, that the dispute was between insurers whose insureds were both apparently vicariously liable only (the tortfeasor's employer and the lessor of the vehicle). The opinion is not explicit as to whether contract terms apply only where insureds are "in the same class" (i.e., joint tortfeasors or both vicariously liable or the same insured), but we believe it should be properly so restricted. Hartford v. Kellman, supra, by contrast, cited the correct rule but applied it to an inappropriate factual circumstance (all policies covered the same individual). Other Florida cases involved insurers who insured the same individuals or those in the same class, and are not dispositive of the question presented by this appeal.
Other jurisdictions have noted the proper rule of law to be applied where one insurer insures an active tortfeasor and the other insures one who is only vicariously liable:
... An insurer providing extended coverage is ultimately liable as against an insurer providing coverage only to the named insured, where the named insured's liability is vicarious only, and that named insured has a right of recovery over against the person or persons primarily liable, to whom coverage has been extended only by the extended coverage provision of the first insurer.
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