Arrieta v. Volkswagen Ins. Co.

• Decision Date: 15 March 1977
• Docket Number: Nos. 75--1918,75--1919,s. 75--1918
• Citation: 343 So.2d 918
• Parties: Blanca ARRIETA, Appellant, v. VOLKSWAGEN INSURANCE COMPANY and Protective National Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 918

343 So.2d 918

Blanca ARRIETA, Appellant, v. VOLKSWAGEN INSURANCE COMPANY and Protective National Insurance Company, Appellees.

Nos. 75--1918, 75--1919.

District Court of Appeal of Florida, Third District.

March 15, 1977.

Rehearing Denied April 13, 1977.

Kuvin, Klingensmith & Lewis, Coconut Grove, Wayne, Genden & Bach, Miami, for appellant.

Thompson & Freyer, Rentz, McClellan & Haggard, Miami, for appellee.

Before HENDRY, C.J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

These appeals are from the same order and have been consolidated for all appellate purposes. The order appealed is a final judgment which dismissed the plaintiff Blanca Arrieta's complaint against defendants Volkswagen Insurance Company and Protective National Insurance Company of Omaha. Arrieta's complaint sought an order '. . . compelling the Defendants to proceed with the arbitration process in accordance with the terms of the insurance contracts . . .' The controlling question presented is whether an injured plaintiff who has available $30,000.00 in uninsured motorist coverage, pursuant to Section 627.727, Florida Statutes (1975), ¹ may, by petition, without bringing an action against the tortfeasor, who has available $10,000.00 liability coverage, compel arbitration under his own uninsured motorist coverage. The trial court held that prior to an action against the tortfeasor, the action upon the uninsured motorist coverage could not be maintained and, accordingly, the court dismissed the complaint.

The trial judge has set forth the factual basis for the ruling as follows:

'1. That there is no dispute herein that on or about July 14, 1974 Plaintiff was involved in an automobile accident, while riding as a passenger in a vehicle owned by Francisco Belarde; that it is further stipulated between counsel that the accident was caused by the negligence of one Tomas Manuel Acosta.

'2. That at the time and place of the accident it is agreed that the tortfeasor, Acosta, was insured for bodily injury liability insurance with limits represented by Plaintiff's counsel to be $10,000/$20,000; that the Court has been advised by Plaintiff's counsel that he has not proceeded against the alleged wrongdoer or his insurance company for damages arising out of the accident, notwithstanding the availability of the insurance on the alleged wrongdoer's vehicle; that, further, Plaintiff's counsel advises the Court that he does not intend or desire to so proceed.

'3. That it is further stipulated between counsel that at all times material to this cause the Defendant, Volkswagen Insurance Company, did have insurance coverage available to Miguel Arrieta on two separate vehicles; that each policy provided uninsured motorist coverage of $10,000/$20,000; that further, it is stipulated that Francisco Belarde, owner of the vehicle in which Plaintiff was riding, had a policy of insurance in full force and effect at the time and place of the said accident with Family Protection limits of $10,000/$20,000; that said insurance protection has been afforded to Mr. Belarde by Protective National Insurance Company.

'4. That Plaintiff's counsel takes the position herein that he does not have an obligation to first establish the amount of his damages by suing the alleged wrongdoer, or to thereby establish an insufficiency of insurance available from the alleged wrongdoer, but that he has the right to proceed directly against the Defendants herein on the theory that their combined coverage exceeds that total coverage available from the wrongdoer; that Defendants oppose this theory on the grounds that Plaintiff has not at this time shown an insufficiency of insurance coverage from Acosta to satisfy his claim.

'5. The Court, after due consideration of the above stipulations and representations, rejects Plaintiff's argument, to wit: That he is entitled to proceed directly against the Defendants and the uninsured motorist coverage available through their policies without first establishing an insufficiency of insurance through an action against the alleged wrongdoer.

'6. The Court, therefore, grants the Motions to Dismiss, finding that there is not At this time sufficient basis to require the Defendants to submit to arbitration, and that Plaintiff has failed to alleged sufficient facts to establish the applicability of the Defendants' uninsured motorist coverage.' (Emphasis supplied)

Appellant's position is as follows: In 1973, the Florida legislature modernized and expanded uninsured motorist coverage to make such coverage applicable in a factual situation such as that presented in the case at bar. At that time, the Uninsured Motorist Statute was amended to include the concept of 'underinsured motorist coverage.' Basically, such concept classifies a motor vehicle as an 'uninsured motor vehicle' if there is liability insurance coverage for the offending vehicle, but the limits of liability insurance are less than the uninsured motorist coverage limits applicable to the innocent injured person. The pertinent statutory section provides:

'(2) For the purpose of this (uninsured motorist) coverage, the term 'uninsured motor vehicle' shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:

'(b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured...