Brown v. Progressive Mut. Ins. Co.

• Decision Date: 09 June 1971
• Docket Number: No. 39397,39397
• Citation: 249 So.2d 429
• Parties: Raiford BROWN, Petitioner, v. PROGRESSIVE MUTUAL INSURANCE COMPANY, Respondent.
• Court: Florida Supreme Court

Page 429

249 So.2d 429

Raiford BROWN, Petitioner, v. PROGRESSIVE MUTUAL INSURANCE COMPANY, Respondent.

No. 39397.

Supreme Court of Florida.

June 9, 1971.

Rehearing Denied July 6, 1971.

David R. Lewis, of Blalock, Holbrook, Lewis, Paul & Bennett, Jacksonville, for petitioner.

Howell, Kirby, Montgomery & D'Aiuto, Jacksonville, for respondent.

ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, First District (Progressive Mutual Insurance Company v. Brown, 229 So.2d 645), which allegedly conflicts with a prior decision of the District Court of Appeal, Third District (Butts v. State Farm Mutual Automobile Ins. Co., 207 So.2d 73), on the same point of law. Fla.Const., art. V, § 4, F.S.A. This case involves application of Fla.Stat. § 627.0851, F.S.A., the uninsured motorist statute, to a hit-and-run accident.

We have jurisdiction. In the Butts case, a motorist was run off the road and into a utility pole by a hit-and-run driver, and the injured motorist's insurance policy contained the standard clause limiting liability to those cases where the hit-and-run driver made physical contact with the insured or the vehicle in which the insured was riding. In view of the uninsured motorist statute, the insured was held to be covered.

In the instant case, the injured petitioner's vehicle was run off the road by a hit-and-run driver, but it is not known that physical contact was made between the two vehicles. By application of the policy requirement of physical contact, the District Court of Appeal concluded that the injured person was not entitled to a recovery; this reversed the ruling of the trial court, which found that the restrictive clause was void as against public policy, being an attempt to restrict the language of Fla.Stat. § 627.0851, F.S.A, the uninsured motorist statute.

The purpose of the uninsured motorist statute is to protect persons who are injured or damaged by other motorists who in turn are not insured and cannot make whole the injured party. The statute is designed for the protection of injured persons, not for the benefit of insurance companies or motorists who cause damage to others. The effect of the District Court of Appeal decision here for review is to place on the injured person in every case the burden of proving that the offending party was without insurance regardless of the circumstances, the equities or the difficulties. Failure on the part of the injured party to make such proof results in nonrecovery, and the certainty that in some cases at least, injured persons then become the burden of society or of the state, despite their attempt to protect themselves by purchase of insurance intended to shield them against damages inflicted by a party from whom recovery cannot be made in person or through his insurance.

In deciding whether a person is entitled to the protection of Fla.Stat. § 627.0851, F.S.A., the question to be answered is whether the offending motorist has insurance available for the protection of the injured party, for whose benefit the statute was written; the test should not be simply whether or not the injured party can prove the offending party was uninsured, which is, in many instances, impossible in hit-and-run cases. Any other construction of the statute is unfair and unduly restricts the application intended by the Legislature.

The argument that the policy requirement of physical contact is reasonable is fallacious. The only reason for such a requirement is to prove that the accident actually did occur as a claimant may say it did. This is a question of fact to be determined by the jury, or the judge if demand for jury trial is not made. If the injured party can sustain the burden of proof that an accident did occur, he should be entitled to recover, regardless of the actuality of physical contact. If twenty witnesses will swear they saw the accident happen, their testimony should not be deemed worthless, as it would be under the decision here for review.

The decision of the District Court of Appeal is quashed, and the cause is remanded to the District Court of Appeal with instructions to reinstate the judgment of the trial court.

ERVIN, CARLTON, and McCAIN, JJ., concur.

DEKLE, J., dissents with opinion.

ROBERTS, C.J., and BOYD, J., dissent.

DEKLE, Justice (dissenting):

The conflict basis on which petitioner seeks review may at first blush seem to be present in the case of Butts v. State Farm Mutual Automobile Ins. Co., 207 So.2d 73 (3d DCA Fla.1968), but upon close analysis it will be seen that it is not. Neither is there conflict with the other authorities urged to bestow jurisdiction.

This case deals with the 'hit-and-run' provision under the uninsured motorist clause of automobile policies where it is provided that the coverage will extend to hit-and-run automobiles if bodily injury arises out of Physical contact with such other alleged hit-and-run vehicle. No such physical contact was shown in the present case, and that is why it was reversed in a very well-reasoned opinion by the eminent Donald K. Carroll, Judge of our highly regarded First District Court of Appeal.

Butts at first appears in conflict because it recites a portion of the policy which included the 'hit-and-run' provisions, but, it is not the 'physical contact' provision that is dealt with. Instead, Butts says that the language under that particular policy was 'unique and distinguishable' when compared with common automobile casualty policies. The clause before us Here seems to be the Usual one.

The Reserve Company policy in Butts covered a Vespa Motor Scooter and its language made a point of covering only collisions between an uninsured 'automobile or motorcycle with the insured or with a Motorcycle (not an automobile) which the insured is occupying at the time of the accident. * * *' (Emphasis added.) The statute applies to All motor vehicles--not just the type that is insured, which in the Reserve policy was a motorcycle. The Court there correctly held in accordance with Travelers Indemnity Co. v. Powell, 206 So.2d 244 (1st DCA Fla.1968), that:

'(I)t is not the intent of the statute to limit coverage to an insured by specifying his location or the particular vehicle he is occupying at the time of injury. * * *'

In Butts the opinion pointed out (207 So.2d p. 76) that the Reserve Company policy fell within the purview of Fla.Stat. § 627.0851, F.S.A., as a policy 'covering liability arising out of the ownership, maintenance, or use of Any motor vehicle,' (Emphasis added.) and then says:

'This leads to the inescapable conclusion that the case of Travelers Indemnity Company v. Powell, supra, is equally dispositive of This issue. At the risk of being repetitious, we again quote from the Powell case, supra. * * *' (Emphasis added.)

The opinion then states the proposition earlier given (and quoted above...