Bulone v. United Services Auto. Ass'n

• Citation: 660 So.2d 399
• Decision Date: 15 September 1995
• Docket Number: No. 94-01984,94-01984
• Parties: 20 Fla. L. Weekly D2144 Lucia BULONE, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
• Court: Court of Appeal of Florida (US)

Page 399

660 So.2d 399

20 Fla. L. Weekly D2144

Lucia BULONE, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.

No. 94-01984.

District Court of Appeal of Florida,

Second District.

Sept. 15, 1995.

Chris M. Limberopoulos of Limberopoulos & Associates, P.A., Tampa, for appellant.

C. Todd Alley and Brenda S. Fulmer of Alley, Ingram & Buckler, Tampa, for appellee.

ALTENBERND, Judge.

Lucia Bulone appeals a final summary judgment denying her claim for uninsured motorist benefits. The trial court ruled that United Services Automobile Association's (USAA) family automobile insurance policy was not statutorily required to insure a family car both as an insured vehicle for purposes of liability coverage and as an underinsured vehicle for purposes of class II uninsured motorist coverage. We affirm the decision and certify conflict with Warren v. Travelers Insurance Co., 650 So.2d 1082 (Fla. 1st DCA), review granted, 658 So.2d 994 (Fla.1995). Neither the legislative policies described in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971), nor recent statutory amendments compel a Florida family to purchase insurance coverage for class II insureds that would often provide better protection than that available for the family's class I insureds.

I. THE FACTS

The facts in this case are comparable to those in Warren. On April 16, 1992, Lucia Bulone sustained serious bodily injuries while a passenger in a pickup truck owned by John A. Moeller and operated by his son, John G. Moeller. Allegedly, the son lost control of the vehicle and collided with a tree.

At the time of the accident, John A. Moeller was insured by USAA. His automobile insurance policy was effective on February 1, 1992, for a term of six months. It insured both the truck and another family car. The policy provided $100,000 per person in bodily injury liability coverage. It also provided $100,000 per person in uninsured motorist coverage.

On May 29, 1992, Ms. Bulone accepted USAA's bodily injury liability limit of $100,000, and signed a release in favor of Mr. Moeller, his son, and USAA. Nevertheless, in January 1993, Ms. Bulone filed this lawsuit alleging that she was also entitled to uninsured motorist benefits as a class II insured under Mr. Moeller's insurance policy with USAA. ¹ USAA answered the complaint and moved for summary judgment, arguing that the claim was barred by the release and also by the policy's definition of "uninsured vehicle." The trial court granted summary judgment on the definition. Thus, we do not address the effect, if any, of Ms. Bulone's release.

II. THE STANDARD "OWNED VEHICLE" LIMITATION ON UNDERINSURED MOTORIST COVERAGE

USAA's policy definition of "uninsured motor vehicle" does not include a vehicle "owned by or furnished or available for the regular use of you or any family member." "You" in a "readable" insurance policy is defined to include the named insured in the declarations and a spouse if a resident of the same household. This "owned vehicle" clause is comparable to the restriction in most policies providing uninsured motorist coverage throughout the United States. Alan I. Widiss, Uninsured and Underinsured Motorist Insurance Sec. 5.4 (2d ed. 1992). In this policy, the clause is included within the definitions in the main body of the policy, form 5000(03) 6-80, an Insurance Services Office standard policy, and in a special endorsement, form 5643(08) Rev. 10-89, entitled "Uninsured Motorists Coverage--Florida (Stacked)." Technically, the "owned vehicle" clause is not an exclusion, but it functions as such.

In a state such as Florida with extensive statutory regulation of stacked uninsured motorist coverage for class I insureds and an authorized exclusion for claims between family members, the "owned vehicle" clause is not used to determine coverage for most claims involving class I insureds. See Reid v. State Farm Fire & Casualty Co., 352 So.2d 1172 (Fla.1977); Brixius v. Allstate Ins. Co., 589 So.2d 236 (Fla.1991). ² Instead, this definition normally is employed to prevent a single insurance policy from treating an owned automobile both as an insured and an uninsured vehicle on claims of class II insureds. This is the context of this case, and we decide the validity of the USAA policy language only as it applies to a class II insured involved in a one-vehicle accident. ³

On three prior occasions, this court has held that the legislature's strong public policy promoting uninsured motorist coverage is not offended by such a limitation in the definition of "uninsured vehicle." See State Farm Mut. Auto. Ins. Co. v. McClure, 501 So.2d 141 (Fla. 2d DCA), review denied, 511 So.2d 299 (Fla.), op. corrected in, 512 So.2d 296 (Fla. 2d DCA 1987); Fidelity & Casualty Co. of N.Y. v. Streicher, 506 So.2d 92 (Fla. 2d DCA), review denied, 515 So.2d 231 (Fla.1987); Peel v. Allstate Ins. Co., 522 So.2d 505 (Fla. 2d DCA 1988). See also Nicholas v. Nationwide Mut. Fire Ins. Co., 503 So.2d 993 (Fla. 1st DCA 1987). ⁴ Ms. Bulone does not ask us to recede from those cases, but rather argues that the legislature intended to increase the coverage available for class II insureds through an amendment in 1989.

III. THE 1989 AMENDMENT

In 1989, the legislature amended section 627.727, in pertinent part, deleting and adding language as follows:

(1) ... The coverage described under this section shall be over and above, but shall not duplicate, the benefits available to an insured ... under any motor vehicle liability insurance coverage; ... and such coverage shall cover the difference, if any, between the sum of such benefits and the damages sustained, up to the maximum amount of such coverage provided under this section. The amount of coverage available under this section shall not be reduced by a setoff against any coverage, including liability insurance. ...

....

(3) For the purpose of this 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 liability for its insured which are less than the total damages sustained by the person legally entitled to recover damages

Ch. 89-243, Sec. 1, at 1024-25, Laws of Fla.

Ms. Bulone argues that this amendment now requires a family automobile policy to provide class II underinsured motorist coverage whenever a passenger's total damages exceed that policy's liability limits. This argument is supported by Warren and also by Travelers Ins. Co. v. Chandler, 569 So.2d 1337 (Fla. 1st DCA 1990). Nevertheless, we do not read the statutory amendment as unambiguously overruling our decisions in McClure, Streicher, and Peel. We further question the reasoning in Chandler, ⁵ and conclude that the legislative history and the public policies supporting the act do not compel an interpretation that requires a car to be treated as both an insured and underinsured vehicle on the same policy for purposes of class II underinsured motorist coverage.

The 1989 amendment does not disclose a clear and unambiguous legislative requirement that an insurance policy provide dual coverage for a class II insured for a claim arising from a one-car accident. The legislature's language creates underinsured motorist coverage by "deem[ing]" an insured vehicle to be an uninsured vehicle when damages exceed the coverage provided by the liability insurer. The result in Warren would be mandated by the legislature only if "the liability insurer thereof" and "its insured" are intended to apply to the uninsured motorist insurer and its insured claimant, in addition to the insurer and insured on a separate policy. The statute has no definitions requiring this interpretation, and it permits the coverage to be "subject to the terms and conditions" of the uninsured motorist policy. After reading the entirety of section 627.727, as amended, it is reasonable to assume that the legislature is referring to two different insurance policies, and is not intending to stack the uninsured motorist coverage on the liability coverage of one policy for the benefit of class II insureds. Although this assumption is reasonable, there is enough ambiguity in the 1989 amendment to warrant an inspection of the legislative history.

IV. THE LEGISLATIVE HISTORY

To fully understand the intent behind the 1989 amendment, one must delve into the lengthy legislative history of section 627.727. In 1961, when uninsured motorist coverage was first enacted in Florida, the act did not require underinsured motorist coverage. See Sec. 627.0851, Fla.Stat. (1961). Underinsured motorist coverage was added to the statutory requirements in the early 1970s. See Williams v. Hartford Accident & Indem. Co., 382 So.2d 1216 (Fla.1980) (interpreting language in the 1971 act to provide this coverage). See also ch. 73-180, Laws of Fla. (expressly adding this coverage).

While uninsured motorist law can sometimes be confusing, underinsured motorist law involves even more complex concepts. Both the legislature and the courts have had difficulty in creating an intelligible and workable approach to the proper relationship between the tortfeasor's liability insurance coverage and the claimant's underinsured motorist coverage. In the legislature, these difficulties have been compounded by the pressures of competing interest groups. A review of the legislative history concerning section 627.727 makes it clear that in 1989, the legislature was attempting to solve problems that had not been adequately resolved in prior legislation. Nothing in this legislative history, however, suggests that the legislature wished to overrule McClure and Streicher or increase the premiums paid by Florida families for class II insureds.

Many of the difficult underinsured motorist issues confronted by the legislature and the courts in the 1980s centered on two problems. The first was whether the...