Fidelity & Cas. Co. of New York v. Streicher, 86-2074
| Decision Date | 01 May 1987 |
| Docket Number | No. 86-2074,86-2074 |
| Citation | 12 Fla. L. Weekly 1143,506 So.2d 92 |
| Parties | 12 Fla. L. Weekly 1143 FIDELITY & CASUALTY COMPANY OF NEW YORK, a foreign corporation, Appellant, v. Susan STREICHER, Appellee. |
| Court | Florida District Court of Appeals |
George A. Vaka of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellant.
David L. Levy, Largo, for appellee.
The appellee (the plaintiff) was injured in an automobile accident on May 17, 1985. At the time of the accident, she was a passenger in her family's Datsun automobile, which was being driven by a permissive user, Richard Todd Conger. Conger's negligence was the sole proximate cause of the accident. As a result of the accident, the plaintiff sustained serious personal injuries.
Prior to the accident the appellant (Fidelity) had issued a policy of insurance to the plaintiff's parents which provided liability and uninsured motorist coverage on three family vehicles including the Datsun involved in the accident. The policy provided liability coverage for all permissive users of any insured vehicle. Conger, who had no other insurance, was insured under the policy by virtue of the omnibus insured clause. Fidelity paid the plaintiff its liability policy limits of $100,000.
Fidelity's policy also included underinsured motorist (UM) coverage in the amount of $100,000 for each vehicle insured. However, the policy's definition of uninsured or underinsured motor vehicle excluded any vehicle owned by the insured or a relative.
The plaintiff made a demand for all available UM benefits provided in Fidelity's policy, asserting that her damages exceeded the amount of the liability coverage which she had received. Fidelity denied the UM claim, and the plaintiff filed suit seeking a declaratory judgment that she was entitled to recover both liability and UM benefits under the Fidelity policy. The trial judge found as a matter of law that the plaintiff could avail herself of the UM coverage in the policy and entered final declaratory judgment for the plaintiff. This appeal followed. We reverse.
In State Farm Mutual Automobile Insurance Co. v. McClure, 501 So.2d 141 (Fla. 2d DCA 1987), this court held that a claimant was not entitled to both liability coverage and underinsured motorist coverage under the same policy, where the policy does not permit that result. We found no conflict between the exclusionary language of the policy and section 627.727, Florida Statutes (1983), which applied to the accident involved in that case. Subsequently, the First District Court of Appeal considered a similar situation in Nicholas v. Nationwide Mutual Fire Insurance Co., 503 So.2d 993 (Fla. 1st DCA Mar. 16, 1987). There the claimant recovered liability benefits under a policy issued by Nationwide and then sought underinsured motorist benefits under the same policy, arguing that pursuant to ...
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