First Nat. Ins. Co. of America v. Devine

CourtCourt of Appeal of Florida (US)
Citation211 So.2d 587
Docket NumberNo. 7282,7282
PartiesFIRST NATIONAL INSURANCE COMPANY OF AMERICA, a Washington Corporation, Appellant, v. Jean Ann DEVINE and Allstate Insurance Company, an Illinois Corporation, Appellees.
Decision Date17 May 1968

Grimes, Grimes, Goebel, Parry & Blue, Bradenton, for appellant.

Icard, Merrill, Cullis & Timm, Sarasota, for appellee, Jean Ann Devine.

Paderewski, Cramer, Robinson, Ginsburg & Ross, Sarasota, for appellee, Allstate Ins. Co.

LENFESTEY, JAMES A., Associate Judge.

This is a suit for a declaratory decree which seeks determination of rights with respect to uninsured motorist coverage under automobile insurance issued with an endorsement excluding drivers under the age of 25 years.

On January 1, 1964, the appellee (hereinafter referred to as plaintiff), Jean Ann Devine, on that date under 25 years of age, was operating an automobile owned by one John Wimbish, who was an occupant of the automobile at the time. Mr. Wimbish was an insured of appellant (hereinafter referred to as defendant), First National Insurance Company of America.

This vehicle was struck by an automobile owned and operated by Esther Irene Veals and the plaintiff suffered personal injuries as a result of this collision.

Esther Irene Veals had been insured by Allstate Insurance Company for the period January 25, 1962 to January 25, 1963. No premium for renewal of the policy for the succeeding year had been paid, and no other automobile insurance coverage purchased.

Plaintiff made Allstate Insurance Company a party defendant in her suit.

The lower court found the following:

1. Allstate Insurance Company had no automobile liability insurance covering Esther Irene Veals in force on the date of the collision and Esther Irene Veals was an uninsured motorist.

2. The negligence of Esther Irene Veals was the sole cause of the accident.

3. The plaintiff was insured under the terms of the policy of the defendant, First National Insurance Company of America, at the time of the accident and is entitled to recover for bodily injury under the uninsured motorist provision of that policy.

On this appeal the defendant, First National Insurance Company of America, challenges the first and third rulings of the lower court as we have summarized them.

This court will consider the questions in the same order established by the trial court's findings.

On the matter respecting the position of Allstate Insurance Company hereunder, we find that no contract existed between said Allstate and Esther Irene Veals at the time of the accident. The previous coverage had expired over 11 months prior to the collision in question, and the evidence clearly shows that neither Allstate nor Esther Irene Veals believed current coverage existed at the time of the collision. When the situation arises where there are no prime parties to a purported contract, there cannot be, in our judgment, secondary parties or third parties or strangers, if you will, who can seek benefits under this non-existent contract.

No party to this appeal has disputed the lower court's finding with respect to Esther Irene Veals' negligence being the sole cause of the collision and injury. This fact is noted here for the reason that it forms the base for our holding on the next point.

The automobile insurance policy written by the defendant, First National Insurance Company of America, giving coverage, including uninsured motorists protection, to John Wimbish carried with it an endorsement reading in part:

'Notwithstanding any contrary provision in the policy, insurance for bodily injury liability and property damage liability shall not apply to any person under the age of 25 who is not a member of the named insured's family, related by blood, marriage or adoption.'

The position taken by courts of this State, and by courts of other States, makes it clear that restriction upon the coverage provided by uninsured motorists provisions of automobile insurance policies is against public policy and is void. Nat'l Automobile Insurance Assoc. v. Brumit, Fla.1957, 98 So.2d 330; Sellers v. United States Fidelity & Guaranty Co., Fla.1966, 185 So.2d 689; Travelers Indemnity Co. v. Powell, Fla.App.1968, 206 So.2d 244; Butts v. State Farm Mutual Automobile Insur. Co., Fla.App.1968, 207 So.2d 73; Tuggle v. Government...

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25 cases
  • Weingarten v. Allstate Ins. Co.
    • United States
    • Connecticut Supreme Court
    • September 16, 1975
    ...283 F.Supp. 384, 388 (E.D.Ark.), aff'd sum nom. Vaught v. State Farm Fire & Casualty Co., 413 F.2d 539; First National Ins. Co. of America v. Devine, 211 So.2d 587, 589 (Fla.App.); Buck v. United States Fidelity & Guaranty Co., 265 N.C. 285, 144 S.E.2d 34; Touchette v. Northwestern Mutual I......
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    • United States
    • D.C. Court of Appeals
    • January 8, 1998
    ... ... The question is one of first" impression in this jurisdiction. We answer it in the affirmative ...  \xC2" ... Riggs Nat'l Bank v. District of Columbia, 581 A.2d 1229, 1253 (D.C. 1990) ( Riggs I ...         Florida: [*] First Nat'l Ins. Co. v. Devine, 211 So.2d 587 (Fla. Dist. Ct. App. 1968) (recovery of fees incurred at ... ...
  • Britton v. Safeco Ins. Co. of America
    • United States
    • Washington Supreme Court
    • October 3, 1985
    ...not contemplate a piecemeal whittling away of liability for injuries caused by uninsured motorists. First Nat'l Ins. Co. of America v. Devine, 211 So.2d 587, 589 (Fla.Dist.Ct.App.1968); Touchette v. Northwestern Mut. Ins. Co., Finney v. Farmers Ins. Co., 92 Wash.2d 748, 751-52, 600 P.2d 127......
  • Touchette v. Northwestern Mut. Ins. Co., 42062
    • United States
    • Washington Supreme Court
    • March 2, 1972
    ...its manifest purpose. This principle, variously stated in other jurisdictions, was so declared in First Nat. Ins. Co. of America v. Devine, 211 So.2d 587, 589 (Fla.App.1968): The position taken by courts of this State, and by courts of other States, makes it clear that restriction upon the ......
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