General Acc. Fire & Life Assur. Corp., Ltd. v. Means
| Decision Date | 06 September 1978 |
| Docket Number | No. 78-230,78-230 |
| Citation | 362 So.2d 135 |
| Parties | GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LTD., Appellant, v. Frances D. MEANS, Individually and as Executrix and Personal Representative of the Estate of Henry L. Means, Deceased, Appellee. |
| Court | Florida District Court of Appeals |
Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellant.
J. Michael Rooney of Safron & Rooney, Punta Gorda, for appellee.
Appellee was injured and her husband killed when their automobile collided with an automobile driven by Henry Greenberg and owned by Carl Gorr. Greenberg, whose negligence was the sole cause of the accident, had no liability insurance. Gorr, however, had liability insurance covering his automobile issued by Hartford Accident and Indemnity Company with liability limits of $10,000/$20,000. Appellee and her husband were insured under a policy issued by appellant which provided uninsured motorist coverage to the extent of $10,000/$20,000 limits of liability. The issue is whether the Gorr automobile was an uninsured motor vehicle within the meaning of the applicable Florida statute requiring uninsured motorist coverage or within the meaning of the uninsured motorist provisions of appellee's policy. The parties agree that the applicable Florida statute is Section 627.727 (1972), prior to amendments in 1973 which added the concept of underinsured motorist coverage.
Appellant brought this declaratory judgment action seeking a determination that there was no uninsured motorist coverage available to appellee and her husband under their policy as a result of the accident in question. After a nonjury trial, the trial judge entered a declaratory judgment for appellee. This appeal followed; we reverse.
Prior to this suit, appellee had filed a negligence suit against Greenberg, Gorr and Hartford seeking damages resulting from the accident. Appellant intervened in that action for the sole purpose of securing its lien for personal injury protection (PIP) benefits paid. The negligence suit was settled by appellee and the defendants named in that suit for the sum of $9,000 and, pursuant to that settlement, appellee executed general releases to all defendants in the suit. Thereafter appellant joined with all the parties to the negligence suit in executing a stipulation for dismissal which recited that "all matters at issue herein have been amicably settled except for . . . the issue of uninsured motorist coverage between (appellee) and (appellant)."
Thereafter appellee filed a demand for arbitration under her policy issued by appellant, asserting a claim under the uninsured motorist coverage. The present suit resulted.
The parties put forth competing arguments based upon their interpretations of the legal effect of the settlement with Greenberg, Gorr and Hartford. Appellee contends that the settlement did not determine the issue of coverage under Gorr's policy with Hartford. That is the meaning ascribed by appellee to the exception in the stipulation for dismissal as to "the issue of uninsured motorist coverage between (appellee) and (appellant)." We gather that there was some question raised in the negligence suit as to whether the driver, Greenberg, had permission from the owner, Gorr, to operate the vehicle. Appellee seems to feel that this issue, which would negate coverage under the Hartford policy issued to Gorr, was not determined in the negligence suit and is present in this suit.
There is no issue here as to coverage under Gorr's policy with Hartford. Appellant's complaint in this action alleged that there was liability insurance coverage available to Greenberg and Gorr with respect to the accident in question. Appellee's answer expressly admitted that allegation. Thus this case is distinguishable from McInnis v. State Farm Mutual Automobile Ins. Co. 208 So.2d 481 (Fla. 4th DCA 1968), cited by appellee. In McInnis, suit was brought against an uninsured driver, the owner of the vehicle, and the owner's liability insurer. The owner's insurer denied coverage because of the nonconsented to use of the vehicle by the driver. Notwithstanding, but maintaining its position, the insurer settled with the plaintiffs in that suit for a sum of money which it paid to them. The McInnis court expressed doubt whether that settlement conclusively established as a matter of law that there was liability insurance coverage of the vehicle, for purposes of determining an uninsured motorist claim. In this case, appellee has simply foreclosed herself from the benefit of that argument by admitting coverage in her pleadings.
Appellant, for its part, argues that appellee's settlement with Greenberg, Gorr and Hartford bars appellee's claim for uninsured motorist benefits because appellee's policy expressly excludes coverage when "any person entitled to payment under this coverage shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor."
Appellee counters with two arguments. First, appellee asserts that appellant's execution of the stipulation for dismissal of the negligence suit constituted a consent by appellant to the settlement with Greenberg, Gorr and Hartford. Secondly, appellee argues that appellant was not in fact prejudiced by that settlement.
It is unnecessary for us to reach these issues concerning the applicability of the exclusionary clause. We hold that there is no coverage available to appellee under the uninsured motorist provisions of her policy because the Gorr automobile was not an uninsured motor vehicle.
Appellee insists upon use of the words "uninsured motorist," reasoning that since the driver, Greenberg, was admittedly uninsured,...
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