Gilligan v. Liberty Mut. Ins. Co., 71--219

• Decision Date: 07 August 1972
• Docket Number: No. 71--219,71--219
• Citation: 265 So.2d 543
• Parties: Katherine GILLIGAN et al., Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 543

265 So.2d 543

Katherine GILLIGAN et al., Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.

No. 71--219.

District Court of Appeal of Florida, Fourth District.

Aug. 7, 1972.

Rehearing Denied Sept. 6, 1972.

Robert C. Lane, and Kenneth L. Ryskamp, of Bolles, Goodwin, Ryskamp & Ware, Miami, and Abrams, Anton, Robbins, Resnick & Burke, Hollywood, for appellants.

Thomas B. Mimms, Jr., of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellee.

MAGER, Judge.

This is an appeal from a final summary judgment finding that the appellants, defendants below, were not entitled to coverage under the uninsured motorists provisions of the policy between the defendant Gilligan and the appellee, Liberty Mutual Insurance Company, plaintiff below.

Katherine Gilligan, Lewis Well and his wife, Elizabeth Well, were involved in an automobile accident with an uninsured motorist. Mrs. Gilligan and Mrs. Well are sisters. At the time of the accident Mrs. Gilligan was driving and Mr. and Mrs. Well were riding as passengers in an automobile owned by Mr. Well (and insured by a company Other than Liberty Mutual). Liberty Mutual had previously issued an insurance policy to Mrs. Gilligan insuring her own automobile (one other than the vehicle involved in the accident in question). The insurance policy issued to Mrs. Gilligan provided uninsured motorists coverage. For approximately ten months prior to the accident in question Mr. and Mrs. Well lived with Mrs. Gilligan in her house having previously sold their home and having been in the process of having a new home built.

The basis for holding that defendants were entitled to no coverage under the uninsured motorists provision of the policy between Gilligan and Liberty Mutual is reflected in the following portion of the final judgment:

'3. The policy of insurance issued by Liberty Mutual Insurance Company contains a valid provision that coverage does not apply to an automobile not insured under the policy which is owned by, or furnished or available for the regular use of the named insured or any resident of the same household, and that the exclusion fits the facts of this case.'

The policy provision referred to in the above quoted portion of the final judgment appears in the Liberty Mutual policy under the heading Exclusions and provides:

'This policy Does not apply:

'Under the Uninsured Motorists Coverage,

(q) to bodily injury to an Insured while occupying a highway vehicle (other than an insured automobile) Owned by the named insured or by any person resident in the same household who is related to the named insured by blood, marriage or adoption, or through being struck by such a vehicle; . . .' (Emphasis added.)

The record irrefutably shows that Mrs. Gilligan (insured) was injured while occupying an automobile (other than her own insured automobile) and that the automobile was owned by Mr. Well who was a resident in the same household and who was related to Mrs. Gilligan by marriage (brother-in-law).

As the trial court correctly observed the exclusionary provision fits the facts of this case. However, it is our opinion that under the rationale of Mullis v. State Farm Mutual Automobile Insurance Co., Fla.1971, 252 So.2d 229, and Travelers Indemnity Company v. Powell, Fla.App.1968, 206 So.2d 244, the exclusionary clause is invalid insofar as it restricts uninsured motorists coverage.

In Travelers the First District pointed out that the uninsured motorists statute (F.S. § 627.0851) establishes a public policy of the state that every insured is entitled to recover against the offending motorist just as if the offending motorist had maintained a policy of liability insurance. The court further declared that such public policy is violated 'by any restrictive language inserted in an insurance policy having the effect of defeating the purpose and intent of the statute, and such provisions must be considered nugatory and void'. Observing further, the First...