Golphin v. Home Indem. Co., S--255

• Decision Date: 16 October 1973
• Docket Number: No. S--255,S--255
• Citation: 284 So.2d 442
• Parties: Joyce C. GOLPHIN and Leavitis Golphin, Jr., Individually, and as husband of Joyce C. Golphin, Appellants, v. The HOME INDEMNITY COMPANY, a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

Page 442

284 So.2d 442

Joyce C. GOLPHIN and Leavitis Golphin, Jr., Individually, and as husband of Joyce C. Golphin, Appellants, v. The HOME INDEMNITY COMPANY, a foreign corporation, Appellee.

No. S--255.

District Court of Appeal of Florida, First District.

Oct. 16, 1973.

Rehearing Denied Nov. 15, 1973.

Michael D. Chiumento, Jr., Stern, Bernardini & Chiumento, Daytona Beach, for appellants.

E. Clay Parker, Hoffman, Hendry, Parker, Smith & Anderson, Daytona Beach, for appellee.

WIGGINTON, Judge.

Defendants seek appellate review of a final declaratory judgment rendered against them in which the trial court found that their claim for damages against plaintiff-appellee was not covered by the uninsured motorist provision of the automobile liability insurance policy issued by it.

The controlling facts in this case were stipulated to by all parties and may be summarized as follows. Appellee, Home Indemnity Company, issued its automobile liability insurance policy to one Clara Woods Mitchell covering an automobile owned by her. The insurance policy contained the minimum limits of public liability coverage as required by the financial responsibility law, to wit, $10,000 per person and a maximum of $20,000 for each accident. In addition, the policy also contained the standard uninsured motorist provision carrying the same limits of liability as the public liability coverage expressed in the policy. Appellant, Joyce C. Golphin, was riding as a passenger in the insured vehicle operated by its owner Clara Woods Mitchell, when it collided with another automobile operated by one McDonald in which a passenger, Mrs. Howell, was riding. McDonald and Howell, occupants of the other automobile, both suffered injuries, and claims were made by them against Mitchell and her insurer, appellee herein. As a result of these claims, appellee paid to the claimants, McDonald and Howell, the sum of $10,000 each for an aggregate payout of $20,000 under the public liability provisions of its insurance contract, thereby exhausting the limits of the policy.

Thereafter, appellant, Joyce Golphin, and her husband, Leavitis Golphin, Jr., in his derivative capacity, made claim against appellee under the uninsured motorist provision of the Mitchell insurance policy claiming that since the public liability coverage against which their claim would otherwise be applicable had been exhausted by payments to McDonald and Howell, the Mitchell vehicle was thereby 'uninsured' within the meaning of appellee's insurance contract. Appellee denied coverage and then filed this action seeking a judicial declaration of its rights and obligations under its insurance contract with Mitchell.

The trial court, in the judgment appealed, posed the sole question for determination as follows:

'is a vehicle 'uninsured' under the terms and conditions of the subject insurance contract and Florida Statute § 627.727, where there is applicable liability insurance available at the time of the accident, in the minimum amounts as required by the Florida Financial Responsibility Law, but the limits are subsequently exhausted thereunder by payment to multiple claimants?'

We are of the view that the question posed and decided by the trial court accurately presents the issue of law to be decided in this case. The controlling statute, which requires the inclusion of uninsured motorist coverage in each automobile liability insurance policy issued in this state, describes an uninsured motor vehicle as follows:

(2) 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 where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency. ¹

The insurance contract issued by appellee, in the uninsured motorist provision contained therein, defines an 'uninsured automobile' as follows:

'II. DEFINITIONS (IV)(c) 'uninsured automobile' means: (1) an automobile with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy Applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder; . . ..' (emphasis supplied)

From the foregoing it affirmatively appears that the insurance policy involved in this case against which claim is made by appellants defines an uninsured automobile as one 'in which there is no bodily injury liability insurance policy Applicable at the time of the accident with respect to any person legally responsible for the use of such automobile'. The above-quoted section of the statute defining an uninsured motor vehicle clearly recognizes the right of the insurance carrier to regulate the coverage afforded by it by using the qualifying phrase, '. . . subject to the terms and conditions of such coverage . . .', and further provides that an uninsured motor vehicle within the meaning of the statute also includes one which is in fact insured but where the insurance carrier is unable to make payment on its policy because of insolvency.

From the stipulated facts in this case, the motor vehicle owned by Clara Woods Mitchell, which was covered by the insurance policy issued by appellee, was not an 'uninsured automobile' under the terms of appellee's policy because there was Applicable at the time of the accident bodily injury liability insurance answerable to any claims against the insured (Mitc...