Guardado v. Greyhound Rent-A-Car, Inc., RENT-A-CA

• Citation: 340 So.2d 510
• Decision Date: 07 December 1976
• Docket Number: RENT-A-CA,Nos. 76-157,76-405,INC,s. 76-157
• Parties: Oscar GUARDADO and Milagros Guardado, Appellants, v. GREYHOUND, Appellee.
• Court: Court of Appeal of Florida (US)

Page 510

340 So.2d 510

Oscar GUARDADO and Milagros Guardado, Appellants, v. GREYHOUND RENT-A-CAR, INC., Appellee.

Nos. 76-157, 76-405.

District Court of Appeal of Florida, Third District.

Dec. 7, 1976.

Rehearing Denied Jan. 6, 1977.

Luis Stabinski & Associates and Martin Levine, Miami, for appellants.

Preddy, Haddad, Kutner, Hardy & Josephs and T. G. Anagnost, Miami, for appellee.

Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.

HENDRY, Judge.

Appellants were the plaintiffs in the court below and appellee was the defendant.

Appellants bring two separate appeals from the entry of two separate orders of the trial court dated December 23, 1975 and February 4, 1976, respectively. The first order dismissed Count I of appellants' complaint, which sought a declaratory judgment as to uninsured motorist coverage under Section 627.727, Florida Statutes (1975). The second order, addressing itself to appellants' amended complaint, dismissed with prejudice the same Count I found in appellants' complaint. In addition, the second order also stayed proceedings as to Count II of the amended complaint, which sought personal injury protection benefits (p. i. p.), until such time as the Florida Supreme Court granted or denied certiorari in the dispositive case of Greyhound Rent-A-Car, Inc. v. Carbon, 327 So.2d 792 (Fla.3d DCA 1976). By order of this court, dated March 30, 1976, these appeals were consolidated.

On November 27, 1972, appellants were involved in an automobile accident caused by the negligent driving of an uninsured motorist. Appellants had rented their vehicle from appellee and sought uninsured motorist benefits from appellee, pursuant to Section 627.727(1), Florida Statutes (1975). The rental agreement signed by appellants provided for collision insurance coverage, but made no mention of uninsured motorist coverage. Appellee, which had qualified as a self-insured under Section 324,171, Florida Statutes (1975), denied that appellants were due any benefits, claiming that it had unilaterally rejected said coverage by the execution of a waiver.

Appellants also sought personal injury protection benefits (p. i. p.) under the Florida Automobile Reparation Reform Act (No Fault Law). Appellee denied said benefits, taking the position that it was not subject to the provisions of the No Fault Law. Appellee based its position on the contention that a rental car is not a 'motor vehicle' as defined in Section 627.732(1), Florida Statutes (1975).

Appellants contend that, as far as Count I is concerned, the trial court erred in granting appellee's motion to dismiss with prejudice. In support of their contention, appellants point to the terminology of Section 627.727(1), Florida Statutes (1975), (the statutory section that deals with uninsured vehicle coverage) which provides in part:

'. . . that the coverage required under this section shall not be applicable when, or to the extent that, any uninsured named in the policy shall reject the coverage; . . .'

Appellants' basic contention is that appellee could not have effectively rejected the aforementioned uninsured motorist coverage because it was not an 'insured named in the policy.' Appellants, adhering to a literal interpretation of the above statute, argue that appellee, being a self-insured, had no policy of insurance per se, and without a policy of insurance naming appellee as the insured, there could be no effective waiver of coverage.

Appellee responds by stating that the trial court did not err in dismissing appellants' first count in light of our decision in Kohly v. Royal Indemnity Company, 190 So.2d 819 (Fla.3d DCA 1966). The facts of Kohly, supra, are almost identical to the case sub judice. In that case, a lessee of a rental automobile, involved in an auto accident with an uninsured motorist, sought a declaratory judgment as to whether or not be was covered by uninsured motorist insurance. This court held that the rental agent, who was the insured under the policy of insurance in effect at the time of the accident had rejected uninsured motorist coverage offered by the carrier and that the rejection was effective against the lessee. As in the case sub judice, the rejection had not been communicated to the lessee of the vehicle.

Appellants' attempt to distinguish Kohly, supra, from the instant case, on the sole ground of appellee's status as a self-insured is a good effort to circumvent what is admittedly a sore spot in the law. In fact, appellants admit in their brief that, but for appellee's status, the facts of Kohly, supra, would be identical to the instant case and would control.

We...