Harris v. U.S. Fidelity & Guaranty Co., 77-1081

• Decision Date: 15 March 1978
• Docket Number: No. 77-1081,77-1081
• Citation: 569 F.2d 850
• Parties: Vivian HARRIS, etc., Plaintiff-Appellee, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a Foreign Corp., Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 850

569 F.2d 850

Vivian HARRIS, etc., Plaintiff-Appellee, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a Foreign Corp. Defendant-Appellant.

No. 77-1081

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

March 15, 1978.

Jeanne Heyward, William J. Flynn, Miami, Fla., for defendant-appellant.

George A. Kokus, Edward A. Perse, Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GOLDBERG, AINSWORTH, and HILL, Circuit Judges.

PER CURIAM:

The Florida Insurance Code provides that certain automobile liability insurance policies issued in Florida must provide uninsured motorist coverage with limits equal to the insured's liability limits. The statute further provides that the insured may "reject" such coverage. West's F.S.A. § 627.727(1). Pursuant to its statutory authority to "make reasonable rules and regulations necessary for or as an aid to the effectuation of any provision of (the Insurance Code)," West's F.S.A. § 624.308(1), the Florida Department of Insurance issued a regulation requiring that an insured's rejection of increased uninsured motorist coverage be in writing and be maintained in the insurance company's file. Bulletin No. 586. In the case on appeal, Stanley Harris, a named insured under a policy issued by the appellant insurance company, was killed when his car collided with a stolen vehicle. His personal representative, the appellee in the case on appeal, filed a complaint for declaratory relief against the appellant insurance company. The appellee alleged that the appellant's liability to the appellee is $100,000, though the decedent's insurance policy provided for only $10,000 uninsured motorist coverage, because the decedent's insurance policy provided for $100,000 bodily injury liability coverage and the decedent never executed a written waiver of that amount of uninsured motorist coverage. The appellant insurance company admits that the appellee would be entitled to claim $100,000 coverage if the Department of Insurance regulation were valid. The appellant argues, however, that the Department of Insurance regulation is void because § 627.727(1) does not require a written rejection and, therefore, the regulation impermissibly conflicts with or modifies that statute. We affirm the district court's declaratory judgment that the regulation is valid and that the appellee is entitled to make a claim for uninsured motorist coverage in the amount of $100,000.

The appropriate standard of review for an administrative regulation is whether it is "reasonably related to the purposes of the enabling legislation." Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1661, 36 L.Ed.2d 318 (1973); Thorpe v. Housing Authority, 393 U.S. 268, 280-81, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). Florida courts have stated that § 627.727 "evolves from public policy considerations and must be broadly and liberally construed to accomplish this purpose. Conversely, that portion of the statute permitting rejection of uninsured motorist coverage detracts from the public policy considerations and must therefore be narrowly and strictly construed." Weathers v. Mission Insurance Co., 258 So.2d 277, 279 (Fla.3d DCA 1972), and cases cited therein. The Department of Insurance regulation clearly aids effectuation of § 627.727(1). The regulation operates to avoid the situation presently before this court, in which the insurance company claims that the named insured, who was killed, verbally rejected increased uninsured motorist coverage. This situation can create serious problems of proof. The person entitled to the proceeds of the insurance policy, for example, may have no means by which to rebut the insurance agent's contention that the decedent waived increased coverage. Therefore, we hold this regulation to be valid, and we hold that the appellee is entitled to $100,000 limits of uninsured motorist...