Hunt v. State Farm Mut. Ins. Co.

• Decision Date: 27 June 1977
• Docket Number: No. DD-431,DD-431
• Citation: 349 So.2d 642
• Parties: Mike HUNT, Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY, and the Hartford Accident and Indemnity Company, Appellees.
• Court: Florida District Court of Appeals

Page 642

349 So.2d 642

Mike HUNT, Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY, and the Hartford Accident and Indemnity Company, Appellees.

No. DD-431.

District Court of Appeal of Florida, First District.

June 27, 1977.

Rehearing Denied Sept. 16, 1977.

James G. Feiber, Jr. and Nancy E. Yenser of Salter, West, Doughtie & Feiber, Gainesville, for appellant.

Richard T. Jones of Jones & Langdon, Gainesville, for appellee.

ERVIN, Judge.

This is a case of first impression in which an insured seeks to stack underinsured motorist coverage policies issued by different insurers.

On November 15, 1974, appellant Hunt, while riding as a passenger in a pickup truck, was badly injured in a one vehicle accident. Hunt entered into a settlement agreement with the driver of the truck and the driver's liability insurer, Florida Farm Bureau, for the applicable policy limits of $10,000. Hunt then filed a complaint for a declaratory judgment seeking to recover under the provisions of two separate automobile liability insurance policies issued to his mother, Wilma Sanders, and to her husband and his stepfather, James Sanders. The mother had a policy with appellee State Farm which provided uninsured motorist coverage limits of $25,000 per person. The stepfather had a policy with appellee Hartford, having uninsured motorist coverage limits of $10,000 per person. Hunt entered into a settlement agreement with State Farm concerning its pro rata share of the total uninsured motorist coverage. Hartford moved to dismiss the complaint and the motion was granted, the court finding in part:

"Florida Statute 627.727 (1973) and the cases construing it allow for the stacking of multiple policies of uninsured motorist coverage which are in excess of the recovery obtained from a third party, but the cases construing the statute have not spoken to the facts of the case at bar wherein Plaintiff was covered by the multiple policies but was not the purchaser or owner of any one of them. See Sellers v. U. S. F. & G., 185 So.2d 689 (Fla.1966); Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla.1973); Sellers v. Government Employees Insurance Co., 214 So.2d 879 (1st DCA Fla.1968); State Farm Mutual Automobile Insurance Company v. White, 330 So.2d 858 (2d DCA Fla.1976).

"In the 1976 session, the Florida legislature revised the No-Fault Law in Florida and pursuant to Section 627.4132 (1976) prohibited stacking of such coverage effective 1 October 1976. The Court is of the opinion that a narrow construction of the present statute allowing stacking is appropriate in view of the expressed legislative intent. Under a narrow construction, the facts of the case at bar as pleaded are distinguishable from the previously cited case wherein stacking was allowed."

It matters not that Hunt did not pay the premiums on the insurance policies. The primary question is whether Hunt is an "insured" or "named insured" under the terms of the policy. Since Mullis v. State Farm Mutual Automobile Insurance Company, 252 So.2d 229 (Fla.1971), an insurance purchaser's family, so long as they are residents of the household, falls within the first class of insureds. As such they are covered by uninsured motorist protection whenever and wherever bodily injury occurs. Since the allegations of the complaint must be accepted as true for purposes of the motion to dismiss, we assume Hunt is a resident of the household and is an insured under both his mother's and stepfather's policies. This shield of protection encompasses him even when riding in another's vehicle. ¹

Since Ch. 73-180, § 4, Laws of Florida, amended § 627.727, Florida Statutes, coverage has been provided for injured persons whose recovery from third party tortfeasors is less than the coverage limits under that injured person's uninsured motorist policy. Further, separate insurance policies providing uninsured motorist coverage can be stacked, utilizing the maximum policy limits of coverage, to determine the total amount by which the uninsured motorist coverage exceeds the recovery afforded by the third party tortfeasor. E. g. State Farm Mutual Automobile Insurance Company v. White, 330 So.2d 858 (Fla.2d DCA 1976); State Farm Mutual Automobile Insurance Company v. Anderson, 332 So.2d 623 (Fla.4th DCA 1976); Government Employees Insurance Company v. Farmer, 330 So.2d 236 (Fla.1st DCA 1976).

The twist here: This is apparently the first case in which an insured attempts to stack policies provided by different insurers. Here, State Farm had a $25,000 limit on uninsured motorist coverage which is clearly in excess of the $10,000 recovered from the tortfeasor's insurer. Hartford, however, has only a $10,000 limit and argues that since it is not in excess of the recovery from the liability insurer, it cannot be liable. It concedes that stacking is permissible where the separate coverages are provided by one insurer. Then the extra coverage is compensated by extra premiums.

We are persuaded however by Mike Hunt's response. Here he would clearly be entitled to $25,000 uninsured motorist coverage if the policies were purchased from the same insurer ($10,000 one policy plus $25,000 second policy= $35,000-$10,000 recovery from tortfeasor= $25,000). If we accept Hartford's argument, only $15,000 coverage would be provided if the policies were purchased from the different insurers (0 from Hartford, $25,000-$10,000 recovery from tortfeasor= $15,000 recovery from State Farm). In both cases the insured purchased exactly the same amount of insurance coverage. This result is contrary to principles set forth in the above opinions.

Bound as we are by stare decisis, we cannot affirm on the basis of "public policy" We therefore reverse the trial court's determination. Hartford is not,...