Ivey v. Chicago Ins. Co.
| Decision Date | 11 February 1982 |
| Docket Number | No. 57129,57129 |
| Citation | 410 So.2d 494 |
| Parties | Carolyn IVEY, Petitioner, v. CHICAGO INSURANCE COMPANY, Respondent. |
| Court | Florida Supreme Court |
James M. Barton, II of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for petitioner.
Robert P. Gaines of Beggs & Lane, Pensacola, for respondent.
By petition for certiorari, we have for review a decision of the District Court of Appeal, First District, (Ivey v. Chicago Insurance Co., 372 So.2d 473 (Fla. 1st DCA 1979)), which allegedly conflicts with another district court of appeal decision, (United States Fidelity and Guaranty Company v. Curry, 371 So.2d 677 (Fla. 3d DCA 1979)), on the same point of law. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).
Petitioner, Carolyn Ivey (hereinafter petitioner), was a passenger on a motorcycle, owned and operated by William Vereeke, which was involved in an accident with an automobile owned and operated by Theodore Kast. At the time of the accident, the motorcycle was insured by respondent, Chicago Insurance Company, (hereinafter respondent), with liability coverage limits of $100,000 per person and $300,000 per accident. The Kast vehicle was insured with limits of $15,000 per person and $30,000 per accident.
Petitioner filed suit in circuit court seeking a declaratory judgment establishing that she had available, from respondent, uninsured motorist coverage in the amount of $100,000. Respondent's answer denied that the policy which it issued to Mr. Vereeke provided uninsured motorist coverage in such amount, and claimed that as to petitioner, the Kast vehicle was not an uninsured motor vehicle as that term is defined in section 627.727(2)(b), Florida Statutes (1975).
The trial court herein, on a motion by respondent for judgment on the pleadings, entered final judgment in favor of respondent, basing its decision upon the holding of Government Employees Insurance Company v. Taylor, 342 So.2d 547 (Fla. 1st DCA), cert. denied, 353 So.2d 680 (Fla.1977). The District Court of Appeal, First District, affirmed the trial court in a per curiam decision without opinion. For the following reasons we quash the decision of the district court.
Florida law requires that all automobile liability insurance policies delivered or issued for delivery in this state include coverage for any bodily injury loss of the insured caused by the negligence of an uninsured motorist. See § 627.727, Fla.Stat. At the time that this cause arose, the term "uninsured motor vehicle" was defined to include "an insured motor vehicle when the liability insurer thereof ... (h)as provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist's coverage." See § 627.727(2)(b), Fla.Stat. (1975). The uninsured motorist provision thus also provided protection from underinsured motorists as well as from those with no insurance.
Petitioner asserts that in determining the "limits applicable to the injured person (in this case, petitioner) provided under his uninsured motorist's coverage", the words "his uninsured motorist's coverage" refer to the uninsured motorist coverage of another person's policy of which the injured is a beneficiary as well as to the uninsured motorist coverage of the injured's own policy. In simpler terms, petitioner's position is that she may "stack" the uninsured motorist coverages of Mr. Vereeke's policy and her own (of which we assume there is none), when computing the uninsured motorist coverage available to her. Thus, argues petitioner, the limit of her uninsured motorist coverage is $100,000 (the amount available under Mr. Vereeke's policy), said amount exceeds the limits of Mr. Kast's liability policy (making Kast an uninsured motorist as defined in section 627.727(2)(b), Florida Statutes (1975)), and petitioner is entitled to the uninsured motorist coverage of Mr. Vereeke's policy.
Respondent, on the other hand, claims first, that the uninsured motorist coverage under the policy which it issued to Mr. Vereeke is limited to $15,000 per person and $30,000 per accident, and second, that, as to petitioner, Mr. Kast does not qualify as an uninsured motorist. In support of its second claim, respondent cites the decision in Taylor for the proposition that in computing her uninsured motorist coverage, petitioner may not include the uninsured motorist coverage available under Mr. Vereeke's policy. As noted before, both the trial court and the district court agreed with respondent, each citing Taylor in its opinion.
In Taylor, the injured party, Taylor, whose personal insurance had limits of $10,000 for injury to one person in one accident, was involved in a collision with a third party whose insurance had the same limits. At the time of the accident, however, Taylor was driving a vehicle owned by Jones, whose insurance had limits of $50,000 for one person in one accident. Taylor contended that the $10,000 coverage of his policy could be stacked on the $50,000 coverage of Jones' policy, thereby causing his uninsured motorist coverage to exceed the liability coverage of the third party, and entitling him to recover uninsured motorist benefits of up to $60,000 from his and Jones' insurance companies. The district court held that section 627.727(2)(b), Florida Statutes (1975), does not permit such stacking.
According to the Court in Taylor, the words "his uninsured motorist's coverage" refer to the coverage of the policy issued to the injured party and do not include the uninsured motorist coverage of another person's policy of which the injured, by having occupied the vehicle at the time of the accident, happens to be a beneficiary. The district court reasoned that "(s)uch other person's policy is that person's uninsured motorist coverage which that person, rather than the injured person, has purchased." Taylor at 548. We, however, disagree with the holding in Taylor, and are of the opinion that the words "his uninsured motorist's coverage" refer to the uninsured motorist coverage of another person's policy of which the injured party happens to be a beneficiary as well as to the uninsured motorist coverage of the injured's own policy.
We note, initially, that three recent district court decisions have rejected the holding in Taylor. See Cox v. State Farm Mutual Automobile Insurance Company, 378 So.2d 330 (Fla. 2d DCA 1980); Lezcano v. Leatherby Insurance Company, 372 So.2d 214 (Fla. 4th DCA 1979); and, United States Fidelity and Guaranty Company v. Curry, 371 So.2d 677 (Fla. 3d DCA 1979). The preceding three cases held that the words "his uninsured motorist's coverage" "refer to any uninsured motorist coverage which is otherwise available to the injured party." Cox at 332. Thus, according to those cases, petitioner would be entitled to stack her and Mr. Vereeke's uninsured motorist coverages in determining whether Mr. Kast is an "uninsured motorist" under the provisions of section 627.727(2)(b), Florida Statutes (1975). Although we are not bound by the district court decisions above, two points convince us that they reach the proper result.
First, if the tortfeasor here had no liability insurance, petitioner clearly would be entitled to stack the uninsured motorist coverages of her policy and Mr. Vereeke's policy. We so held in Sellers v. United States Fidelity and Guaranty Co., 185 So.2d 689 (Fla.1966). Subsequent to that decision, chapter 71-88, Laws of Florida, broadened the definition of uninsured motorist coverage to provide protection not only from those who are uninsured, but also from those who, like Mr. Kast, are underinsured. See Williams v. Hartford Accident and Indemnity Co., 382 So.2d 1216 (Fla.1980).
Like the district court in Cox, we do not believe that when the legislature amended the law, broadening the definition of uninsured motorist to include those who are underinsured, it intended that distinctions be made between...
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