Kobert v. Zarem, 82-717

• Decision Date: 07 September 1983
• Docket Number: No. 82-717,82-717
• Citation: 437 So.2d 730
• Parties: Jay Stuart KOBERT, et al., Appellants/Cross Appellees, v. Robert J. ZAREM, et al., Appellees/Cross Appellants.
• Court: Florida District Court of Appeals

Page 730

437 So.2d 730

Jay Stuart KOBERT, et al., Appellants/Cross Appellees, v. Robert J. ZAREM, et al., Appellees/Cross Appellants.

No. 82-717.

District Court of Appeal of Florida Fourth District.

Sept. 7, 1983.

Motion for Rehearing and/or to Certify Conflict Denied Oct. 3, 1983.

J.J. Simons and Nancy Little Hoffmann, Fort Lauderdale, for appellants/cross appellees.

Richard A. Sherman of Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, Miami, for appellee/cross appellant, Aetna Cas. & Surety Co.

BERANEK, Judge.

This is an appeal by an insured contesting the amount of uninsured motorist coverage and a cross appeal by an insurer contesting the existence of any coverage. We affirm as to coverage and reverse as to the amount.

On May 1, 1979, appellant, Norman Kobert, selected uninsured motorist coverage benefits of $10,000/20,000 on a policy which became effective six days later. On June 22, 1979, he added a third automobile and a fourth driver to his policy increasing his premium by $186. At this time, Aetna did not offer Mr. Kobert the opportunity to increase his uninsured motorist limits to equal the $500,000 bodily injury protection which he carried. Approximately one year later, his son, Jay, was injured when the uninsured moped ¹ he was operating collided with a vehicle operated by a motorist who carried liability insurance of only $10,000. Mr. Kobert and his son sued the tortfeasor, his insurer, and Aetna. They settled with the tortfeasor and his insurer for the policy limits. The suit against Aetna proceeded on the grounds that Mr. Kobert had not rejected uninsured motorists limits in an amount equal to his liability coverage. Aetna affirmatively defended claiming that the policy specifically excluded uninsured motorist coverage where an insured was operating a vehicle owned by the insured and not covered under the policy. Furthermore Aetna affirmatively alleged that Mr. Kobert had executed a waiver accepting uninsured motorist benefits of $10,000/20,000.

Two issues were tried before the trial court: (1) whether the policy afforded any underinsured motorist protection to the minor son for the injuries sustained in this accident; and (2) if any coverage was afforded, the amount of said coverage. As to the first issue, Aetna took the position that under the exclusionary provision of the policy coverage was negated. The court rejected that argument and found coverage under the Aetna policy for underinsured motorists benefits. This ruling is the basis of Aetna's cross appeal. As to the second issue, the Koberts argued that the insurance policy was substantially and materially changed by the addition of the new vehicle and driver and that the policy in effect on the date of the accident was a "new" rather than a "renewal" policy. According to the Koberts, Aetna was required at that time to offer uninsured motorists limits in an amount equal to the bodily injury limits. The trial court disagreed and held that the policy was a "renewal" policy. Thus, the court limited coverage to the amount of $10,000 in accordance with Mr. Kobert's initial selection of uninsured motorist limits in that amount. The Koberts appeal this ruling.

Our task has been simplified by two decisions by this court. On the question of coverage, we recently issued our opinion in State Farm Mutual Automobile Insurance Company v. Lewis, 425 So.2d 603, 606 (Fla. 4th DCA 1982), where we held a similar exclusionary provision invalid:

Accepting appellant's basic contention, uninsured motorist...