Kohly v. Royal Indem. Co.

• Decision Date: 18 October 1966
• Docket Number: No. 65--929,65--929
• Citation: 190 So.2d 819
• Parties: Marcos A. KOHLY, Appellant, v. ROYAL INDEMNITY COMPANY, a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

Page 819

190 So.2d 819

Marcos A. KOHLY, Appellant, v. ROYAL INDEMNITY COMPANY, a foreign corporation, Appellee.

No. 65--929.

District Court of Appeal of Florida, Third District.

Oct. 18, 1966.

Fred Patrox and Alfred M. Carvajal, Miami, for appellant.

Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, for appellee.

Before CARROLL and SWANN, JJ., and BOYER, TYRIE A., Associate Judge.

BOYER, TYRIE A., Associate Judge.

The appellant was plaintiff below and the appellee was defendant. In this opinion the parties will be referred to as they stood in the lower court. The material facts are not in dispute.

The plaintiff filed a complaint for declaratory judgment seeking to have determined whether or not he was covered by 'uninsured motor vehicle insurance' when involved in a certain automobile accident on August 19, 1963. He alleged, inter alia, that he had rented an automobile from the Hertz Corporation (which corporation was not a party to the suit below nor to this appeal) and was subsequently injured when the rented vehicle was struck by a negligently operated uninsured motor vehicle. The complaint further alleged the defendant to be the liability insuror of the rented vehicle, and asserted that the liability policy either included uninsured vehicle coverage, or that such coverage was statutorily imposed by Florida Statute 627.0851, F.S.A.

The defendant answered, admitting liability coverage of the subject vehicle at the time of the accident, but alleging that the Hertz Corporation had executed a written rejection of uninsured vehicle coverage prior to the subject accident and that therefore the plaintiff was without such coverage. Defendant attached to its answer was purported to be a true copy of a policy endorsement signed by an Assistant Vice President of the Hertz Corporation by virtue of which the uninsured vehicle coverage had been deleted from the liability policy.

In due course, the defendant moved for summary judgment, filing in support of its motion an affidavit of defendant's Vice President which recited, inter alia, that:

'* * * The Hertz Corporation rejected the uninsured motorists coverage offered to it by the Defendant, Royal Indemnity Company. Said rejection was in the form of an endorsement entitled 'Deletion of Protection Against Uninsured Motorists Coverage' and said endorsement was executed by R. E. Nelson, Vice President of the Hertz Corporation. A copy of said endorsement No. 35 is attached hereto and made a part hereof.

'That from January 1, 1963 to and including August 19, 1963, and subsequent thereto, endorsement No. 35 was in full force and effect and Royal Indemnity Company did not provide uninsured motorist coverage to the Hertz Corporation, or to its renters, including the Plaintiff.'

Attached to said affidavit was a copy of what purported to be a true copy of the rejection endorsement. The defendant also filed, pursuant to an Order to Produce, a true copy of the subject liability insurance policy which also included a copy of the rejection endorsement. Said policy contains the following recitals:

'Item 1. Name and Address of Insured

HERTZ SYSTEM, INC., a Delaware Corporation, THE HERTZ CORPORATION, a Delaware Corporation, and ALL SUBSIDIARY OR ASSOCIATED CORPORATIONS (now existing or hereinafter organized during the period of this policy) of each or all of the foregoing corporations.

'Definition of Insured. The unqualified word 'insured' includes the named insured and also includes (1) any person, firm, association, partnership or corporation to whom an automobile has been rented without a chauffeur by the named insured (herein referred to as the 'renter'); * * *'

In due course the plaintiff filed a motion for partial summary judgment, seeking to have the court summarily adjudge 'that uninsured motorists coverage became a part of the subject automobile liability policy by operation of, and as a matter of, law.' Plaintiff also filed an affidavit alleging as follows:

'That on August 19, 1963, he rented a 1963 Chevrolet from the Hertz Corporation. Said vehicle bore 1963 Florida license No. IE--4394. That he never at any time rejected or waived uninsured motorists policy coverage on the described vehicle nor was he ever asked or requested whether he wished to reject or waive such coverage. Indeed, he was advised by the Hertz Corporation's representative, at the time of the rental, that the described vehicle was 'fully protected' by insurance.

'That he never authorized the Hertz Corporation, or any other corporation, or any person or association of persons, to reject uninsured motorists policy coverage in his behalf. That he was without knowledge of the fact that the Hertz Corporation has seemingly rejected such coverage until the pendency of this lawsuit; and that he has never approved of, nor ratified, that corporation's apparent attempt to deprive him of such coverage without his knowledge or consent.'

No other affidavits, depositions or proofs were filed. In due course the motions for summary judgment were heard, whereupon the trial court denied the plaintiff's motion for a partial summary judgment and entered a summary final judgment in favor of the defendant.

The primary point to be resolved is whether rejection of uninsured vehicle coverage by the Hertz Corporation deprives the plaintiff, renter of the vehicle, of such coverage. The plaintiff contends that the coverage, being imposed by law, reflects the public policy of the state and that rejection by the owner, Hertz Corporation, is ineffective as to the renter who is also an insured under the terms of the policy.

Florida Statute 627.0851(1), F.S.A., relied upon by the plaintiff, requires that automobile liability insurance policies, as therein designated, shall afford coverage 'for the protection of...