Lane v. Waste Management, Inc., s. 81-849

Decision Date06 April 1983
Docket NumberNos. 81-849,81-850,81-1654 and 81-1746,s. 81-849
PartiesCalvin LANE, Sr., as personal representative of the Estate of Calvin Lane, Jr., Appellant, v. WASTE MANAGEMENT, INC., and American Motorist Insurance Company, Appellees.
CourtFlorida District Court of Appeals

Goodman, Dunberg & Hochman, P.A., and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for appellant.

Pyszka & Kessler, Fort Lauderdale, and Larry Klein, West Palm Beach, for appellees.

DOWNEY, Judge.

On January 5, 1980, Calvin Lane, Jr., was killed by an uninsured motorist while driving his employer's truck in the course and scope of his employment with appellee Waste Management. Thereafter, appellant, Calvin Lane, Sr., the personal representative of the estate of Calvin Lane, Jr., unsuccessfully sought arbitration with appellee American Motorists Insurance Co., Waste Management's liability insurer. Instead, Waste Management and American Motorist filed suit for declaratory relief to determine whether the American Motorist policy issued to Waste Management afforded uninsured motorist coverage for Lane's estate. Appellant filed a counterclaim in which he claimed that the policy in question did provide uninsured motorist coverage to the extent of $500,000. The trial court ultimately granted Waste Management and American Motorist a summary judgment on their complaint and on the counterclaim, finding that no uninsured motorist coverage was afforded the estate under the American Motorist policy.

Calvin Lane, Sr., filed four notices of appeal, each of which was assigned a case number. However, as appellant suggests, since one of the notices is from the final judgment, this appellate review will consider the case as a single plenary appeal from the final judgment in favor of Waste Management and American Motorist.

Initially, Lane, Sr., suggests a procedural point for reversal. He contends that his counterclaim alleged that American Motorist insured Waste Management and Lane for uninsured motorist protection with limits of $500,000; that American Motorist's answer to the counterclaim admitted all of the allegations of the counterclaim, including this critical allegation, because the answer did not deny any of the counterclaim's allegations. Therefore, appellant contends, the counterclaim allegation of $500,000 uninsured motorist coverage stood admitted pursuant to Florida Rule of Civil Procedure 1.110(e).

The record reflects that the American Motorist answer to Waste Management's counterclaim admitted paragraphs 7 and 13, but failed to mention the remainder of the counterclaim. Without intending in any way to be critical of this appellate point, we reject it for two reasons. First, because it is obviously an oversight. The suit was commenced by American Motorist and Waste Management's filing a complaint for declaratory relief wherein they alleged that the policy in question did not provide uninsured motorist coverage and, thus, there was no reason to submit to arbitration. Lane's answer and counterclaim admitted there was a controversy over uninsured motorist coverage and Lane denied that uninsured motorist coverage had been rejected by Waste Management. Second, this argument was not made by Lane in the trial court in support of his motion for summary judgment. Lane's motion did reflect the status of the pleadings, but the conclusion drawn therefrom was not argued as Lane argues it here on appeal. Had it been, the parties concede an amendment would no doubt have been requested and allowed. So, appellant wins on form but appellee wins this one on substance. A party will not be held to an erroneous admission in an answer if he has filed an affirmative pleading containing an allegation that is contradictory to the admission set forth in the answer. Bowen v. American Arlington Bank, 325 So.2d 31 (Fla. 1st DCA 1976).

The more difficult question, and one that has haunted the courts since the advent of the statutory requirement that all liability policies also provide uninsured motorist coverage unless it is rejected, is Lane's contention that the trial court erred in granting American Motorist and Waste Management a summary judgment based on a finding that uninsured motorist coverage had been rejected. The facts, reflected by the record, are that American Motorist became Waste Management's insurer beginning January 1, 1977. Prior to issuance of the policy for 1979 Waste Management decided that it would not obtain uninsured motorist insurance coverage unless such coverage was required by statute in the states where Waste Management operated 1 and then only for minimum limits. Waste Management carries workers compensation insurance on all of its employees, which it felt would cover them if they were injured by uninsured motorists. In addition, such coverage was expensive for Waste Management's type of operation, and under its policy with American Motorist Waste Management had to absorb the first $100,000 of uninsured motorist liability. Thus, when Waste Management's insurance manager, Haufe, met with Knowles, the account executive for Waste Management's insurance agent, Haufe advised him that Waste Management did not want uninsured motorist coverage except in those states that required it, and then only in minimum amounts required. Haufe then advised American Motorist "As respects uninsured motorists, we want to be assured that we are only buying coverage required by statute. We do not want any U.M. coverage that we are not forced to carry." Thereafter, the 1979 policy was issued providing liability coverage for bodily injury in the amount of $500,000 and uninsured motorist coverage for Waste Management's Florida operation in the amount of $20,000. 2 Mr. Haufe was not familiar with the statutory requirements for uninsured motorist coverage in Florida. The record seems clear that American Motorist did not offer Waste Management $500,000 worth of uninsured motorist coverage. The only discussion was to the effect that Waste Management did not want UMI coverage unless compelled by law to carry it. Therefore, there is no written or oral offer of full coverage nor any formal written rejection thereof. The latter problem has finally been resolved statewide by Kimbrell v. Great American Ins. Co., 420 So.2d 1086 (Fla.1982), wherein the Supreme Court held there is no statutory requirement that the rejection of uninsured motorist full coverage be in writing and that whether the rejection of such coverage was knowingly made is a question of fact.

It appears the essential question to be answered here is whether Waste Management's rejection of UMI coverage was an informed rejection within the meaning of...

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