Lewis v. Cincinnati Ins. Co.

• Decision Date: 08 January 1987
• Docket Number: No. 85-1679,85-1679
• Citation: 12 Fla. L. Weekly 208,503 So.2d 908
• Parties: 12 Fla. L. Weekly 208 Wallace S. LEWIS and Patricia Lewis, Appellants, v. CINCINNATI INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 908

503 So.2d 908

12 Fla. L. Weekly 208

Wallace S. LEWIS and Patricia Lewis, Appellants, v. CINCINNATI INSURANCE COMPANY, Appellee.

No. 85-1679.

District Court of Appeal of Florida Fifth District.

Jan. 8, 1987.

Rehearing Denied March 9, 1987.

Larry Mark Polsky, Daytona Beach, for appellants.

Delia A. Doyle, John N. Bogdanoff and Terrence E. Kehoe, of Haas, Boehm, Brown, Rigdon, Seacrest & Fischer, P.A., Daytona Beach, for appellee.

SHARP, Judge.

The Lewises appeal from a final summary judgment denying Wallace Lewis uninsured motorist coverage under a policy issued by Cincinnati Insurance Company on August 2, 1984. ¹ The issue in this case is whether or not a relative residing in an insured's household can be excluded from coverage by a provision in the policy which denies uninsured motorist coverage for his bodily injury

1. While occupying, ... any motor vehicle ... of any type owned by you or any family member which is not insured for this coverage under this policy.

We reverse.

The record in this case establishes that Wallace Lewis was injured in an accident while driving his own Jeep Renegade by an uninsured/underinsured motorist. He had uninsured motorist coverage on two vehicles owned by himself and his wife, but because of the extent of his injuries, he sought additional coverage under Cincinnati's policy, which was issued to his son and daughter-in-law. Cincinnati's policy specifically covered two other vehicles owned by the junior Lewises. They lived with the senior Lewises and were mutually resident relatives or family members. The accident occurred on October 19, 1984.

Under Cincinnati's insurance policy, the senior Lewises were covered for liability as being "family members" of the named insured. Part A 1. provides:

covered person as used in this Part means: 1. you or any family member for the ownership, maintenance, or use of any auto....

However, a subsequent provision excluded them from liability coverage while driving their own automobile. That provision provides:

We do not provide liability coverage:

10. For the ownership, maintenance or use of any vehicle, other than your covered auto, which is owned by or furnished or available for the regular use of any family member....

Presumably, the senior Lewises would have had liability coverage under this policy if they had been driving one of the junior Lewises automobiles, or one owned by a third person.

The Cincinnati uninsured motorist coverage is similarly worded. "Family members" are covered for their bodily injuries unless injured while occupying or struck by a vehicle owned either by the named insured or any family member, which is not insured for coverage under the policy. If Wallace Lewis had been injured in his son's car, or in a car owned by a third person, he would have been covered. However, since he was driving his own car when struck by the uninsured motorist, the policy excluded uninsured motorist coverage.

As analyzed succinctly in Auto-Owners Insurance Company v. Bennett, 466 So.2d 242 (Fla. 2d DCA 1984), the basic issue in such cases is whether the family member is entitled to "basic liability coverage" under the insurance policy involved. In Bennett, like this case, the family member was covered for liability while driving a car owned by his father, which was scheduled in the policy; although he was excluded from liability as well as uninsured motorist coverage when driving or in an automobile not owned by the insured. Bennett held that the first provision was controlling in determining whether or not the family member had basic liability coverage, and therefore under Mullis v. State Farm Mutual Automobile Insurance Company, 252 So.2d 229 (Fla.1971), it was not permissible for the insurance company to restrict or limit uninsured motorist coverage.

Mullis held that a family member who was covered under the liability portion of the policy could not be restricted or limited in the policy's uninsured motorist coverage to injury occurring in certain vehicles. In Mullis, the exclusion sought to deny uninsured motorist coverage to a resident relative of an insured, while occupying a vehicle owned by the relative or the insured, which was not insured under the policy. The court held that the exclusion was invalid under this state's public policy. If resident relatives are covered under the liability provisions, they must be covered by the uninsured motorist section.

They may be pedestrians at the time of such injury, they may be riding in a motor vehicle of others or in public conveyances and they may occupy motor vehicles (including Honda motorcycles) owned by but which are not 'insured automobiles' of named insured.

Id. at 233. Mullis is apparently still the controlling authority in this state, despite recent and interim statutory changes and rewording. ²

Recently in Auto-Owners Insurance Company v. Queen, 468 So.2d 498 (Fla. 5th DCA 1985), we followed Bennett and Mullis. Although the provisions of the policy in Queen were not quoted in the opinion, we said they were "identical" with those in Bennett. In Queen, a resident daughter was covered under the basic...