Lopez v. Midwest Mut. Ins. Co.

• Decision Date: 03 June 1969
• Docket Number: No. 68--949,68--949
• Citation: 223 So.2d 550
• Parties: Manuel LOPEZ, a minor, by and through his natural father and guardian, Manolo Lopez, Appellant, v. MIDWEST MUTUAL INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 550

223 So.2d 550

Manuel LOPEZ, a minor, by and through his natural father and guardian, Manolo Lopez, Appellant, v. MIDWEST MUTUAL INSURANCE COMPANY, Appellee.

No. 68--949.

District Court of Appeal of Florida, Third District.

June 3, 1969.

Sullivan & Telepas, Irwin J. Block and Barry N. Semet, Miami, for appellant.

Blackwell, Walker & Gray, and James E. Tribble, Miami, for appellee.

Before PEARSON, HENDRY and SWANN, JJ.

PEARSON, Judge.

The plaintiffs in a declaratory action appeal from a final judgment which found that Manuel Lopez was not entitled to uninsured motorist coverage. The judgment reads as follows:

'1. This is a suit for Declaratory Decree based upon certain insurance contracts executed between the Defendant and the minor Plaintiff, whereby the latter complains that he was not afforded the protection of uninsured motorist coverage in said insurance contracts as required by state law. Defendant alleges that such coverage was rejected by Plaintiff, as authorized by statute.

'2. The court finds that Florida Statute, F.S.A., 627.0851 authorizes a named insured to reject uninsured motorist coverage. The statute does not set forth how said rejection may be effected. That the minor Plaintiff's rejection of uninsured motorist coverage is sufficiently evidence by the written application for motorcycle insurance. The application contract contains no ambiguities or other insufficiency which would require this court to construe its terms, the court finding that the plain meaning of the words included therein constitute a sufficient rejection of uninsured motorist coverage as authorized by law.

'3. The court finds, in the absence of any ambiguities or other insufficiency that the minor Plaintiff is bound by the terms of the executed application contract and there has been no sufficient allegation or proof of any legal grounds for reforming this contract. It is found the Defendant would not have issued the insurance policy at the same premium rate as charged, were uninsured motorist coverage included. There is insufficient proof of any defect in the form and style of the insurance application as to require construction thereof by the court. * * *'

Manuel Lopez purchased a motorcycle when he was 15 years old. The salesman for the company selling him the vehicle provided him with an application for motorcycle and scooter insurance. By statute the disabilities of non-age are removed as to policies of insurance contracted for by minors 15 years of age or older. See § 627.01051, Fla.Stat., F.S.A. The application contains several blocks, i.e., bordeded areas of printing containing squares which might be checked. The application directs applicants to 'Check Coverages Desired.' Two blocks bear the heading 'SPECIAL PACKAGE POLICIES.' One of these blocks was checked by appellant Manuel Lopez. It reads as follows:

'Units 1 Thru 100 cc

12 Month Policy Providing:

LIABILITY (limits required by State)

$25 Ded. COMPREHENSIVE, $25 Ded. COLLISION

Second 12 Mos. &

RENEWAL--$60.00'

TOTAL PREMIUM--$66.00

Another block near the bottom of the application reads as follows: 'UNINSURED MOTORIST COVERAGE: MUST BE INCLUDED WITH LIABILITY OR PACKAGE POLICY, AT ADDITIONAL PREMIUM OF $10.00, UNLESS REJECTED.' Just above the line for signature is a space for the toal premium and the words 'IN APPLYING FOR THIS INSURANCE I SPECIFICALLY REJECT INSURED MOTORIST COVERAGE, UNLESS INCLUDED IN THE PREMIUM ABOVE.' The block for uninsured motorist coverage was not checked. The total premium inserted was $66.00 (the premium for the special package policy of the block checked). The application bears the signature 'Manuel Lopez Jr.'

On this appeal the immediate question presented is whether the application was so framed as to make the minor appellant's apparent rejection of uninsured motorist coverage ineffective. The requirement that uninsured motorist coverage must be afforded by automobile liability insurers unless rejected by an applicant is found in § 627.0851(1), Fla.Stat., F.S.A.:

'No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle, shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in...