Lumbermen's Mut. Cas. Co. v. Beaver, s. 76-1086
| Decision Date | 14 February 1978 |
| Docket Number | Nos. 76-1086,76-1294,s. 76-1086 |
| Citation | 355 So.2d 441 |
| Parties | LUMBERMEN'S MUTUAL CASUALTY COMPANY, a Foreign Insurance Corporation, Appellant, v. Mark BEAVER, Appellee. |
| Court | Florida District Court of Appeals |
Jeanne Heyward and Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Miami, for appellant.
Marc Cooper of Greene & Cooper and Maurice Fixel of Meyer, Leben, Fixel, Cantor & Englebert, Hollywood, for appellees-Beaver and Welch.
Appellee, Mark Beaver, was struck on his bicycle by an uninsured motorist. However, at the time of the accident Mark was covered by an insurance policy effective March 1, 1973, issued by appellant, Lumbermen's Mutual Casualty Company, to Norman Welch. The Lumbermen's policy contained bodily injury liability limits of $100,000/$300,000 and uninsured motorist coverage limits of $10,000/$20,000.
Mark filed a claim for arbitration pursuant to the terms of appellant's policy. Thereafter, Mark, through his next friend, filed suit for declaratory judgment against Lumbermen's Mutual Casualty Company and Stevenson's Insurance Agency, Inc., the agent which sold the policy. Mark contended that the Welch policy should be held to provide $100,000/$300,000 limits of uninsured motorist coverage because the agent had not offered to Welch uninsured motorist coverage in an amount equal to the bodily injury limits of said policy.
Welch testified on deposition that he purchased the policy from Stevenson Insurance Agency, Inc., and at that time there was no discussion concerning uninsured motorist coverage nor did he know he could have purchased uninsured motorist coverage up to a maximum of the bodily injury limits.
The agent who sold the policy to Welch contradicted Welch to some extent in testifying that it was his standard procedure always to inform an insured how much uninsured motorist coverage he could purchase. He testified that, although he had nothing in writing to prove it, to the best of his recollection and knowledge he had advised Welch of his options.
The trial court granted appellees a summary judgment and held that the amount of uninsured motorist coverage available to Mark was $100,000/$300,000. Furthermore, although the trial court initially stayed the arbitration proceeding, after entry of the summary judgment the trial court vacated the stay order.
On appeal appellant contends a) that the court erred in holding that appellant did not fully comply with Section 627.727(1), Florida Statutes (1971) in issuing the policy in question, b) that it was error to grant summary judgment for appellees on the issue of the amount of uninsured motorist coverage, and c) that it was error for the trial court to vacate the stay of the arbitration proceeding.
We feel obligated to reverse the summary judgment because the movant did not conclusively demonstrate there was no genuine issue of material fact involved. Holl v. Talcott, 191 So.2d 40 (Fla.1966).
The next point on appeal involves the real issue in this case and should be treated now for the future guidance of the trial court during the proceedings following remand. The question involved as stated by appellee is:
"(W)hether Fla.Stat. § 627.727(1) (1971) mandates that an insured is entitled to uninsured motorist (UM) coverage in the same limits as his bodily injury liability coverage unless he affirmatively rejects those limits in whole or in part."
Inferentially, the trial court answered this question affirmatively, holding an insured is entitled to maximum limits unless those limits are rejected by the insured. We agree and answer the question affirmatively.
Prior to 1971 uninsured motorist coverage was provided for in Section 627.0851, Florida Statutes (1969). Paraphrased, that section provided that no automobile insurance covering liability arising out of the ownership, maintenance or use of any motor vehicle registered or principally garaged in this state shall be issued or delivered unless the policy contained uninsured motorist coverage with limits not less than those described in Section 324.021(7) (limits of $10,000/$20,000). The statute provided, however, that this uninsured motorist coverage was not applicable where any insured named in the policy rejected the coverage.
In 1971 the Legislature amended Section 627.0851(1), by providing:
"(1) 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 not less than the limits described in § 324.021(7), and in an amount up to 100 percent of the liability insurance purchased by the named insured for bodily injury, under provisions filed with and approved by the department, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage; . . ." Section 627.727(1), Florida Statutes (effective Jan. 1, 1972) (Emphasis added.)
In 1973 the Legislature passed Chapter 73-180, Laws of Florida, which further amended Section 627.727(1), by, among other things, requiring that no liability insurance policy should be issued unless uninsured motorist coverage was provided therein in an amount not less than the limits of liability insurance purchased by the insured. This statute retained the previous provision that the insured could reject the coverage.
In order to comply with the law in existence prior to 1971, or the law as amended thereafter, an insurance carrier would be required to advise its insured of the options available regarding the purchase of uninsured motorist coverage. Wilson v. National Indemnity Company, 302 So.2d 141 (Fla. 1st DCA 1974); Bernstein v. Liberty Mutual Insurance Company, 294 So.2d 63 (Fla. 3rd DCA 1974); 14 Univ.Fla.L.Rev. 455 (1962), Uninsured Motorist Coverage in Florida. Rhetorically, we might ask, how could a company comply with the law in effect at any of those times if it issued a policy, for example, with no uninsured motorist coverage, unless it had apprised the insured of the options available and the insured had rejected said coverage? Likewise, if an insurance carrier issued a policy in March 1973 (while 627.727(1), Florida Statutes (1971) was in effect) with bodily injury limits of $100,000/$300,000 and uninsured motorist coverage with limits of $10,000/$20,000, or any other limits less than the bodily injury limits, it could not have complied with the law then in effect unless the insured had rejected the uninsured motorist limits equal to the bodily injury limits contained in the described policy.
This conclusion is supported by a Rule promulgated by the Department of Insurance of the State of Florida. Section 624.308(1), Florida Statutes (1971), provides that "the department (of insurance) may make reasonable rules and regulations necessary for or as an aid to the effectuation of any provision" of the Insurance Code. In implementing that authority the Department of Insurance promulgated Rule 4-28.02, which provides as follows:
Appellant contends that Rule 4-18.02 violates Section 624.308(1), Florida Statutes (1971), in that it modifies or extends Section 627.727(1), Florida Statutes (1971). We disagree.
We recognize that our interpretation of Section 627.727(1), Florida Statutes (1971) conflicts with the holding of...
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