Maxwell v. U.S. Fidelity & Guaranty Co.

• Citation: 399 So.2d 1051
• Decision Date: 16 June 1981
• Docket Number: No. TT-314,TT-314
• Parties: James A. MAXWELL, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 1051

399 So.2d 1051

James A. MAXWELL, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.

No. TT-314.

District Court of Appeal of Florida, First District.

June 16, 1981.

Edwin F. Blanton of Novey & Blanton, Tallahassee, for appellant.

R. Jeremy Solomon of McConnaughhay & Roland, Tallahassee, for appellee.

LARRY G. SMITH, Judge.

Maxwell appeals a declaratory judgment finding that the limits of uninsured motorist coverage provided by his employer's insurer, United States Fidelity and Guaranty Company (USF&G), were those provided in the policy of $10,000 per person and $20,000 per accident. Maxwell raises two issues for our consideration: First, he urges that the insured was unable to make an informed rejection of uninsured motorist (UM) coverage and therefore the UM coverage is equal to the bodily injury (BI) coverage. Secondly, he argues that since the vehicle involved in the accident was added to the insurance policy by endorsement several months after the policy had been issued and delivered and the insurer failed to renew the UM offer at that time, the insured was not given an opportunity to reject the added coverage and therefore the UM coverage limits are equal to BI coverage limits. We affirm.

On February 1, 1978, the named insured, Magnus Peavy, acquired fleet coverage for his vehicles from USF&G. The fleet policy, issued February 1, 1978, had BI liability limits of $500,000 and UM coverage limits of $10,000-$20,000. The vehicle in which Maxwell was driving at the time of the accident was added to the fleet policy several months after February 1, 1978 by endorsement, and an additional premium was charged for the new coverage. The agent did not then advise Peavy he had the right to UM coverage in the same amount as his BI limits, and none was requested. On December 23, 1978, Maxwell suffered severe injuries in an automobile accident caused by a "phantom" vehicle. Maxwell's damages far exceeded the uninsured motorist's limits of $10,000-$20,000 in the fleet policy and the insurer denied coverage beyond those limits. Maxwell then filed a complaint for declaratory judgment to determine the scope of the UM coverage.

The trial court, while not deciding the issue of whether Maxwell was operating the insured vehicle with the consent of the owner when the accident occurred, found (1) that the insured had been offered UM coverage equal to his BI liability coverage for the policy period from February 1, 1978 to February 1, 1979, and had rejected it; (2) that the insured was an intelligent businessman who relied upon his insurance agent for information, and that there was no evidence he was furnished incorrect information; (3) that the policy covered from 40-50 vehicles and that vehicles would from time to time be added or deleted by endorsement; and (4) that it was the intention of the parties that the rejection applicable to the fleet policy effective February 1, 1978 apply to all vehicles added during the term of the policy. The court thereupon held that since Maxwell was operating a vehicle which had been added to the policy at the time of the accident, the limits of the UM coverage provided by USF& G's policy were $10,000 per person and $20,000 per accident, in accordance with the rejection applicable to the fleet policy.

Although the trial court ruled otherwise, Maxwell argues before us that the insured failed to make a knowing and informed rejection of UM limits in an amount equal to his BI limits when the policy was first issued. In response to this argument, we note this was a factual issue resolved in favor of the insurer by the trial judge and the trial judge's ruling comes to this court clothed with a presumption of correctness. Further, we agree there is competent and substantial evidence supporting the finding that the insured knowingly and intelligently rejected UM coverage equal to his BI liability coverage when the fleet policy was issued on February 1, 1978. Therefore, we decline to reverse on this point.

We turn now to Maxwell's contention that the endorsement adding the vehicle involved in the accident to the policy constitutes a new policy within the meaning of Section 627.727(1) and (2), Florida Statutes (1977). This statute requires that an insurer make an offer of UM coverage to the insured in the amounts up to BI limits for each new insurance policy issued in the state. In support of his contention that the endorsement constitutes a separate contract of insurance for which the insurer must renew the UM offer, Maxwell relies on United States Fire Insurance Company v. Van Iderstyne, 347 So.2d 672 (Fla. 4th DCA 1977), which held that an insurance policy endorsement to add an additional automobile after the effective date of an amendment to Section 627.727, Florida Statutes (1973) increasing coverage requirements for uninsured and underinsured motorist coverage was a separate and severable contract so that the new statutory limits for coverage were applicable.

We cannot agree with this application of the holding in Van Iderstyne. In that case the issue was: Which law should apply, the law in effect at the time the policy was issued (which did not require the policy to provide uninsured and underinsured motorist coverage), or the law in effect at the time of the endorsement adding another automobile (which required the policy to include such coverage, unless rejected)? The court answered, not by finding that the endorsement constituted a reissuance or redelivery of the entire policy (although the court considered and apparently rejected this as a "possible" interpretation, (opinion page 673)), but by reasoning that since the law at the time of the endorsement required UM coverage, and the endorsement was a "separate and severable contract," the court would be required, in effect, to "write into the policy and/or the endorsement" the required coverage.

The issue in the case before us, on the other hand, is not what law to apply in determining the obligation of the insurer under the policy and endorsement. Rather, the issue is how to construe the statutory law in effect at the time of the issuance of the policy with reference to a later endorsement adding another vehicle to the policy coverage. Since both the facts and question of law involved differ from those in Van Iderstyne, we see no reason why that case should lead us to reach the same result.

Put very simply, does the statute require the insurer to obtain a new rejection of UM coverage (up to the limits of liability for bodily injury) when the company adds another vehicle by endorsement, after the insured has already knowingly rejected the extra coverage as to the policy itself? We answer this question in the negative, as did the trial judge, under the factual circumstances presented by this case. While we agree with Maxwell that the provisions of Section 627.727(1) and (2) require that the insurer "make an offer of uninsured motorist coverage to the insured in the amounts up to the bodily injury limits for each new insurance policy issued in the State," we do not agree that the addition of another vehicle by endorsement is the issuance of a "new insurance policy," and furthermore, the opinion in Van Iderstyne makes it clear that for purposes of applying this statute, it is not. There the court stated (Van Iderstyne, at 673):

There is no question that the endorsement and the policy are interrelated and interdependent. If it were not for the endorsement the second automobile would not be covered and if it were not for the policy we wouldn't know most of the terms of the coverage.

That the policy and the endorsement are "interrelated and interdependent" does not make them the same thing. The statute speaks of "coverage" of the "policy," and it creates no burden upon the insurer to provide for or obtain a new rejection of UM coverage when the vehicles covered by the policy are simply changed by endorsement. The issue is very similar to that presented by the "replacement" of a vehicle and requires no different interpretation of this statute. See Kennilworth Insurance Company v. McCormick, 394 So.2d 1037 (Fla. 1st DCA 1981); State Farm Mutual Automobile Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980); United States Fidelity and Guaranty Company v. Waln, 395 So.2d 1211 (Fla. 4th DCA 1981).

As previously noted, the trial judge found that the policy covered from 40-50 vehicles, that vehicles would be from time to time added or deleted by endorsement, and that it was the intention of the parties that the rejection applicable to the fleet policy would apply to all vehicles added during the term of the policy. Consistent with the intention of the parties to this fleet policy, the insured added 13 vehicles and deleted 12 during the policy year. It does not appear to us that the addition of each vehicle under these circumstances must be determined, as a matter of law, to constitute a change in the basic policy in a "material respect" so as to trigger the necessity for an additional rejection of UM coverage. See Hartford Accident and Indemnity Company v. Sheffield, 375 So.2d 598, 600 (Fla. 3rd DCA 1979), Footnote 3.

Our analysis of the Fourth District's Van Iderstyne decision presents the issue involved and the rationale behind the decision in a somewhat different light than did a different panel of the same court in Waln, supra. With regard to Van Iderstyne, the court stated:

We have previously held that the addition of an automobile by endorsement to an insurance policy required the insurance company to afford the insured a new opportunity to reject uninsured motorist coverage. United States Fire Insurance Company v. Van Iderstyne, 347 So.2d 672 (Fla. 4th DCA 1977). By implication that case stands for the proposition that the addition of an automobile, requiring the establishment of new and different insurance coverages, constitutes a material change in the policy. Thus, the "renewal policy"...