Midwest Mut. Ins. Co. v. Santiesteban

• Decision Date: 12 December 1973
• Docket Number: No. 42880,42880
• Citation: 287 So.2d 665
• Parties: MIDWEST MUTUAL INSURANCE COMPANY, Petitioner, v. William SANTIESTEBAN, a minor, by and through his father and next friend, Theodore Santiesteban, and Theodore Santiesteban, Individually, Respondents.
• Court: Florida Supreme Court

Page 665

287 So.2d 665

MIDWEST MUTUAL INSURANCE COMPANY, Petitioner, v. William SANTIESTEBAN, a minor, by and through his father and next friend, Theodore Santiesteban, and Theodore Santiesteban, Individually, Respondents.

No. 42880.

Supreme Court of Florida.

Dec. 12, 1973.

Rehearing Denied Jan. 31, 1974.

James E. Tribble of Blackwell, Walker, Gray & Powers, Miami, for petitioner.

Edward A. Perse of Horton & Perse, and Fuller, Brumer, Moss & Cohen, Miami, for respondents.

DEKLE, Justice.

In this cause for review on certiorari from the Third District's affirmance of the plaintiffs' summary judgment, ¹ we consider plaintiffs' (respondents') claims for the uninsured motorist coverage of $10,000 under each of two separate insurance policies. Both were issued by petitioner insurance company; one was upon a friend's Honda motorcycle which the minor plaintiff was riding. The $10,000 is conceded since plaintiff was admittedly injured by an uninsured motorist, and the respondent insurance company at all times admitted liability under this policy. The company steadfastly denied, however, any coverage under a 'limited policy' issued on another Honda motorcycle to one Dennis F. Mahfuz, 6820 S.W. 19th Ter., Miami, Fla., 33155, with a 'Loss Payee' clause payable to Commercial Credit Corp.

The only was the injured minor figures in the 'Mahfuz' policy is being listed--not as an insured--but as 'principal operator if other than named insured.' This was prior to the new 18-year-old statute; ² whether the vehicle was thus titled and insured for purposes of liability contingencies or a conditional sales contract or whatever reason, the actual ownership of the motorcycle and 'the insured' under the policy was Dennis Mahfuz, a 'stranger' to respondents insofar as any relationship under this policy is concerned and who resides at a different address.

We might have a different result here except for the fact that the injured plaintiff was not 'a resident of the same household' as that of the named insured Dennis Mahfuz, as was the case in Mullis v. State Farm Mutual Automobile Ins. Co., 252 So.2d 229 (Fla.1971), wherein this Court held that the uninsured motorist coverage was available there, where the injured party 'was a resident member of the household of the named insured.' This is a critical distinction in our case in which the injured minor had, for whatever reasons, a different residence than that of the owner and insured, Mr. Mahfuz, and the policy expressly listed a separate residence address for the 'principal operator', namely, the minor plaintiff here.

There is therefore no 'relative resident in the same household' relationship as the essential predicate which was the criterion in Mullis and without which the double recovery sought is without a basis. In this respect, Mullis stated: (p. 233 of 252 So.2d)

'This, of course, would not be the case (coverage) as to other persons potentially covered who are Not in the class of the Named insured and relatives resident in the Mullis Household. These latter are protected only if they receive bodily injury due to the negligence of an uninsured motorist while they occupy the insured automobile of the named insured with his permission or consent.' (emphasis added)

The District Court thus misapplied and misconstrued the holding in Mullis; this is one basis for conflict. ³ Moreover, there is

direct conflict with Boyd v. United States Fidelity & Guaranty Co., 256 So.2d 1 (Fla.1971), and Rigel v. Nat'l Casualty Co., 76 So.2d 285 (Fla.1954), holding that an unambiguous contract of insurance does not require construction, and must be given effect as written. It should have been here. There was no ambiguity in the Mahfuz policy under which the additional $10,000 is sought, wherein the minor plaintiff was listed as 'principal operator' and was neither an 'insured' nor 'relative resident in the same household' nor did he 'occupy the insured vehicle' as a basis for uninsured motorist coverage under Mullis. The District Court's transposing of 'principal operator' to 'insured' was without foundation; this creates conflict with the principles announced in Boyd and Rigel.

WAIVER

Secondly, the trial court had held and the District Court agreed that the insurance company by proceeding to arbitration waived its defenses as to non-coverage, citing Volkswagen Ins. Co. v. Taylor, 201 So.2d 624 (Fla.App.1st 1967). V.W. is not controlling. In the present cause there are two distinct claims and policies applying. Boyd v. United States Fidelity & Guaranty, Supra. The insurance company at all times conceded its liability under its policy on the motorcycle being ridden by the injured plaintiff; it was equally adamant that there was NO additional coverage under the policy on the other motorcycle. It never waivered from that position. By advance letter it expressly rejected submitting to arbitration regarding the additional policy claimed to be applicable; prior to the arbitration hearing the insurance company by further letter offered policy limits of the policy on the motorcycle being operated and insisted that this was the only policy applicable to the claim under arbitration. Under these circumstances there was hardly a waiver since insurer's position was consistent at all times under the one...