Neff v. Prop. & Cas. Ins. Co. of Hartford

• Decision Date: 29 January 2014
• Docket Number: No. 2D12–4090.,2D12–4090.
• Citation: Neff v. Prop. & Cas. Ins. Co. of Hartford, 133 So.3d 530 (Fla. App. 2014)
• Court: Florida District Court of Appeals
• Parties: Beverly NEFF, Appellant, v. PROPERTY & CASUALTY INSURANCE COMPANY OF HARTFORD, a foreign corporation, Appellee.

133 So.3d 530

Beverly NEFF, Appellant,

v.PROPERTY & CASUALTY INSURANCE COMPANY OF HARTFORD, a foreign corporation, Appellee.

No. 2D12–4090.

District Court of Appeal of Florida, Second District.

Nov. 22, 2013.

Rehearing Denied Jan. 29, 2014.

Joseph R. Bryant of Morgan & Morgan, P.A., Tampa, for Appellant.

Teresa D. Jones of Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A., Sarasota, for Appellee.

MORRIS, Judge.

Beverly Neff appeals a final summary judgment entered in favor of her automobile insurer, Property & Casualty Insurance Company of Hartford (Hartford).Neff filed a complaint for declaratory relief and damages against Hartford, seeking uninsured/underinsured motorist (UM) benefits under her own policy.Hartford moved for summary judgment, claiming that Neff was not entitled to UM benefits because her damages did not exceed the amount of benefits available to her under the tortfeasor's liability policy.The trial court agreed and entered judgment in favor of Hartford.We affirm the judgment of the trial court.

I.FACTS

Neff was injured in an automobile accident caused by a tortfeasor insured under a bodily injury liability policy with Progressive Select Insurance Company(Progressive).When Progressive made a de minimis offer to Neff, she sought UM benefits under her own policy with Hartford, which provided $25,000/ $50,000 in stacked UM benefits.Hartford denied Neff's UM claim, taking the position that Neff's claim fell within the tortfeasor's liability policy limits of $50,000 and that Hartford therefore had no UM obligation to Neff.

After Hartford denied Neff's claim, she filed her complaint against Hartford for declaratory relief and damages, claiming that Florida law permits her to pursue a direct action against her UM carrier and claiming damages for injuries caused by the tortfeasor.Hartford moved for partial summary judgment on the declaratory judgment count, asserting that Neff was attempting to turn UM coverage into primary, first-party coverage by seeking UM benefits when she has not shown that the tortfeasor's limits were insufficient to cover her damages.Neff argued in response that she is not obligated to first sue or settle with the tortfeasor as a precondition to filing an action against her own UM carrier.In granting Hartford's motion, the trial court stated the following:

1.The plain language of Florida's Uninsured Motorists Statute§ 627.27 makes it clear that the purpose of the uninsured motorist's coverage is to cover the difference, if any, between the sum of the available benefits from the alleged tortfeasor and the damages sustained.

2.The requirement that the plaintiff show that the damages incurred above and beyond the limits of the tortfeasor's coverage is not analogous to requiring the plaintiff to bring suit against the tortfeasor, which is against public policy.If there was no requirement to show that the tortfeasor's coverage is insufficient, it would essentially convert what is meant to be third[-]party coverage into primary coverage.Allstate [Ins. Co.] v. Morales,533 So.2d 952(Fla. 5th DCA1988).

Neff then voluntarily dismissed her count for damages, and the trial court entered a final summary judgment in favor of Hartford.

II.ANALYSIS

On appeal, Neff argues that the trial court's ruling is erroneous because it “subverts Neff's statutory right to bring a direct action against her UM carrier and forego an action against the tortfeasor.”We disagree.

We first recognize that an injured insured may bring a direct action against her own UM carrier without having first resolved a claim against the tortfeasor.See, e.g., Woodall v. Travelers Indem. Co.,699 So.2d 1361, 1363(Fla.1997);Robinson v. Auto Owners Ins. Co.,718 So.2d 1283, 1285(Fla. 2d DCA1998).However, in bringing a direct action against her UM carrier, the insured must demonstrate that she is entitled to UM benefits on the basis that the tortfeasor is an uninsured or underinsured motorist.SeeAllstate Ins. Co. v. Boynton,486 So.2d 552, 557(Fla.1986)(noting that in making a “claim against his UM carrier instead of suing the tortfeasor,” the insured “has a policy prerequisite, namely, proof that the tortfeasor is uninsured”);Vigilant Ins. Co. v. Kelps,372 So.2d 207, 208(Fla. 3d DCA1979)(“[N]o UM coverage exists if the offending motorist is not actually un-or underinsured.”(citingHayston v. Allstate Ins. Co.,290 So.2d 67(Fla. 3d DCA1974))).

Section 627.727(1), Florida Statutes(2009), describes UM coverage and provides in relevant part:

The coverage described under this sectionshall be over and above, but shall not duplicate, the benefits available to an insured ... under any motor vehicle liability insurance coverage; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident; and such coverage shall cover the difference, if any, between the sum of such benefits and the damages sustained, up to the maximum amount of such coverage provided under this section.The amount of coverage available under this section shall not be reduced by a setoff against any coverage, including liability insurance.

(Emphasis added.)Subsection (3) goes on to provide, in relevant part, that

[f]or the purpose of this coverage, the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:

....

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