Northern Ins. Co. of New York v. Hiers, 86-919
| Citation | 504 So.2d 1382,12 Fla. L. Weekly 995 |
| Decision Date | 09 April 1987 |
| Docket Number | No. 86-919,86-919 |
| Parties | 12 Fla. L. Weekly 995 NORTHERN INSURANCE COMPANY OF NEW YORK, Appellant, v. Lottie M. HIERS and Thomas N. Hiers, Appellees. |
| Court | Court of Appeal of Florida (US) |
Lora A. Dunlap of Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A., Orlando, for appellant.
Robert A. Wohn, Jr., of Wohn & McKinley, P.A., Cocoa, for appellees.
The appellant, Northern Insurance Company of New York (Northern), appeals a final judgment entered below in favor of Lottie M. Hiers and Thomas N. Hiers, which found that Northern's uninsured motorist obligation and coverage to the Hierses was the same as the bodily injury coverage under their automobile policy.
The Hierses sought arbitration against Northern based on the latter's refusal to provide more than $10,000 coverage after Lottie Hiers, while driving the insured vehicle (a Ford flatbed truck), was injured by an uninsured/underinsured motor vehicle. Northern counterclaimed for declaratory relief.
At trial Thomas Hiers and the agent from whom he originally purchased the policy in 1982, one Rene Davis, each testified, in essence, that he could not specifically recall the details of the conversation relating to that purchase. Davis did testify, however, that his normal procedure in selling automobile insurance was to inform the insured that uninsured motorist coverage was available up to the liability limits and was recommended. The liability limit of that policy was $50,000. Hiers did not sign a written rejection of uninsured motorist options, but the policy, by its terms, provided only $10,000 u/m coverage.
Hiers testified that in 1983 he received a copy of the policy on the flatbed truck from Northern, with an invoice billing for the premium. The invoice was stapled to the front of a blue policy jacket. Inside the blue jacket was a 16-page policy. The first page contained the policy declarations. The second page contained an election or rejection of uninsured motorist insurance, as required by the statutory notification procedure contained in section 627.727(1), Florida Statutes (1983). 1 Hiers testified that he never read through the policy, although he did glance at the declarations to see if it was the correct policy. This renewal also increased the bodily injury provisions to $100,000/$300,000.
After hearing the evidence, the trial court entered a final judgment finding, in pertinent part:
C. That the Petitioner, THOMAS N. HIERS, did not make an informed rejection of the higher uninsured motorist coverage as to either the 1982 or the 1983 policy issued by the Respondent to the Petitioner.
D. That the Petitioner, THOMAS N. HIERS, did not make an affirmative rejection of the higher uninsured motorist coverage as to either the 1982 or the 1983 policy issued by the Respondent to the Petitioner.
E. That the Petitioner, THOMAS N. HIERS, did not make any rejection, in writing or otherwise, of higher uninsured motorist coverage available to him under either the 1982 or the 1983 policy issued by the Respondent to the Petitioner.
F. That as to the subject 1983 policy, the Respondent sent to the Petitioner, THOMAS N. HIERS, the uninsured motorist option unattached to notice of premium, but attached under the policy jacket on the second page of the policy itself. The legislature, in its wisdom as to human behavior tendencies on the part of the citizens of the State of Florida, required such option as to uninsured motorist coverage to "be part of the notice of premium." Section 627.727(1), Florida Statutes. By not attaching the uninsured motorist coverage option to the notice of premium, Respondent failed to give Petitioner an opportunity to knowingly and affirmatively consider same within the expectations of the legislative mandate.
It may be, as contended on appeal by Northern, that the trial court erred in concluding that Hiers originally failed to make an informed rejection of higher...
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