Progressive Mut. Ins. Co. v. Brown
| Decision Date | 23 December 1969 |
| Docket Number | No. K--370,K--370 |
| Citation | 229 So.2d 645 |
| Parties | PROGRESSIVE MUTUAL INSURANCE COMPANY, Appellant, v. Raiford BROWN, Appellee. |
| Court | Florida District Court of Appeals |
Howell, Kirby, Montgomery & D'Aiuto, Jacksonville, for appellant.
Blalock, Holbrook, Lewis, Paul & Bennett, Jacksonville, for appellee.
The defendant in an action on an automobile liability insurance policy, providing for uninsured motorist coverage, has appealed from an adverse final summary judgment entered by the Circuit Court for Duval County.
The basic question presented for our determination in this appeal is whether the said court correctly held that the uninsured motorist provision of the said policy, restricting such coverage to instances in which there was a physical contact between the uninsured motorist's 'hit-and-run automobile' and the insured's automobile, is void as against public policy.
In his complaint the plaintiff alleges that the defendant issued to him the said policy and that, while that policy was in effect, he was operating his own automobile and was injured as a result of the negligent operation of another car by an uninsured motorist. While the complaint does not aver how the other motorist's negligence caused the plaintiff's injuries, it was, by discovery proceedings, shown that the other automobile either by contact or by no contact ran or caused the plaintiff to run off the highway and hit an abutment.
In answer to this complaint, the defendant admits that the said policy was in full force and effect at the time of this accident, including the provision for uninsured motorist coverage.
The policy provides that uninsured motorist coverage is available only to insured persons suffering injuries and/or damages resulting from an accident with an 'uninsured automobile' as defined. The definition of 'uninsured automobile' includes a 'hit-and-run automobile'--if that automobile makes physical contact with the insured or with an automobile which the insured is occupying at the time of the accident. This policy definition of 'hit-and-run automobile' reads as follows:
'(d) 'hit-and-run automobile' means an automobile which causes bodily injury to an insured Arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or owner of such 'hit-and-run automobile'; (2) the insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and (3) at the company's request, the insured or his legal representative makes available for inspection the automobile which the insured was occupying at the time of the accident.' (Emphasis supplied).
Section 627.0851, subdivision (1), Florida Statutes, F.S.A., provides that no automobile liability insurance shall be delivered or issued for delivery in this state unless uninsured motorist coverage is included therein, except where the named insured has rejected such coverage. That subdivision reads as follows:
'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 limits described in § 324.021(7), under provisions filed with and approved by the insurance commissioner, 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 where any insured named in the policy shall reject the coverage; provided further that, unless the named insured requests such coverage in writing, the coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.'
In Sellers v. United States Fidelity & Guaranty Co., 185 So.2d 689 (Fla.1966), in discussing the uninsured motorist statute, the Supreme Court of Florida said:
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