Security Mut. Cas. Co. v. Pacura, 80-1515

• Decision Date: 11 August 1981
• Docket Number: No. 80-1515,80-1515
• Citation: 402 So.2d 1266
• Parties: SECURITY MUTUAL CASUALTY COMPANY, Appellant, v. Janice PACURA, Appellee.
• Court: Florida District Court of Appeals

Page 1266

402 So.2d 1266

SECURITY MUTUAL CASUALTY COMPANY, Appellant, v. Janice PACURA, Appellee.

No. 80-1515.

District Court of Appeal of Florida, Third District.

Aug. 11, 1981.

Rehearing Denied Sept. 22, 1981.

Fowler, White, Burnett, Hurley, Banick & Strickroot and A. Blackwell Stieglitz, Miami, for appellant.

Joe N. Unger, Miami, for appellee.

Before BARKDULL and DANIEL S. PEARSON and FERGUSON, JJ.

PER CURIAM.

The appellant, Security Mutual Casualty Company, seeks review of a final summary judgment for the plaintiff, awarding her damages under the medical expense coverage of an automobile insurance policy issued by the appellant to one Charles Calvin Whiddon.

On January 3, 1975, Janice Pacura was a passenger in her own automobile, which was being driven by Charles Whiddon. The automobile, which was not covered by any kind of insurance, was involved in an accident in which plaintiff Pacura (owner of the automobile) was injured, resulting in medical bills in excess of $6,000.00. Whiddon (the driver) was the son of the named insured of an automobile policy issued by the defendant (appellant herein), Security Mutual Casualty Company. At the time of the accident, Whiddon was a resident of the same household as the named insured of the Security policy. As a result of the accident, Pacura sued Security for uninsured motorist benefits and medical expense benefits. The trial court dismissed the uninsured motorist benefits claim with prejudice and granted Security a summary judgment on the medical expense benefits claim but, on rehearing, reversed itself and denied Security's motion for summary judgment. Pacura's subsequent motion for a summary judgment on her medical expense benefits claim was granted, with a summary judgment for such benefits entered in her behalf. This appeal by Security followed.

In the instant case we are considering a claim by an alleged third party beneficiary of an insurance contract. The right of a third party beneficiary to sue under a contract is recognized in Florida, but that right is limited to those situations where the provisions of the contract clearly show an intention primarily and directly to benefit the individual bringing suit or to a class of persons to which he claims to belong as a third party beneficiary. Wright v. Terry, 23 Fla. 160, 2 So. 6 (1887); McCann Plumbing Co. v. Plumbing Industry Program, 105 So.2d 26 (Fla. 3d DCA 1958); Bryant v. Cole, 282 So.2d 652 (Fla. 2d DCA 1973); Mulligan v. Wallace, 349 So.2d 745 (Fla. 3d DCA 1977).

Florida has also recognized the right of a third party beneficiary to bring an action directly against an insurer to recover under contractual provisions of medical payment coverages. Maxwell v. Southern American Fire Insurance Company, 235 So.2d 768 (Fla. 3d DCA 1970). However, in so holding, the court did not address itself to the question of whether or not the individual was in fact a third party beneficiary under the contract as that fact appeared without question. In the case sub judice, that is exactly the question at hand. The insurer claims the plaintiff was not covered by the policy, whereas the plaintiff is claiming that the policy is ambiguous and therefore she should be considered a third party beneficiary and thus insured under the medical payment coverage. ¹

As previously stated, in order to be considered a third party beneficiary to a contract, the parties to the contract must clearly intend its benefits extend to the third party. This does not appear from those portions of the policy quoted in footnote (1); in fact, the policy clearly eliminates any coverage to the plaintiff as she owned the uninsured...