Travelers Ins. Co. v. Spencer

• Decision Date: 10 April 1981
• Docket Number: No. UU-351,UU-351
• Citation: 397 So.2d 358
• Parties: The TRAVELERS INSURANCE COMPANY, a Foreign Corporation, Appellant, v. C. Holley SPENCER, Appellee.
• Court: Florida District Court of Appeals

Page 358

397 So.2d 358

The TRAVELERS INSURANCE COMPANY, a Foreign Corporation, Appellant, v. C. Holley SPENCER, Appellee.

No. UU-351.

District Court of Appeal of Florida, First District.

April 10, 1981.

Rehearing Denied May 14, 1981.

Philip A. Bates of Emmanuel, Sheppard & Condon, Pensacola, for appellant.

Jack Locklin, Jr., and T. Sol Johnson of Johnson, Green & Westmoreland, Milton, for appellee.

ERVIN, Judge.

In this declaratory judgment action, Travelers Insurance Company appeals a summary judgment entered against it which determined that appellee had uninsured motorist (UM) coverage with Travelers in an amount equal to the bodily injury (BI) liability coverage available to him under the terms of his partnership policy. We affirm.

In May, 1977, C. Holley Spencer suffered an accident while driving his son's vehicle a vehicle which had not been listed in his partnership policy. The other vehicle involved in the accident had liability limits of only $10,000, so Spencer sought underinsured motorist benefits through his partnership's policy. The policy carried $300,000 liability limits, but provided that UM coverage was $15,000 per person.

Travelers first contends that Spencer is not entitled to UM coverage under the terms of his partnership policy because such coverage extends only to vehicles listed in the policy. The policy, however, designates Holley Spencer, together with the other partners, as a named insured. A named insured is designated by the rule in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971), as a class one insured (i. e., the named insured, his spouse and any relative who was a resident of the same household), and such insureds are entitled to UM coverage "whenever or wherever bodily injury is inflicted upon (them) by the negligence of ... uninsured (or underinsured) motorist(s)." 252 So.2d at 238. Therefore, any provision in an insurance policy attempting to limit a named insured's right to UM benefits only as to automobiles listed in his policy must be condemned as contrary to the public policy as expressed in Section 627.727(1).

Travelers next argues that the lower court erred in granting summary judgment against it because there remained unresolved material issues of fact on the question whether the named insured rejected UM coverage in an amount less than that purchased by him for BI liability protection. While the Travelers agent did not obtain a written rejection of a lesser amount of UM coverage, he nevertheless testified that he had received an oral rejection, which may, under appropriate circumstances, satisfy the statute's requirements. See Glover v. Aetna Insurance Co., 363 So.2d 12 (Fla. 1st DCA 1978). The agent stated that it was his general practice to offer UM coverage in accordance with the statute, and, while he was sure that he had discussed with the named insured his right to reject, this statement was qualified by his responses that he could not recall any instance when he had done so. On the other hand, Spencer denied that he had ever rejected UM coverage in any such lesser sum, and in fact had assumed before the accident that his UM limits equaled his BI limits.

The focal question before us is what type of evidence is sufficient to raise a genuine issue of material fact as to whether the insurer has met Section 627.727(1)'s requirement of offering UM coverage in an amount no "less than the limits of bodily injury liability insurance purchased by the named insured, ..."? When a statute commands that its provisions can only be met by following a specific method, and the evidence reveals that its requirements were not observed, summary judgment is appropriately entered because the controversy is considered one of law, and not one involving a disputed issue of material fact. See Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla.1952); Duprey v. United Services Auto Ass'n., 254 So.2d 57 (Fla. 1st DCA 1971). For example, in Locke v. Stuart, 113 So.2d 402 (Fla. 1st DCA 1959), summary judgment was held appropriately granted upon facts showing that a tax deed had incorrectly been issued due to the clerk's failure to forward notice to the former owner of the land stating that the property was being or would be advertised and sold for taxes, as required by Section 194.18, Florida Statutes (1957). We concluded that once "it was shown without contradiction that the clerk failed to give notice as required by the statute, it follows that there was no issue of fact for determination by a jury." 113 So.2d at 404.

Similarly, in the case at bar, no disputed issue of material fact remained undetermined. Section 627.727(1) has uniformally been interpreted as requiring nothing less than an affirmative, informed...