Tuggle v. Government Employees Ins. Co.

Decision Date31 January 1968
Docket NumberNo. 35435,35435
PartiesEldred L. TUGGLE and Catherine Tuggle, his wife, Petitioners, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a foreign corporation, Respondent.
CourtFlorida Supreme Court

Alfred D. Bieley and Thomas A. Horkan, Jr., Miami, for petitioners.

Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell and Paul A. Carlson, Miami, for respondent.

DREW, Justice.

Petitioner in this case controverts a decision of the District Court of Appeal, Third District, 185 So.2d 487. The appellate court held that an automobile insurance policy issued by respondent, providing for uninsured motorist coverage to be subject to set-off for 'separately contracted for medical payments coverage' also provided by respondent, did not violate the minimum coverage prescription of F.S. Sec. 627.0851, F.S.A. 1 Certiorari has been granted on the basis of conflict with the decision of this Court in Sellers v. United States F. & G. Co., 2 that the statute 'does not permit 'other insurance' clauses in the policy which are contrary to the statutorily limited amounts of coverage.' 3 While the opinion in Sellers expressly excludes any intent that a claimant might pyramid coverages to obtain double recovery, or more than actual damages, that decision and others recently rendered clearly hold the statute to be designed to make each policy providing uninsured motorist coverage enforceable to the full statutory minimum to exactly the same extent that a policyholder would be legally entitled to recover damages from the third party tortfeasor. 4

The decision in this case (Tuggle) has been previously considered briefly by this Court, in connection with an order dismissing a petition for certiorari here on conflict, Standard Accident Insurance Co. v. Gavin. 5 The writ in that case was properly discharged for lack of direct conflict between the cases, because of factual variance. Determination of the merits of the decision now presented, however, was not essential to the jurisdictional disposition, and we find that the opinion erroneously included the Tuggle decision in its pronouncement that 'the legal conclusions in each decision * * * are consonant with statutory requirements.'

In view of the fact that the two classes of coverage involved in the policy under consideration were contracted separately, with independent premiums, we are unable to distinguish this situation from that in Sellers, relating to multiple carriers. Nor does there appear to be any basis for treating the set-off provision as amounting only to a contractual reduction of medical benefits, contrary to the actual language of the policy stating in the provision for uninsured motorist coverage that the company shall not be obligated to pay any part of such liability which represents expense 'payable' by the insurer under its medical benefits coverage. The clause on its face is one to decrease uninsured motorist coverage beneath the statutory minimum, 6 and one which means that under certain conditions (medical benefits in excess of $10,000) there will be no uninsured motorist coverage whatever.

We conclude again that the requirement, in a policy of this nature, of 'a showing of unreimbursed loss rather than legal damages within the minimum amount, is * * * in conflict with both express and implied requirements of the law.' 7 Nor does respondent's right of subrogation under the statute, F.S. Sec. 627.0851(4), F.S.A., as construed in Sellers, supra, support the claim of set-off in the circumstances of this case.

The decision of the appellate court herein is therefore quashed and the cause remanded for disposition in accordance with this opinion, with directions that attorney's fees be awarded in accordance with petitioners' contentions on this point.

ROBERTS, THORNAL and ERVIN, JJ., concur.

BARNS, J. (Retired), dissents with opinion.

CALDWELL, C.J., dissents and agrees with BARNS, J. (Retired).

BARNS, PAUL D., Justice (Retired), (dissenting).

The question presented for review on certiorari of Tuggle v. Government Employees Insurance Company (Fla.App. 3rd District) 185 So.2d 487, is:

DOES THE LAW REQUIRE AN INSURER TO INDEMNIFY THE INSURED TWICE FOR THE SAME MEDICAL EXPENSES, WHEN THE INSURER AND THE INSURED HAVE CONTRACTED TO PAY BUT ONCE?

The trial judge and the district court held that the insurer was not required to discharge the same indemnity twice.

(We are not here involved with the 'collateral source doctrine' which denied mitigation of damages because of recovery for the same medical expenses from a source wholly independent of the subject contract as in the cases of Standard Accident Ins. Co. v. Gavin, Fla.App., 184 So.2d 229; Fla., 196 So.2d 440; Southeast Title & Ins. Co. v. Austin, Fla., 202 So.2d 179.)

The plaintiffs' claim is based on a contract of indemnity for medical expenses because of bodily injury (1) caused by 'accident' while occupying a specified Chrysler automobile; and (2) medical expenses by reason of bodily injury when 'recoverable as damages from owners or operators of uninsured motor vehicles'. The final decree of the trial judge provided that the insurer is 'entitled to set-off medical payments' against any award against the insurer based on its liability under a claim to indemnity for same medical expenses incurred for bodily injury by the uninsured motorist. Double indemnity was disallowed.

INDEMNITY AGAINST MEDICAL EXPENSES CAUSED BY AUTOMOBILE ACCIDENT

The appellee-insurer promised to indemnify to the extent of $1,000.00 not only the named insured, but each relative and any other person who sustains bodily injury caused by 'accident' while occupying the 'owned automobile' while being used by the named insured, by any resident of the same household or by any other person with the permission of the named insured. This coverage likewise extends to bodily injury expenses resulting from the operation or occupancy by the named insured or operation on his behalf of a 'non-owned automobile', as follows:

'PART II--EXPENSES FOR MEDICAL SERVICES

'Coverage C--Medical Payments: To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', caused by accident, (a) while occupying the owned automobile, (b) while occupying a non-owned automobile, but only if such person has, or reasonably believes he has, the permission of the owner to use the automobile and the use is within the scope of such permission, or (c) through being struck by an automobile or by a trailer of any type;

dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services.

Division 2. To or for any other person who sustains bodily injury, caused by accident, while occupying

(a) the owned automobile, while being used by the named insured, by any resident of the same household or by any other person with the permission of the named insured; or

(b) a non-owned automobile, if the bodily injury results from (1) its operation or occupancy by the named insured or its operation on his behalf by his private chauffeur or domestic servant, or (2) its operation or occupancy by a relative, provided it is a private passenger automobile or trailer,

but only if such operator or occupant has, or reasonably believes he has, the permission of the owner to use the automobile and the use is within the scope of such permission.

Definitions: The definitions under Part I apply to Part II, and under Part II:

'occupying' means in or upon or entering into or alighting from;

'an automobile' includes a trailer of of any type.

'* * *

'Limit of Liability: The limit of liability for medical payments stated in the declarations as applicable to 'each person' is the limit of the company's liability for all expenses incurred by or on behalf of each person who sustains bodily injury as the result of any one accident.'

INDEMNITY AGAINST TORTS BY UNINSURED MOTORIST

The another clause of the contract, the insurer promised to indemnify the insured for losses because of 'bodily injury' which the insured 'shall be legally entitled to recover as damages * * * caused by accident and arising out of the ownership, maintenance or use of an uninsured automobile'. The clause states:

'PART IV--PROTECTION AGAINST UNINSURED MOTORISTS

'Coverage J--Uninsured Motorists (Damages for Bodily Injury)

'To pay all sums which the insured or his legal representative shall be Legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile,; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

'* * *

'Definitions: The definitions under Part I, except the definition of 'insured', apply to Part IV, and under Part IV:

"Insured' means:

'(a) the named insured and may relative '(b) any other person while occupying an insured automobile; and

'(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this Part applies sustained by an insured under (a) or (b) above.

'The insurance afforded under Part IV applies separately to each insured, but the inclusion herein of more than one insured shall not operate to increase the limits of the company's liability.

"Insured automobile' means:

'(a) an automobile...

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