U.S. Fidelity & Guaranty Co. v. Sellers
| Decision Date | 04 November 1965 |
| Docket Number | No. G-378,G-378 |
| Citation | 179 So.2d 608 |
| Parties | UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant, v. Joseph SELLERS and Inez Sellers, Appellees. |
| Court | Florida District Court of Appeals |
Robert P. Gaines, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellant.
William H. Clark, of Harrell, Caro, Middlebrooks & Wiltshire, Pensacola, for appellees.
This is an appeal from a declaratory decree holding, adversely to appellant insurer's contentions, that the appellees are entitled to benefits under the uninsured motorist coverage of their policy notwithstanding a provision purporting under facts applicable to this case to limit the insurer's liability.
The appellant, United States, Fidelity and Guaranty Company, issued to appellees, Mr. and Mrs. Sellers, an automobile liability policy providing uninsured motorist coverage. Mrs Sellers was injured while riding as a passenger in an automobile owned by one Milstead, to whom Glens Falls Insurance Company, not a party to this cause, had issued a similar policy which also contained uninsured motorist coverage. The limit of liability under each of these policies was $10,000.00 for injury to each person. The operator of the automobile which collided with the automobile covered by the Glens Falls policy was uninsured and appellees made a claim against that insurer which was settled for $7,500.00. They then filed a claim based on the same injuries against appellant, U. S. F. & G., the uninsured motorist provisions of the policy issued to them by that insurer, the appellant, who then brought this suit for a declaratory decree, asserting that under the following provisions of the policy it was not liable to appellees because there was available to them through the glens Falls Insurance Company similar insurance against a loss covered by the uninsured motorist coverage of the U. S. F. & G. policy in an amount equal to the limit of liability provided by its said policy issued to appellees, viz.:
'5. Other Insurance. With respect to bodily injury to an Insured while occupying an automobile not owned by a Named Insured under this endorsement, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of this endorsement exceeds the sum of the applicable limits of liability of all such other insurance.
'With respect to bodily injury to an Insured while occupying or through being struck by an uninsured automobile, if such Insured is a Named Insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of applicable limits of liability of this insurance and such other insurance, and the Company shall not be liable under this endorsement for a greater proportion of the applicable limit of liability of this endorsement than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.
'Subject to the foregoing paragraphs, if the insured has other similar insurance available to him against a loss covered by this endorsement, the Company shall not be liable under this endorsement for a greater proportion of such loss than the applicable limit of liability hereunder bears to the total applicable limits of liability of all valid and collectible insurance against such loss.'
Appellees answered the complaint and counterclaimed for damages under the insurance contract of appellant, who replied to the counterclaim and moved for judgment on the pleadings. The undisputed facts present a question of law involving constitution of the above-quoted policy provisions in the light of Section 627.0851, Florida Statutes, F.S.A., which provides:
'Automobile liability insurance; uninsured vehicle coverage; * * *.----
'(1) 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.'
* * *
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'(4) In the event of payment to any person under the coverage required by this section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.'
The decree under review requires appellant to pay all sums which appellees shall be legally entitled to recover as damages from the operator of the uninsured automobile up to and including the policy limit of $10,000.00, irrespective of the availability of similar insurance coverage as supplied by the Glens Falls Insurance Company policy. The chancellor concluded that Section 627.0851, Florida Statutes, F.S.A., relating to uninsured vehicle coverage, requires the policy to contain provisions for protection of persons who are...
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