U.S. Fidelity & Guaranty Co. v. Gordon, EE-8
| Decision Date | 08 May 1978 |
| Docket Number | No. EE-8,EE-8 |
| Citation | 359 So.2d 480 |
| Parties | UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Dock GORDON, Appellee. |
| Court | Florida District Court of Appeals |
Mary Jane S. Trimble of Dell, Graham, Willcox, Barber, Ryals & Henderson, Gainesville, for appellant.
Craig F. Hall of Barton & Cox, Gainesville, for appellee.
Gordon was injured in an automobile accident in December 1973 when the vehicle he was driving was rear-ended by a vehicle driven by James Stephens. Stephens' liability police limits were $10,000 per individual per occurrence. In September 1974, Gordon accepted $9,600 from Allstate, Stephens' liability insurance carrier, in settlement and release of his claim against Stephens and Allstate.
At the time of the accident, Gordon was insured by United States Fidelity and Guaranty Company (USF&G) and his policy provided uninsured motorist coverage of $10,000 each on two vehicles or, when stacked, $20,000. On 1 March 1976, Gordon made a claim to USF&G for underinsured motorist benefits, and on 13 April 1976, filed a claim in arbitration against USF&G. USF&G then filed its complaint for declaratory judgment to determine its obligation, if any, to Gordon under its uninsured motorist coverage. In its complaint for declaratory judgment, USF&G asserted that by reason of Gordon's settlement with Stephens and Allstate and the release of those parties, Gordon had waived any right to underinsured motorist benefits under his policy and the Uninsured Motorist Statute, Section 627.727, Florida Statutes (1975). Gordon asserted by way of affirmative defense that USF&G was not prejudiced by the settlement and was precluded from raising the issue of waiver by the terms of the policy. Gordon also counterclaimed for underinsured motorist benefits and attorney's fees. Final declaratory judgment and partial summary judgment was entered in favor of Gordon and USF&G appeals.
The trial court found that Gordon's settlement with Stephens and Allstate for an amount less than the full amount of liability insurance carried by Stephens did not represent the amount which Gordon had determined to be the full extent of his damages and did not constitute a waiver of any right to uninsured motorist benefits to which Gordon might be entitled under the terms and conditions of his insurance contract with USF&G. We agree.
Section 627.727 pertains to uninsured vehicle coverage. Section 627.727(1) states that uninsured motor vehicle coverage is 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 . . . ." The Section further provides that such coverage ". . . shall be excess over, but shall not duplicate the benefits available to an insured . . . under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle . . . ." Section 627.727(2)(b) defines "uninsured motor vehicle" as including an insured motor vehicle when the insurer thereof:
"Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under (his) uninsured motorist's coverage."
There is nothing in Section 627.727 that indicates that the insured must exhaust all benefits available from other sources before being eligible to recover under his uninsured vehicle coverage. The Section merely states that uninsured vehicle coverage shall be excess over and not duplicate other available benefits.
In this case, there was available to Gordon $10,000 from Stephens' liability insurance. If Gordon's damages are $10,000 or less then Gordon cannot collect from USF&G, since such recovery would duplicate available benefits, however, if Gordon sustained damages of over $10,000 he can recover the amount over $10,000 which is within the limits of his coverage.
USF&G contends that Gordon is precluded from claiming damages of over $10,000 since he settled with Allstate for $9,600. The fact that Gordon settled for an amount less than the full amount of liability insurance carried by Stephens...
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Farmers Ins. Exchange v. Hurley
...447, 453; Hamilton v. Farmers Ins. Co. of Washington (1987) 107 Wash.2d 721, 727-728, 733 P.2d 213, 216-217; U.S. Fidelity and Guar. Co. v. Gordon (Fla.App.1978) 359 So.2d 480, 482.)2 Typically, these decisions reason that a discounted settlement may make economic sense in view of the costs......
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