U.S. Fidelity & Guaranty Co. v. Waln

• Decision Date: 18 March 1981
• Docket Number: No. 80-239,80-239
• Citation: 395 So.2d 1211
• Parties: UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Keith K. WALN, Appellee.
• Court: Florida District Court of Appeals

Page 1211

395 So.2d 1211

UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Keith K. WALN, Appellee.

No. 80-239.

District Court of Appeal of Florida, Fourth District.

March 18, 1981.

Rehearing Denied April 15, 1981.

Steven Billing of Hainline & Billing, P. A., and Nancy Little Hoffmann of Nancy Little Hoffmann, P. A., Fort Lauderdale, for appellant.

Dewey A. F. Ries, Fort Lauderdale, and Joel Berman, Plantation, for appellee.

HERSEY, Judge.

This appeal presents two questions of statutory interpretation involving Section 627.727(1) Florida Statutes, pertaining to Uninsured/Underinsured Motorist coverage.

Appellant Insurance Company first issued an automobile liability policy to appellee in 1970. A renewal policy was issued each year thereafter containing uninsured motorist coverage. The policy for 1974-1975 provided bodily injury liability coverage of $100,000 per person and $300,000 per occurrence. Uninsured motorist coverage of $15,000/$30,000 was included. Because of a change in the law applicable to that year and policy, appellee was advised by appellant that his policy was required to contain uninsured motorist coverage equal to his bodily injury liability limits unless he specifically elected another alternative. He was requested to select one of three available options: (1) to increase uninsured motorist coverage to equal bodily injury liability limits, at an additional cost of $84.00; or (2) to continue the coverage contained in his policy; or (3) to reject uninsured motorist coverage entirely. Appellant specifically elected the second alternative.

A policy containing the same coverages was issued for 1975-1976. Two days after the effective date of this policy, a "change in automobile policy" went into effect, deleting one automobile and adding another. As a result of this substitution there were slight changes in premium caused by differences in values of the two cars, so that collision and comprehensive coverages required adjustment.

Appellee was involved in an automobile accident and made a claim under his uninsured motorist coverage. The parties stipulated that whatever the amount of coverage available, appellee was entitled to stack his coverage since he owned two insured automobiles. The disagreement arose over the amount involved.

Appellant takes the position that the 1975-1976 policy was a "renewal" rather than a new policy. The applicable statute with the pertinent portion emphasized provides:

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 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. However, the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage. When a vehicle is leased for a period of 1 year or longer and the lessor of such vehicle, by the terms of the lease contract, provides liability coverage on the leased vehicle in a policy wherein the lessee is a named insured or on a certificate of a master policy issued to the lessor, the lessee of such vehicle shall have the sole privilege to reject uninsured motorist coverage. Unless the named insured, or lessee having the privilege of rejecting uninsured motorist coverage, requests such coverage in writing, the coverage need not be provided in or supplemental to a renewal policy when the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer. § 627.727(1), Fla.Stat. (1976 Supp.)

Under appellant's view there was no requirement to obtain another written waiver from appellee in connection with the "change in automobile policy" and the coverage remained at $15,000/$30,000.

Appellee takes the view that substitution of automobiles required a "new" policy and since appellant failed to require a new waiver from him the uninsured motorist coverage was automatically increased to $100,000/$300,000.

The trial court agreed with appellee's position and rendered judgment finding coverage after stacking of $200,000.

The controlling law was established in Hartford Accident and Indemnity Co. v. Sheffield, 375 So.2d 598 (Fla.3d DCA 1979). In that case a policy containing lower liability limits than a preceding one, as to which uninsured motorist coverage had been expressly waived, was not a renewal policy within the contemplation of the statute. Accordingly, uninsured motorist insurance was available in the same amount as the bodily injury liability coverage. The test established by the Sheffield court, which we adopt, was whether the original policy has been changed "in any material respect." If it has, then the policy is "new" rather than a "renewal" and the insurance company is required to provide the insured with an opportunity to reject uninsured motorist coverage or to elect a decreased amount. This interpretation is based upon public policy favoring uninsured motorist coverage. Hodges v. National Union Indemnity Co., 249 So.2d 679 (Fla.1971).

We have previously held that the addition of an automobile by endorsement to an insurance policy required the insurance company to afford the insured a new opportunity to reject uninsured motorist coverage. United States Fire Insurance Co. v. Van Iderstyne, 347 So.2d...