Valiant Ins. Co. v. Webster

• Decision Date: 26 July 1990
• Docket Number: No. 71222,71222
• Citation: 567 So.2d 408
• Parties: 15 Fla. L. Weekly S405 VALIANT INSURANCE COMPANY, Petitioner, v. Janet WEBSTER, etc., Respondent.
• Court: Florida Supreme Court

Page 408

567 So.2d 408

15 Fla. L. Weekly S405

VALIANT INSURANCE COMPANY, Petitioner, v. Janet WEBSTER, etc., Respondent.

No. 71222.

Supreme Court of Florida.

July 26, 1990.

Rehearing Denied Oct. 23, 1990.

Jonathan C. Hollingshead of Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A., Orlando, for petitioner.

Paul A. Bernardini of LaRue, Bernardini, Seitz and Tresher, Daytona Beach, and Cynthia S. Tunnicliff of Carlton, Fields, Ward, Emmanuel, Smith, Cutler and Kent, P.A., Tallahassee, for respondent.

Betsy E. Gallagher of Kubicki, Bradley, Draper, Gallagher & McGrane, P.A., Miami, amicus curiae for State Farm Mut. Auto. Ins. Co.

GRIMES, Justice.

We review Webster v. Valiant Insurance Co., 512 So.2d 971 (Fla. 5th DCA 1987), based on conflict with Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Christopher Manniel was a passenger in an automobile owned and operated by an uninsured motorist. The driver negligently operated the automobile causing it to leave the road and run into a tree. Christopher died from injuries suffered in the one-car accident. At the time of the accident, Christopher's parents, Janet Webster and Clyde Manniel, were divorced and Christopher was living with his mother.

Clyde Manniel had a standard automobile liability policy with Valiant Insurance Company (Valiant) when the accident occurred. The policy included uninsured motorist coverage. Manniel filed a claim to recover uninsured motorist benefits for damages as a survivor of his son's estate under the Florida Wrongful Death Act, sections 768.16-.27, Florida Statutes (1983). Valiant took no action on the claim.

Janet Webster, as personal representative of Christopher's estate, petitioned the trial court to compel Valiant to arbitrate the claim under the uninsured motorist provisions of Manniel's policy. Because Christopher did not reside with his father at the time of the accident, the trial court held that Christopher was not covered under the uninsured motorist provisions of Valiant's policy and dismissed the petition.

On appeal, Valiant argued that two of the uninsured motorist provisions contained in its policy excluded Manniel's wrongful death claims from uninsured motorist coverage:

We will pay damages for bodily injury sustained by a covered person and caused by an accident, which that covered person is legally entitled to recover from the owner or operator of an ... uninsured motor vehicle....

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:

1. Sustained by a covered person; and

2. Caused by an accident.

(Emphasis added.) The district court of appeal acknowledged that Christopher was not an insured or a covered person under Valiant's policy because he was not a member of his father's household and the policy contained a provision that only provided damages for bodily injuries sustained by the insured or a covered person. However, the court held that the insurance provisions in question were contrary to the requirements of section 627.727(1), Florida Statutes (Supp.1984), and reversed the trial court's ruling.

Section 627.727(1) provides in pertinent part:

No motor vehicle liability insurance policy shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle 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.

All automobile insurance policies must offer uninsured motorist protection as broad as section 627.727(1) requires. Salas v. Liberty Mut. Fire Ins. Co., 272 So.2d 1 (Fla.1972). Therefore, the question before us is whether the coverage claimed in this case was required by section 627.727(1). We answer the question in the negative.

In Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971), this Court explained that the persons for whom uninsured motorist coverage was required to be provided were the persons who were covered under the liability provisions of the automobile policy. Referring to the uninsured motorist statute (whose essential provisions remain unchanged today), the Court said:

This section provides that no automobile liability policy shall be issued with respect to any motor vehicle registered or garaged in Florida unless coverage is provided therein "in not less than the limits described in Section 324.021(7), F.S. * * * 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 "persons insured" thereunder in an automobile liability insurance policy as contemplated by F.S. chapter 324, F.S.A., the Financial Responsibility Law, ordinarily are: the owner or operator of an automobile, his spouse and other members of his family resident in his household and others occupying the insured automobile with the insured owner's permission. These insureds are protected by the policy from liability to others due to injuries they inflict by their negligent operation of the insured owner's automobile. Reciprocally, this same class of insureds is protected by uninsured motorist coverage in the same policy from bodily injury caused by the negligence of uninsured motorists.

Id. at 232. Thus, the words "persons insured" as used in the uninsured motorist statute are the same persons who are insured under the liability policy required by the financial responsibility law. ¹

Since our decision in Mullis, the courts have consistently followed the principle that if the liability portions of an insurance policy would be applicable to a particular accident, the uninsured motorist provisions would likewise be applicable; whereas, if the liability provisions did not apply to a given accident, the uninsured motorist provisions of that policy would also not apply (except with respect to occupants of the insured automobile). E.g., Auto-Owners Ins. Co. v. Queen, 468 So.2d 498 (Fla. 5th DCA 1985); Auto-Owners Ins. Co. v. Bennett, 466 So.2d 242 (Fla. 2d DCA 1984); France v. Liberty Mut. Ins. Co., 380 So.2d 1155 (Fla. 3d DCA 1980).

The decedent, Christopher Manniel, was not a resident relative of Clyde Manniel at the time of the accident. He was a passenger in an uninsured vehicle of a friend who was not utilizing an auto covered by Clyde Manniel's insurance policy. Because the liability coverage of Clyde Manniel would not apply to the accident, Clyde Manniel is not entitled to claim uninsured motorist coverage for Christopher's death.

No one disputes that if Christopher Manniel had lived he could not have recovered for his injuries under his father's uninsured motorist coverage. The court below nevertheless upheld the recovery now that Christopher has died by mistakenly focusing on the fact that Christopher's father, Clyde, was an insured under his uninsured motorist policy. The proper focus should be whether the person insured in the uninsured motorist policy suffered bodily injuries or, to put it another way, whether the person who suffered bodily injuries had uninsured motorist coverage. Clyde has a claim under the Wrongful Death Act only as a survivor, not because he was injured.

While the Wrongful Death Act creates independent claims for the survivors, these claims are also derivative in the sense that they are dependent upon a wrong committed upon another person. No Florida decision has allowed a survivor to recover under the wrongful death statute where the decedent could not have recovered. Thus, in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), this Court held that a survivor's claim is reduced by the comparative negligence of the decedent. Likewise, a prior judgment for personal injuries will bar a cause of action for wrongful death brought when the injured party subsequently dies. Variety Children's Hosp. v. Perkins, 445 So.2d 1010 (Fla.1983).

The cases of Davis v. United States Fidelity & Guaranty Co., 172 So.2d 485 (Fla. 1st DCA 1965), and Zeagler v. Commercial Union Insurance Co., 166 So.2d 616 (Fla. 3d DCA 1964), cert. discharged, 172 So.2d 450 (Fla.1965), relied upon by the court below, did not decide the issue involved in the instant case. In both of these cases, the person injured in the accident who subsequently died was an insured under the uninsured motorist policy. The issue in those cases was whether the widow, who was entitled to sue under the wrongful death statute, could recover under the policy in place of the decedent's personal representative. Uninsured motorist policies are now written to allow survivors to recover consequential damages under the wrongful death statute when the decedent was an insured.

The weight of authority in other jurisdictions also holds that a survivor in a wrongful death claim does not have a claim against the survivor's own uninsured motorist carrier when the person who suffered the bodily injury (the decedent) was not an insured under the policy. State Farm Mut. Ins. Co. v. Wainscott, 439 F.Supp. 840 (D.Alaska 1977); Smith v. Royal Ins. Co. of America, 186 Cal.App.3d 239, 230 Cal.Rptr. 495 (Ct.App.1986); Spurlock v. Prudential Ins. Co., 448 So.2d 218 (La.Ct.App.1984); Lafleur v. Fidelity & Casualty Co., 385 So.2d 1241 (La.Ct.App.), writ refused, 392 So.2d 684 (La.1980); Gillespie v. Southern Farm Bureau Casualty Ins. Co., 343 So.2d 467 (Miss.1977); see also Bakken v. State Farm Mut. Auto. Ins. Co., 139 Ariz. 296, 678 P.2d 481 (Ct.App.1983); 1 A. Widiss, Uninsured and Underinsured Motorist Insurance §§ 2.8, 4.27, 6.1 (2d ed....