Weathers v. Mission Ins. Co.

• Citation: 258 So.2d 277
• Decision Date: 15 February 1972
• Docket Number: No. 71--645,71--645
• Parties: Charles WEATHERS, Appellant, v. MISSION INSURANCE COMPANY, Appellee.
• Court: Court of Appeal of Florida (US)

Page 277

258 So.2d 277

Charles WEATHERS, Appellant, v. MISSION INSURANCE COMPANY, Appellee.

No. 71--645.

District Court of Appeal of Florida, Third District.

Feb. 15, 1972.

Rehearing Denied March 15, 1972.

Fromberg, Fromberg & Roth, Miami, for appellant.

Preddy, Haddad, Kutner & Hardy, Miami, for appellee.

Before PEARSON, CHARLES CARROLL and HENDRY, JJ.

HENDRY, Judge.

This is an appeal from a summary final judgment for the defendant insurance company in an action brought by the insured claiming uninsured motorist coverage. The appellant was the plaintiff in an action for declaratory relief. He alleged that the policy of insurance had been issued to him but that his wife had signed a 'Rejection of Uninsured Motorists Coverage.' Appellant was involved in an automobile collision with an uninsured motorist. The appellee denied his claim for coverage.

The facts are in the main undisputed. The plaintiff, Charles Weathers, was involved in an accident on June 7, 1970, at which time he was uninsured. He was employed at the time as a truck driver and it was necessary for him to obtain insurance to preserve his driving license and to continue his employment. Mr. Weathers authorized his wife, Betty J. Weathers, to obtain in insurance policy for him. He instructed her to get 'liability insurance.' Mrs. Weathers went to the James A. Cole Insurance Agency in Miami, where she requested liability insurance sufficient to keep her husband from losing his license. Mrs. Weathers was asked to sign a rejection of uninsured motorist coverage. She read the rejection form; she said that she understood that she was waiving all other coverage but for liability, and signed same. It is as follows:

'Rejection of Uninsured Motorists (Family Protection) Coverage. In accordance with the provisions of Florida Insurance Code, Section 627.0851 Part X of Chapter 627 permits the Insured named in the policy to reject the uninsured motorists (Family Protection) coverage, the undersigned Insured (and each of them) does hereby reject such coverage, being the coverage provided for the protection of persons insured under this policy who would be legally entitled to recover damages from the owner or operator of an insured motor vehicle because of bodily injury, sickness or disease, including death resulting therefrom.

/s/ Betty J. Weathers

Signature of Insured'

Based upon the application of Mrs. Weathers, the insurance policy was issued.

The policy contains the following definition:

'. . . 'named insured' means the individual named in Item 1 of the declarations and also includes his spouse, if a resident of the same household.'

Mr. Weathers testified that he had no knowledge of his wife's rejection of the uninsured motorist coverage and that a copy of the rejection by his wife was not provided to him.

The appellant and the appellee each moved for a summary final judgment. The court granted the motion of the appellee, insurance company and this appeal followed.

Appellant urges: (1) His wife who was not the insured named in the policy could not reject uninsured motorist coverage because F.S.A. § 627.0851 requires that the rejection be by the named insured. (2) The summary judgment was improperly entered because there was a genuine issue of material fact as to whether appellant's wife intentionally and knowingly rejected uninsured motorist coverage.

The first point presented requires a consideration of the applicable statute. It is F.S.A. § 627.0851 and because of its importance to the decision it is set out in full.

'627.0851 Automobile liability insurance; uninsured vehicle coverage; insolvent insurer protection.--

(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 department, 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.'

Appellant urges that the statute provides for the protection of 'persons insured' under the terms of the policy who are legally entitled to recover damages from owners or...