Weesner v. United Services Auto. Ass'n, 97-620
Decision Date | 24 April 1998 |
Docket Number | No. 97-620,97-620 |
Citation | 711 So.2d 1192 |
Parties | 23 Fla. L. Weekly D1049 John D. WEESNER and Helga S. Weesner, etc., Appellants/Cross-Appellees, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee/Cross-Appellant. |
Court | Florida District Court of Appeals |
Elizabeth C. Wheeler of Johnson and Bussey, P.A., Orlando, for Appellants/Cross-Appellees.
Jamie Billotte Moses and Reinald Werrenrath, III, of Fisher Rusher Werrenrath Wack & Dickson, P.A., Orlando, for Appellee/Cross-Appellant.
John D. and Helga S. Weesner, as personal representatives of the estate of Nicole A. Hayne, their deceased daughter, appeal a summary judgment finding that United Services Automobile Association (USAA) was not liable under its umbrella policy for uninsured motorist coverage (UM). USAA cross-appeals the denial of its request for attorney's fees under the offer of judgment statute, section 768.79, Florida Statutes (1993).
The Weesners urge that the summary judgment should not have been granted because an issue of fact existed as to whether USAA made UM coverage available when Mr. Weesner originally applied for the policy. However, Mr. Weesner's deposition undeniably indicates that he was made aware of the opportunity to add UM coverage during the application process. We find no merit in his attempt to repudiate that testimony by affidavit three years later when the motion for summary judgment was considered. Unless there exists a credible explanation for the discrepancy between the earlier and later versions, a litigant may not create a material issue in this manner in order to defeat a motion for summary judgment. Ondo v. Gieseke, 697 So.2d 921 (Fla. 4th DCA 1997).
The Weesners further claim that the opportunity to obtain UM coverage at the time of application and at a subsequent renewal was inadequate because USAA did not comply with the notice requirements of subsection 627.727(1), Florida Statutes (1993). We find subsection (1) of that statute inapplicable to non-primary policies such as the umbrella policy involved in this appeal. We do find subsection (2) applicable which provides in part:
(2) ... The limits set forth in this subsection, and the provisions of subsection (1) which require uninsured motorist coverage to be provided in every motor vehicle policy delivered or issued for delivery in this state, do not apply to any policy which does not provide primary liability insurance that includes coverage for liability arising from the maintenance, operation, or use of a specifically insured motor vehicle. However, an insurer issuing such a policy shall make available as a part of the application for such policy, and at the written request of the insured, limits up to the bodily injury liability limits contained in such policy.
See Tres v. Royal Surplus Lines Ins. Co., 705 So.2d 643 (Fla. 3d DCA 1998) ( ); Travelers Ins. Co. v. Quirk, 583 So.2d 1026 (Fla.1991)(court opined inter alia that § 627.727(2) "requires an issuer of an umbrella policy to notify an applicant of the availability of UM coverage").
Mr. Weesner admitted in his deposition that he was informed of the availability of the UM coverage when he applied for the umbrella policy. Thus, we find USAA fulfilled its only requirement under subsection 627.727(2), Florida Statutes (1989), of notifying Mr. Weesner of the availability of UM coverage when he applied for an umbrella policy with USAA. There is no similar requirement upon the renewal of the umbrella policy.
Initially, the Weesners sought UM proceeds from USAA on both their primary and umbrella policy. USAA denied coverage on the primary policy because it believed that the Weesners' daughter was not a "resident relative" under the policy, it also denied coverage under the umbrella policy because it did not contain UM coverage. However, after the Weesners' depositions were taken, USAA conceded that primary UM coverage was available, but continued to deny coverage under the umbrella policy. Later, the Weesners amended their claim to proceed only under the umbrella policy and the case proceeded solely on that claim.
USAA filed an offer of judgment pursuant to section 768.79, Florida Statutes (1993) for $100.00 on the claim under the umbrella policy. Several motions for summary judgment were then filed by the parties, all of which were denied except the final one which terminated the litigation in favor of USAA. The...
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