Yablon v. North River Ins. Co., 92-3414
| Decision Date | 17 May 1995 |
| Docket Number | No. 92-3414,92-3414 |
| Citation | 654 So.2d 1033 |
| Parties | 20 Fla. L. Weekly D1184 Linda YABLON and Jeffrey Yablon, her husband, Appellants, v. NORTH RIVER INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
David H. Krathen of Krathen & Roselli, P.A., Fort Lauderdale, and Richard A. Barnett of Barnett & Hammer, P.A., Hollywood, for appellants.
Gary A. Esler and Laurie S. Moss of Esler, Petrie & Salkin, Fort Lauderdale, for appellee.
Linda and Jeffrey Yablon appeal from a final declaratory judgment finding that there was no coverage for uninsured motorist benefits to the Yablons under their North River insurance policy for any claims arising out of a motor vehicle accident on September 28, 1987. We reverse.
Based upon a stipulated statement of facts presented to the trial court, the sole issue for the trial court to determine was whether section 627.727(6), Florida Statutes (1986), and the Yablons' policy of insurance with North River, precluded the Yablons from seeking underinsured motorist coverage based on their two non-consensual settlements with joint tortfeasors. The following are the facts upon which the trial court based its determination that there was no coverage.
On September 28, 1987, Linda Yablon was involved in a motor vehicle accident. At the time of the accident, Yablon had insurance with North River, under a policy which contained benefits for uninsured/underinsured coverage (UM coverage). This policy also specifically provided:
(a) We do not provide uninsured motorists coverage for bodily injury sustained by any person if that person or the legal representative settles the bodily injury claim without our consent.
As a result of the accident the Yablons brought a negligence action against William Pott Griffith, Bell Nelson Roof and Painting Company, Inc., Ford Motor Company, and Pompano Lincoln Mercury. On October 23, 1989, the Yablons through their first attorney settled with Ford Motor Company for any and all claims arising out of the subject accident for $4500, and a release was executed in favor of Ford. The Yablons never notified North River of this settlement. On August 2, 1990, the Yablons' new attorney notified North River of a $30,000 settlement offer from Pompano Lincoln Mercury, requesting its approval. North River did not approve the settlement and said they would proceed with the defense of the UM claim. Regardless of the lack of approval, the Yablons entered into the settlement agreement with Pompano Lincoln Mercury and executed a release in favor of Pompano Lincoln Mercury. On November 6, 1992, the lower court entered the final declaratory judgment, finding that there was no UM coverage for the Yablons under their automobile insurance policy with North River, as a result of any claims arising out of the motor vehicle accident of September 28, 1987, because of the Yablons' settlements without North River's consent.
A good portion of the Yablons' argument on appeal is based on their belief that section 627.727, Florida Statutes (1986), and the provision of their policy of insurance with North River only precludes settlement with the uninsured or underinsured motorist and not other joint tortfeasors. The pertinent portion of section 627.727 is as follows:
(6) If an injured person ... agrees to settle a claim with a liability insurer and its insured for the limits of the liability and such settlement would not fully satisfy the claim for personal injuries ... such settlement shall be submitted in writing to the underinsured motorist's insurer which shall have a period of thirty days ... to agree to arbitrate ... approve the settlement, waive its subrogation rights against the liability insurer and its insured and authorize the execution of a full release. If the underinsured motorist's insurer does not agree within thirty days to arbitrate the underinsured motorist's claim and approve the proposed settlement agreement, waive its subrogation rights against the liability insurer and its insured and authorize the execution of a full release, the injured person may file suit joining the liability insurer's insured and the underinsured motorist's insurer to resolve their respective liabilities for any damages to be awarded; however, in such action the liability insurer's coverage must first be exhausted before any award may be entered against the underinsured motorist's insurer and any such award against the underinsured motorist insurer shall be excess and subject to the provisions of this...
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Allstate Ins. Co. v. Rush, 4D99-3004.
...and Wells altered the application of the term "benefits available" as defined in section 627.727(1). See Yablon v. N. River Ins. Co., 654 So.2d 1033, 1035 (Fla. 4th DCA 1995)(recognizing that when the legislature enacted section 627.727(1), it did not contemplate the abrogation of joint and......
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Bailey v. State Farm Mut. Auto. Ins. Co., 4D00-1791.
...inconsistent positions as to Jason's fault in the Salzman lawsuit and the present lawsuit. Suzanna relies on Yablon v. North River Ins. Co., 654 So.2d 1033 (Fla. 4th DCA 1995), which is factually distinguishable from the present case. In Yablon, the uninsured motorist carrier, North River, ......