AETNA LIFE & CASUALTY CO., A FOREIGN CORPORATION, APPELLANT,
v.
JANE M. STANGER, APPELLEE
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The court held that a negligent tortfeasor's liability payment should be set off against uninsured motorist coverage, and attorneys' fees cannot be awarded to a non-contracting insured.
An automobile insurer appealed a judgment determining uninsured motorist coverage and awarding attorneys' fees. The action was a declaratory judgment …
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BERANEK, Judge.
This is an appeal by an automobile insurer from a final judgment determining available uninsured risk coverage and awarding attorneys’ fees. The action below was for declaratory decree and is based on stipulated facts. Appellant raises three points.
Under Point I appellant contends the trial court erroneously stacked coverages. We have reviewed the evidence and the judgment below and find the court’s disposition of this point to be without error. The coverages in question were provided under policies under which appellee was in fact an insured. These policies provided a total of $40,000 uninsured motorists coverage.
Appellant’s second point challenges the computation of the total insurance fund available to appellee. The trial court found the total uninsured fund available to be $40,000. Appellant claims that the amount of $25,000 which was paid by the negligent tortfeasor under his liability should have been set off. We conclude that appellant is correct in this regard in view of the Supreme Court’s decision in Dewberry v. Auto Owners Insurance Company, 363 So. 2d 1077 (Fla.1978). Thus, the finding by the trial court is reversed and the matter remanded to the trial court to determine the appellant’s pro rata share of the available $15,000 in uninsured motorists coverage which the carrier is obligated to pay in accordance with the opinion cited above.
The third and last point raises the issue of attorneys’ fees. Appellee was not in fact a contracting insured of appellant and the award of attorneys’ fees is, therefore, reversed in light of Roberts v. Carter, 350 So. 2d 78 (Fla.1977).
The cause is .affirmed in part and reversed in part in accordance with the above. AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH INSTRUCTIONS.
CROSS, J., and SMITH, CHARLES E., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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United States Fid. & Guar. Co. v. State Farm Mut. Auto. Ins. Co., 369 So. 2d 410 (Fla. 3d DCA 1979)…In each of these cases, incidentally, attorney’s fees were recovered by the successful additional or omnibus insured. . To the extent that Aetna Life Ins. Co. v. Sievert, 361 So. 2d 747 (Fla. 1st DCA 1978) and Aetna Life & Casualty Co. v. Stanger, 367 So. 2d 728 (Fla. 4th DCA 1979), express contrary views, we simply do not follow those decisions. We venture to suggest that these cases may be in direct conflict with Roberts itself, on the ground that they accept Roberts as controlling authority in situations…
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Indus. Fire & Cas. Ins. Co. v. Prygrocki, 422 So. 2d 314 (Fla. 1982)…motorist’s policy denied attorney’s fees); Tracey v. Florida Ins. Guaranty Ass’n, 414 So. 2d 1159 (Fla. 3d DCA 1982) (passenger in automobile driven by unrelated named insured denied attorney’s fees); Fernandez; Aetna Life & Casualty Co. v. Stanger, 367 So. 2d 728 (Fla. 4th DCA 1979) (denying attorney’s fees to an insured under an uninsured motorist policy because not the contracting insured); Aetna Life Ins. Co. v. Sievert, 361 So. 2d 747 (Fla. 1st DCA 1978) (wife insured under deceased husband’s policy deni…
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Norfolk v. Nationwide Mut. Fire Ins. Co., 407 So. 2d 1014 (Fla. 5th DCA 1981)…etation of the language used in Roberts and have denied the right to claim attorney fees to an insured person other than the named insured. See Aetna Life Ins. Co. v. Sievert, 361 So. 2d 747 (Fla. 1st DCA 1978), and Aetna Life & Cas. Co. v. Stanger, 367 So. 2d 728 (Fla. 4th DCA 1979). On the other hand, the Third District Court of Appeal, in United States Fidelity & Guaranty Co. v. State Farm Mut. Automobile Ins. Co., 369 So. 2d 410 (Fla. 3d DCA 1979), held that the Florida Supreme Court’s use of the phrase “…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dewberry v. Auto-Owners Ins. Co., 363 So. 2d 1077 (Fla. 1978)
- Roberts v. Carter, 350 So. 2d 78 (Fla. 1977)