SUSAN BEHRMANN, APPELLANT,
v.
INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, A FOREIGN CORPORATION AND FLORIDA NO-FAULT INSURANCE AGENCY, INC., A FLORIDA CORPORATION, APPELLEES
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In a dissenting opinion, the court argued that an insured passenger injured in an accident with an uninsured motorist should be entitled to stack uninsured motorist (UM) coverage from their own policy, in addition to the liability coverage of the other driver's policy.
The dissenting judge believed the plaintiff was entitled to the benefit of both coverages, with her UM coverage considered as protection against the uninsured motorist's liability, not stacked upon the driver's liability policy.
The plaintiff, a passenger in a vehicle, was involved in an accident with an uninsured vehicle. The plaintiff had $15,000 in UM coverage with Industri…
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HUBBART, Judge.
This is an appeal and cross appeal from a final judgment in a breach of contract action denying the plaintiff insured Susan Behrman uninsured motorist benefits from its insurance carrier, the defendant Industrial Fire & Casualty Company. We affirm.
The plaintiff was a passenger in an automobile driven by an insured motorist who collided with another automobile driven by an uninsured motorist. The plaintiff had uninsured motorist coverage with the defendant carrier which was equal to the liability insurance limits of the insured motorist, and, for that reason alone, the plaintiff is not entitled to collect uninsured motorist benefits from the defendant carrier on this accident. Dewberry v. Auto-Owners Insurance Co., 363 So. 2d 1077, 1080-81 (Fla.1978); Travelers Insurance Co. v. Wilson, 371 So. 2d 145 (Fla.3d DCA 1979); Aetna Casualty & Surety Co. v. Ilmonen, 360 So. 2d 1271 (Fla.3d DCA 1978); § 627.727(1), Fla.Stat. (1977). This result is not changed by the fact that the plaintiff is also an insured for the same limits under the uninsured motorist provision of the insured motorist’s policy, as, under identical circumstances, it has been held that the plaintiff cannot stack such uninsured motorist coverages. Yaden v. Hanover Insurance Co., 375 So. 2d 5 (Fla.4th DCA 1979).
It is unnecessary to consider the reasons stated in the final judgment for denying uninsured motorist coverage herein as it is clear that the trial court, in any event, reached the right result. In re Estate of Yohn, 238 So. 2d 290, 295 (Fla.1970). It is also unnecessary to reach the merits of the cross appeal in view of our disposition of the main appeal.
Affirmed.
SCHWARTZ, Judge
(dissenting).
In my judgment, none of the decisions cited in the majority opinion, all of which deal with markedly different situations, are controlling. The plaintiff in this case, who was ostensibly covered by $15,000 in UM insurance provided by Industrial Fire, was a passenger in a car, the driver of which was insured with $15,000 liability limits by Stonewall Insurance Company. The car was involved with another un insured vehicle in an accident in which both drivers were at fault. Under these circumstances, I believe, as the appellant contends, that she is entitled to the benefit of both coverages, with her own UM properly regarded, not as being “stacked” upon her driver’s liability policy, compare Dewberry v. Auto-Owners Ins. Co., 363 So. 2d 1077 (Fla.1978), but as representing the other, uninsured, motorist’s liability. If both drivers were insured, the plaintiff would clearly be entitled to recover, in effect, against both of their liability carriers.
Therefore, a simple application of the general rule that the purpose of UM is to provide the insured with the same protection accorded if the tortfeasor were covered by liability insurance, e. g., Aetna Casualty and Surety Co. v. Ilmonen, 360 So. 2d 1271, 1274 (Fla.3d DCA 1978), requires, I believe, a result opposite to that reached by the court.
I also agree, however, with the appellee’s contention on cross-appeal that the lower court erroneously directed a verdict in the plaintiff’s favor at the jury trial on the question of whether she had not “knowingly” rejected UM coverage offered by Industrial Fire and was therefore entitled to its protection. See Riccio v. Allstate Ins. Co., 357 So. 2d 420 (Fla.3d DCA 1978). I would reverse for a new trial on that issue alone.
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Bradley v. Gov't Emps. Ins. Co., 460 So. 2d 981 (Fla. 3d DCA 1984)…ied, 440 So. 2d 351 (Fla.1983); Scharfschwerdt v. Allstate Insurance Co., 430 So. 2d 578 (Fla. 5th DCA 1983); United States Fidelity and Guaranty Co. v. Timon, 379 So. 2d 113 (Fla. 1st DCA 1979); Behrmann v. Industrial Fire & Casualty Insurance Co., 374 So. 2d 568 (Fla. 3d DCA 1979); Travelers Insurance Co. v. Wilson, 371 So. 2d 145. Affirmed.…
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Progressive Am. Ins. Co. v. McKINNIE, 460 So. 2d 389 (Fla. 4th DCA 1984)…ANSTEAD, Chief Judge, dissenting: I agree with the dissent of Judge Schwartz set out in Behrmann v. Industrial Fire and Casualty Ins. Co., 374 So. 2d 568, 569 (Fla. 3d DCA 1979), Schwartz, J., dissenting: In my judgment, none of the decisions cited in the majority opinion, all of which deal with markedly different situations, are controlling. The plaintiff in this case, who was ostensibly covered b…
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Craft v. Gov't Emps. Ins. Co., 432 So. 2d 1343 (Fla. 2d DCA 1983)…in-sured, the insured is not entitled to collect any benefits under his UM coverage. Travelers Insurance Co. v. Wilson, 371 So. 2d 145 (Fla. 3d DCA 1979), cert. denied, 385 So. 2d 762 (Fla.1980); Behrmann v. Industrial Fire & Casualty Insurance Co., 374 So. 2d 568 (Fla. 3d DCA 1979); United States Fidelity & Guaranty Co. v. Timon, 379 So. 2d 113 (Fla. 1st DCA 1979). See also Aetna Casualty & Surety Co. v. Ilmonen, 360 So. 2d 1271 (Fla. 3d DCA 1978). As stated in Timón: The availability of one joint tortfeaso…
Previewing 3 of 8 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)
- In re Est. of Carl Sylvester Yohn, 238 So. 2d 290 (Fla. 1970)
- The Travelers Ins. Co. v. Laurence H. Wilson, 371 So. 2d 145 (Fla. 3d DCA 1979)
- Riccio v. Allstate Ins. Co., 357 So. 2d 420 (Fla. 3d DCA 1978)
- AETNA Cas. & Sur. Co. v. Ilmonen, 360 So. 2d 1271 (Fla. 3d DCA 1978)
- Yaden v. Hanover Ins. Co., 375 So. 2d 5 (Fla. 4th DCA 1979)