WILLIAM H. HINES, APPELLANT,
v.
WAUSAU UNDERWRITERS INSURANCE COMPANY, APPELLEE

Fla. 2d DCA | 1982-01-13
No. 81-357
DANAHY, J., concurs., RYDER, J., dissents.
408 So. 2d 772 Florida District Court of Appeal, Second District (1982) Positive Treatment
Cited by 14 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

A policy provision attempting to exclude uninsured motorist coverage for injuries sustained by an insured while occupying a vehicle not insured under that policy is void as against public policy, especially when the situation is exempted from the anti-stacking statute.


Headnotes

[1] Uninsured motorist coverage is personal to an insured and does not attach to a specific vehicle; therefore, a policy provision attempting to exclude or limit coverage to…

[2] A policy provision attempting to exclude uninsured motorist coverage for bodily injury sustained by a family member while occupying a non-insured vehicle owned by the ins…

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Appellant was injured in a collision with an uninsured motorist while driving his wife's car, which was insured under a separate policy. His wife's in…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
OTT, Judge.

OTT, Judge.

While driving his wife’s car, which she separately owned and separately insured under a policy that included uninsured motorist coverage, appellant was seriously injured in a collision with an uninsured motorist. Appellant was an additional insured (not a named insured) under his wife’s policy. His wife’s insurer paid appellant uninsured motorist benefits to the limits of its policy. Appellant then sought additional benefits from appellee, the insurer of his separately owned vehicle under a separate policy which also included uninsured motorist coverage but provided:

Exclusions.

A. We do not provide uninsured motorist’s coverage for bodily injury sustained by any person:

1. While occupying, or when struck by, any motor vehicle or trailer of any type owned by you or any family member which is not insured for this coverage under this policy.

Appellee denied the claim and, upon the filing of this action, successfully moved to dismiss it on the ground that appellant had no uninsured motorist coverage under the policy because of the foregoing exclusionary clause. In purported reliance upon the decision of this court in State Farm Mutual Automobile Insurance Co. v. Wimpee, 376 So. 2d 20 (Fla.2d DCA 1979), the trial court dismissed the action with prejudice. We reverse.

One who purchases uninsured/under-insured motorist coverage thereby furnishes liability insurance to any uninsured/underinsured motorist who might thereafter injure any person covered as an insured under the policy. Dewberry v. Auto Owners Insurance Co., 363 So. 2d 1077, 1081 (Fla.1978); Kenilworth Insurance Co. v. Drake, 396 So. 2d 836, 839 (Fla.2d DCA 1981). Consequently, uninsured motorist coverage is personal to an insured and differs from liability coverage in that it does not attach to a specific vehicle. A policy provision attempting to exclude coverage or limit it to injuries received in a particular vehicle is void as against public policy. Mullis v. State Farm, 252 So. 2d 229 (Fla.1971); Travelers Insurance Co. v. Spencer, 397 So. 2d 358 (Fla. 1st DCA 1981); Lee v. State Farm Mutual Automobile Insurance Co., 339 So. 2d 670 (Fla.2d DCA 1976), cert. denied, 348 So. 2d 954 (Fla.1977).

In Lee, upon facts and policy provisions virtually identical to those in the instant case, we held the “household member” exclusion unenforceable.

Appellee argues that Mullis is no longer valid,1 in that the public policy upon which it (and its progeny) relied was repudiated by the legislature by the enactment of the so-called “anti-stacking” statute, section 627.4132, Florida Statutes (1976), and great reliance is placed upon State Farm v. Wim-pee, supra. Appellant responds that the rationale of Wimpee was invalidated by South Carolina Insurance Co. v. Kokay, 398 So. 2d 1355 (Fla.1981), where the supreme court disapproved the reasoning of McLellan v. State Farm, 366 So. 2d 811 (Fla. 4th DCA 1979), on which our sister court in the third district had relied in State Farm v. Kuhn, 374 So. 2d 1079 (Fla.3d DCA 1979), which was an opinion upon which we, in turn, had relied in Wimpee.

As with any opinion, Wimpee has significance with respect to only its own particular facts. Young Wimpee, who resided with his father, was covered with uninsured motorist insurance under a policy issued to his father, in which only the father’s car was listed. The son was injured (by an uninsured motorist) while driving his own car. We held that the son could not recover uninsured motorist benefits under his father’s policy because the anti-stacking statute (§ 627.4132) specifically directs that “an insured is protected only to the extent of coverage he has on the vehicle involved in the accident.” We interpreted that language to mean that since the son had no uninsured motorist coverage on his own car, he necessarily had no uninsured motorist coverage under his father’s policy.

Whether our analysis and conclusion in Wimpee was right or wrong is of no consequence here. The case before us now involves separate policies, separate vehicles, and separate named insureds. The concluding sentence of section 627.4132 expressly exempts such situations from its purview. Justice England’s wry comment in his concurring opinion in South Carolina Insurance Co. v. Kokay, supra, chronicles the judicial effort that was expended in convincing insurers that the statutory language simply means what it so simply states.

The trial court erred in concluding that appellant was barred from recovering benefits from his own insurer as well as from his wife’s insurer. Accordingly, the judgment of dismissal is REVERSED and the case is REMANDED to the court below for further proceedings.

DANAHY, J., concurs.

RYDER, J., dissents.

. Shortly before handing down its opinion in Kokay, our supreme court reviewed Mullis in United States Fidelity and Guaranty Co. v. Curry, 395 So. 2d 530 (Fla.1981). No intervening invalidity or weakness of Mullís was noted. While perhaps not conclusive of the issue broached here, such unqualified reference to Mullís approaches reaffirmation of its holding, or at least constitutes respectable dictum that the anti-stacking statute did not vitiate it.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Curtin v. State Farm Mut. Auto. Ins. Co., 449 So. 2d 293 (Fla. 5th DCA 1984)
    …n son is a “class-one” insured under his father’s policies. As such, the uninsured motorist coverage of his father’s policies follows him, no matter where or how he is injured by an uninsured motorist. Hines v. Wausau Underwriters Insurance Company, 408 So. 2d 772 (Fla. 2d DCA 1982); Travelers Insurance Company v. Spencer, 397 So. 2d 358 (Fla. 1st DCA 1981). It is also clear (for purposes of the summary judgment) that his injuries were caused by an uninsured motorist. State Farm urges that it has excluded fro…
  • Auto. Ins. Co. of Hartford v. Beem, 469 So. 2d 138 (Fla. 3d DCA 1985)
    …by the statute is where any insured named in the policy shall reject the coverage. The named insured herein did not reject the statutory coverage. See Curtin v. State Farm Mutual Auto Insurance Co., supra; Hines v. Wausau Underwriters Insurance Co., 408 So. 2d 772 (Fla. 2d DCA 1982); Travelers Insurance Co. v. Spencer, 397 So. 2d 358 (Fla. 1st DCA 1981). For the reasons stated we hold that the trial court did not err in entering a summary final judgment in favor of Beem and against Hartford. Affirmed.…
  • State Farm Mut. Auto. Ins. Co. v. Lewis, 425 So. 2d 603 (Fla. 4th DCA 1982)
    …South Carolina Insurance Co. v. Kokay, 398 So. 2d 1355 (Fla.1981). In opposition to the eases relied on by appellant appellees cite Travelers Insurance Co. v. Spencer, 397 So. 2d 358 (Fla. 1st DCA 1981); Hines v. Wausau Underwriters Insurance Co., 408 So. 2d 772 (Fla. 2d DCA 1982); and Harbach v. New Hampshire Insurance Group, 413 So. 2d 1216 (Fla. 5th DCA 1982). Each of these cases was decided while section 627.4132 was in effect and under policy exclusions similar to those in the instant case. In Spencer…

Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw