UNITED SERVICES AUTOMOBILE ASSOCIATION, APPELLANT/CROSS APPELLEE,
v.
LINDA V. STRASSER, ETC., APPELLEE/CROSS APPELLANT

Fla. 4th DCA | 1988-08-31
No. 87-1216
ANSTEAD, LETTS and WALDEN, JJ., concur.
530 So. 2d 1026 Florida District Court of Appeal, Fourth District (1988) Caution
Cited by 12 cases

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Synopsis

In this declaratory judgment action, the court addressed whether an insurer must provide full uninsured/underinsured motorist coverage without setoff when it fails to notify the insured of the availability of excess underinsured motorist coverage as required by statute. The court held that the statutory notice requirement applies to all of section 627.727, including excess coverage provisions, and therefore the insurer must pay full limits without setoff.


Holding

The court held that the statutory notice requirement in section 627.727 applies to the entire section, including excess underinsured motorist coverage provisions, and therefore the insurer's failure to provide notice requires payment of full policy limits without setoff. The court also affirmed denial of prejudgment interest in personal injury damage actions, though it certified a question to the Supreme Court regarding this issue.


Headnotes

[1] An insurer must annually notify the named insured of their options regarding uninsured/underinsured motorist coverage as required by statute.

[2] Failure to advise an insured of the availability of excess underinsured motorist coverage, as required by statute, precludes the insurer from claiming a setoff for other…

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Key Quotes

“Each insurer shall at least annually notify the named insured of his options as to coverage required by this section.”

This statutory language was interpreted by the court to require insurers to notify insureds of all coverage options under the entire section 627.727, including excess underinsured motorist coverage, not just basic uninsured coverage.

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Facts & Procedural History

Dr. Harold Strasser was fatally injured on February 10, 1983 when he stopped to assist passengers of an overturned car and was struck by a second vehi…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal and a cross appeal from a declaratory judgment in an insurance case.

Doctor Harold Strasser was killed on February 10, 1983 when he stopped to give medical assistance to the passengers of an overturned car. A second car hit the overturned car, caused it to collide with Stras-ser, and fatally injured him. Dr. Strasser was insured by United Services Automobile Association, the defendant, and had uninsured/underinsured motorist coverage with limits of $200,000. The other two cars were insured under separate policies for bodily injury liability coverage in the total amount of $65,000. Dr. Strasser’s estate argued that his insurer should be liable for the full $200,000, whereas United Services asserted that there should be a setoff of $65,000 for the coverage provided by the other drivers because Dr. Strasser had only underinsured motorist coverage, not excess underinsured motorist coverage.

The applicable statute is section 627.727, Florida Statutes (Supp.1982), which provides:

(1) No motor vehicle liability insurancé policy shall be delivered ... unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.... However, the coverage required under this section is not applicable when, or to the extent that, any insured named in the policy rejects the coverage in writing_ Unless the named insured ... requests such coverage in writing, the coverage need not be provided in or supplemental to any other policy which renews, extends, changes, supersedes, or replaces an existing policy issued to him by the same insurer, when the named insured or lessee had rejected the coverage in connection with a policy previously issued to him by the insurer. Each insurer shall at least annually notify the named insured of his options as to coverage required by this section. Such notice shall be part of the notice of premium, shall provide for a means to allow the insured to request such coverage, and shall be given in a manner approved by the department. ...

(2)(b) In addition, the insurer shall make available, at the written request of the insured, excess underinsured motor vehicle coverage, providing coverage for an insured motor vehicle when the other person’s liability insurer has provided limits of bodily injury liability for its insured which are less than the damages of the injured person purchasing such excess underinsured motor vehicle coverage. Such excess coverage shall provide the same coverage as the uninsured motor vehicle coverage provided in subsection (1), except that the excess coverage shall also be over and above, but shall not duplicate, the benefits available under the other person’s liability coverage. The amount of such excess coverage shall not be reduced by a setoff against any coverage, including liability insurance. An insurer shall not provide both uninsured motor vehicle coverage and excess underinsured motor vehicle coverage in the same policy, [emphasis added]

Under section 627.727(1) an insurance company is required to provide uninsured motor vehicle coverage unless it is specifically rejected in writing. Under this type of policy the insured is covered in the full amount of the limits of the policy with a reduction or setoff for other available insurance coverage. Subsection (1) required each insurer to annually notify the insured of his options as to coverage “required by this section”. In contrast the excess underinsured motor vehicle coverage described in section 627.727(2) does not allow the insurance company a setoff for other available insurance coverage.

United Services argued that Strasser’s policy was not excess underinsured motor vehicle coverage and therefore United Services was entitled to a setoff of $65,000. Dr. Strasser’s estate responded that United Services was not entitled to any setoff because the insurance company failed to advise Dr. Strasser of the availability of excess underinsured motor vehicle coverage as required by statute.

The trial court ruled that United Services failed to comply with section 627.727, Florida Statutes (Supp.1982) because there was no evidence that the insurer advised Stras-ser of the availability of the excess under-insured motor vehicle coverage. Therefore, the trial court ruled that United Services was required to provide the full limits of coverage in the amount of $200,000 with no setoff. The trial court also ruled that Dr. Strasser’s estate was not entitled to any award of prejudgment interest but the ruling was specifically without prejudice to Strasser’s right to seek recovery of prejudgment interest in any later proceeding or action based upon any breach of contract. United Services appeals from the final judgment and Dr. Strasser’s estate cross appeals from denial of prejudgment interest.

We affirm the main appeal on the basis of the language of the statute which provides, “Each insurer shall at least annually notify the named insured of his options as to coverage required by this section.” The legislature must have intended to make the notice provision applicable to the entire section 627.727 and not just subsection 627.727(1) because of the use of the term “section.” If the legislature had intended only to require the insurance companies to give notice of the uninsured/underinsured coverage available and not the excess coverage then it would have used the term “subsection” rather than “section.” We also affirm the main appeal on authority of Spira v. Guaranty National Insurance Company, 468 So. 2d 540 (Fla. 4th DCA 1985) and the cases cited therein. In Spira this court reversed the denial of excess uninsured motorist coverage because “the record does not reveal any evidence that the carrier offered uninsured motorist coverage equal to excess liability limits pursuant to section 627.-727(1), Florida Statutes (1983).” This indicates that this court has found the notice requirement to be applicable to all of section 627.727, including the subsection on excess uninsured motorist coverage. Our research found no cases other than Spira and the cases cited therein which would support reversal.

Next, we address the cross appeal which seeks review of the denial of prejudgment interest. Dr. Strasser’s estate argues that it was entitled to interest at the legal rate from the date the debt was due even though there was a dispute as to the amount or the obligation to pay. We affirm the denial of prejudgment interest on authority of Cooper v. Aetna Casualty and Surety Company, 485 So. 2d 1367 (Fla. 2d DCA 1986) which holds that prejudgment interest is not recoverable under these circumstances because the action is essentially one for the recovery of personal injury damages. We also rely on footnote number one in Argonaut Insurance Company v. May Plumbing Company, 474 So. 2d 212 (Fla.1985) wherein the supreme court acknowledged that, “We are mindful that this Court has ruled that prejudgment interest is not recoverable on awards for personal injury. Zorn v. Britton, 120 Fla. 304, 162 So. 879 (1935); Farrelly v. Heuacker, 118 Fla. 340, 159 So. 24 (1935).” We recognize the contra authority contained in Standard Accident Insurance Company v. Gavin, 184 So. 2d 229 (Fla. 1st DCA 1966).

Although the cross appellant has brought to our attention other cases in which courts awarded prejudgment interest, we distinguish those cases because they do not deal with personal injury damages. Nevertheless, because the issue is one of great public importance we certify the following question to the supreme court:

May prejudgment interest be allowed in an action seeking benefits under uninsured/underinsured motorist coverage where the action is based upon a contract of insurance when the action is essentially one for the recovery of personal injury damages?

ANSTEAD, LETTS and WALDEN, JJ., concur.


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Cited By

  • Lumbermens Mut. Cas. Co. v. Percefull, 653 So. 2d 389 (Fla. 1995)
    …his money to pay medical bills or for some other purpose does not change the fact that a debt has been created. We distinguish Aetna Casualty & Surety Co. v. Langel, 587 So. 2d 1370 (Fla. 4th DCA 1991), United Services Automobile Ass’n v. Strasser, 530 So. 2d 1026 (Fla. 4th DCA 1988), and Cooper v. Aetna Casualty & Surety Co., 485 So. 2d 1367 (Fla. 2d DCA 1986), in which claims for prejudgment interest were denied. While these uninsured motorist recoveries were based upon contracts of insurance, they actually…
  • AETNA Cas. & Sur. Co. v. Edward Langel & Joan Langel, 587 So. 2d 1370 (Fla. 4th DCA 1991)
    …d upon a contract of insurance, it was still essentially one for the recovery of personal injury damages, and, accordingly, the [plaintiffs] were not entitled to pre-judgment interest.” This court agreed in United Services Auto. Ass’n, v. Strasser, 530 So. 2d 1026, 1027 (Fla. 4th DCA 1988), and therein affirmed the denial of pre-judgment interest. The trial court was wrong here, then, in allowing it. Aetna’s final point on appeal relates to the award of $38,000, payable by Aetna, to two of the Langels’ attor…
  • Morrison v. Universal Underwriters Ins. Co., 543 So. 2d 425 (Fla. 5th DCA 1989)
    …and Guaranty Company v. Woolard, 523 So. 2d 798 (Fla. 1st DCA 1988) as authority for their position. Prior to the 1984 amendment, there were two forms of U.M. coverage available to policy holders. United Services Automobile Association v. Strasser, 530 So. 2d 1026 (Fla. 4th DCA 1988). Under standard U.M. coverage, the amount of protection available to a policy holder could be reduced (set-off) by any liability insurance available to him from the tortfeasor and U.M. coverage was intended to be a mirror image o…

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