DOYLE J. SIMS AND VIOLA SIMS, HIS WIFE, APPELLANTS,
v.
NATIONAL CASUALTY COMPANY, APPELLEE

Fla. 3d DCA | 1965-02-09
No. 64-344
Before BARKDULL, C. J., and CARROLL and HORTON, JJ.
171 So. 2d 399 Florida District Court of Appeal, Third District (1965) Negative Treatment
Cited by 18 cases

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Synopsis

The court dismissed the wife's complaint for alimony unconnected with divorce because she failed to prove grounds for divorce or lack of support, and evidence showed she had access to significant funds.


Holding

The court held that the wife failed to meet her burden of proof for alimony unconnected with divorce, as she did not establish grounds for divorce or a lack of sufficient support.


Facts & Procedural History

The wife filed for alimony unconnected with divorce, claiming financial destitution and lack of support from her husband. However, testimony and bank …

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

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Opinion of the Court
CARROLL, Judge.

CARROLL, Judge.

This is an appeal by the plaintiffs below from a judgment denying certain recovery under an automobile insurance policy. There were involved an uninsured motorist coverage clause ($10,000), and a clause for *400payment of medical expenses ($500). The policy was one issued to plaintiffs. This case did not involve a policy issued to the other party, the tort feasor.

The plaintiff Viola Sims was injured in a collision with another vehicle. The owner-operator of the latter was not insured. Plaintiffs’ claims against the uninsured motorist were arbitrated and established in the amount of $4,100, plus certain costs. When plaintiffs’ insurer requested that plaintiffs waive their claim for medical expenses, as a condition of its payment under the uninsured motorist clause, plaintiffs brought this action against their insurer in which they sought judgment for the amount owed by the uninsured motorist and for medical expenses. The company contended it was not liable to plaintiffs under the medical expense clause because medical expenses were included in the damages for which the uninsured motorist was liable to plaintiffs. The trial court agreed, and entered judgment accordingly. In so holding the trial court was in error.

The two coverages of the policy which were involved here were separate and independent. For example, if the third party tort feasor had been insured or otherwise solvent and had paid the damages (including medical expenses) owed by him to the plaintiffs, that would not have relieved the plaintiffs’ insurer of its obligation to pay plaintiffs’ medical expenses. The Louisiana case relied on by appellee (Gunter v. Lord, 1962, 242 La. 943, 140 So.2d 11) is factually different. In that case the insurance policy involved had been issued to the tort feasor. In addition to the usual coverage, it provided for payment (without regard to fault) of medical expenses of the insured and of others resulting from operation of the vehicle. There the insurer had paid medical expenses to the injured party, under that separate clause of the policy.

In the subsequent action brought by the injured party against the tort feasor’s insurer (as permitted in Louisiana), it was held that medical expenses should be excluded from the damages recoverable. The reasoning there was that although the obligation to indemnify its insured for injury caused to another ordinarily would include all proper damages, and the obligation of the insurer to pay medical expenses of another party so injured under the medical expense clause was without reference to fault, the insurer of the tort feasor should not be required to pay such medical expenses both under the general damages and under the separate clause for medical expenses, because the party to whom they were being paid (who was not the insured) was not entitled to collect them twice, and especially since the latter had not paid any premium for the separate provision for payment of medical expenses.

We do not question the correctness of that holding on the facts of that case. Here, however, the insurer was not called upon to pay medical expenses owed by its insured to another party, but to comply with two separate contract provisions by which, in addition to its general obligation to indemnify the insured for damages to others, it had agreed to pay (1) the amount due insured from an uninsured driver, and (2) insured’s medical expenses. Under those circumstances, the fact that the damages recoverable from the uninsured driver included medical expenses was immaterial. The insurer agreed to pay such amount as should be established as due to its insured from the uninsured driver up to the limit stated. The insurer’s right of subrogation to proceed against the uninsured driver did not, as contended for by appellee, eliminate its obligation under the medical expense clause. In this case the medical expense coverage represented a contract provision of the policy, the premium for which had been paid by the injured plaintiff. In the cited Louisiana case that court, after holding that under such a policy an insurer of the tort feasor need not pay an injured (other) party twice for medical expenses, pointed out that its holding would not be applicable to *401relieve an insurer of a contract to pay medical expenses to its insured who had paid the premium for such coverage.

We hold, therefore, that it was error to deny recovery under the medical expense clause, and that it was error to deny plaintiffs an allowance for attorney’s fees as provided for in such case by § 627.0127, Fla.Stat., F.S.A.

. The judgment is reversed in the respects set out above, and the cause is remanded for further proceedings and reentry of judgment in accordance with the views herein expressed.

Reversed and remanded with directions.


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Citator

Cited By

  • …that double indemnity was not required as stated in that court’s decision of Rosen v. Fireman’s Fund Insurance Co., Fla.App., 1966, 189 So. 2d 395. That decision departed from its holdings in Sims v. [*680] National Casualty Company, Fla.App., 1965, 171 So. 2d 399, and Hack v. Great American Insurance Company, Fla.App., 1965, 175 So. 2d 594, and held when a person who has been injured on the insured’s premises and has been paid his medical expenses under a medical payment liability provision of a policy could…
  • …as the amount which it provides shall-be withheld from the latter coverage is only the part thereof which represents medical payments which are paid or payable under the separate medical expense coverage. Sims v. National Casualty Co., Fla.App.1965, 171 So. 2d 399 and Hack v. Great American Insurance Company, Fla.App.1965, 175 So. 2d 594 are not controlling here. They are distinguishable because the policies in the cited cases did not contain an effective contract provision against the double payment of medic…
  • Maxwell v. S. Am. Fire Ins. Co., 235 So. 2d 768 (Fla. 3d DCA 1970)
    …he medical payment coverage provision is separate and independent coverage from the bodily injury liability coverage. See Government Employees Insurance Company v. Sweet, Fla.App. 1966, 186 So. 2d 95; Sims v. National Casualty Company, Fla.App.1965, 171 So. 2d 399; Gordon v. New Hampshire Ins. Co., 89 N.J.Super. 246, 214 A. 2d 533 (1965); Severson v. Milwaukee Auto Ins. Co., 265 Wis. 488, 61 N.W. 2d 872, 42 A.L.R. 2d 976 (1953); 8 Appleman, Insurance Law and Practice § 4896; and 13 Couch on Insurance 2d, § 48…

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