THE TRAVELERS INDEMNITY COMPANY, APPELLANT,
v.
THOMAS J. POWELL AND KATLE FRAZIER WEEKS POWELL, APPELLEES
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Travelers Indemnity Company appealed a determination that its exclusion clause denying uninsured motorist coverage to insureds occupying a vehicle owned but not insured by the named insured was void under Florida law. The court held that such exclusion clauses violate the public policy underlying Florida's uninsured motorist statute and are therefore unenforceable.
The court held that the exclusion clause is void and unenforceable because it is more restrictive than the statutory requirements of Florida's uninsured motorist law. Such exclusions constitute a denial of statutory coverage without an actual rejection by the insured and therefore violate the public policy established by the legislature.
“The cited statute * * established the public policy of this state to be that every insured, within the definition of that term as defined in the policy, is entitled to recover under the policy for the damages he or she would-have been able to recover against the offending motorist if that motorist had maintained a policy of liability insurance.”
Establishes the fundamental public policy underlying Florida's uninsured motorist statute
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Join FLexlaw to unlock all legal intelligenceMr. and Mrs. Powell owned separate automobiles, each insured by different companies with uninsured motorist coverage. While riding in Mr. Powell's aut…
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By this interlocutory appeal, the defendant insurance company seeks reversal of the Chancellor’s determination of liability by reason of a policy providing uninsured motorist coverage issued to plaintiff, Mrs. Powell.
Appellant states its sole point on appeal as: Is an exclusion in an uninsured motorist policy denying coverage to a person otherwise insured while occupying an automobile owned by the named insured but not insured under the policy void under Florida law? We hold the exclusion clause is void and affirm.
The facts are not controverted. Mrs. Powell owned an automobile insured by Appellant, Travelers, and her husband owned an automobile insured by State Farm Insurance Company. Both insurance policies provided uninsured motorist coverage in the minimum statutory amounts. The Powells, residents of the same household, were injured in a collision with an unin*246sured motorist while riding in Mr. Powell’s automobile. State Farm paid each the limits of its uninsured motorist coverage. The Powells then made claim against Travelers for the amount of their damages that exceeded State Farm’s coverage. Travelers denied coverage upon the following exclusion provision contained in its policy:
“EXCLUSIONS:
“This policy does not apply under Part IV:
“(a) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile.”
The uninsured motorist statute 1 has been the subject matter of prodigious litigation of which there seems to be no foreseeable termination. In Davis v. United States Fidelity & Guaranty Co.,2 this court first expressed the public policy contemplated by the Legislature by the enactment of Section 627.0851, Florida Statutes, F.S. A., when it stated, “The cited statute * * established the public policy of this state to be that every insured, within the definition of that term as defined in the policy, is entitled to recover under the policy for the damages he or she would-have been able to recover against the offending motorist if that motorist had maintained a policy of liability insurance.” Numerous decisions construing various provisions of insurance contracts have held that this public policy is violated by any restrictive language inserted in an insurance policy having the effect of defeating the purpose and intent of the statute, and such provisions must be considered nugatory and void.
The Powells contend, and we agree, that the exclusion clause here is an invalid restriction because it is not the intent of the statute to limit coverage to an insured by specifying his location or the particular vehicle he is occupying at the time of injury. The statute states its purpose thusly:
“ * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * * ”
In United States Fidelity & Guaranty Co. v. Sellers,3 this court adopted the view that the statute did not contemplate pyramiding uninsured motorist coverage and that the public policy of this state is to afford the public generally the same protection that it would have had if the uninsured motorist had carried the minimum limits. Being of that view, we held that when one policy was available to and compensated the injured persons, the statutory requirement was satisfied; therefore, other carriers who had policies covering the same parties, for the same injuries, could deny coverage by virtue of a valid “other insurance” clause in its policy. The Supreme Court in Sellers v. United States Fidelity & Guaranty Co.,4 quashed that decision holding that all clauses in all policies more restrictive than the statute are void, there being no latitude in the statute for limiting liability through “other insurance,” “excess-escape” or “pro rata” clauses. That decision did give the carriers some degree of protection by providing that the statute did not intend that an injured party could collect more than his actual damages even when covered by several policies.
The coupling of uninsured motorist coverage with family protection coverage in an automobile liability policy has made each member of a family an insured under *247each such policy purchased by any family member. Complications arise when there are several members of a family, each owning an automobile, each purchasing a separate policy, and each being an insured under all policies. Since it has been decided in Sellers that an insurance company could not limit its liability under the statute by a “set-off,” an “excess insurance,” or “other insurance” provision, such provisions being void as contrary to public policy, the question now before us is whether an insurance company can accomplish the same result with a nonliability clause although there has been no rejection of coverage by the insured. That is, can the company nullify its statutory liability by an exclusion clause specifying that it will not be liable if the insureds are riding in an automobile owned by one but insured by another company? We conclude that there is no difference in the exclusion clause here under consideration and “set-off” provisions or “other insurance” provisions. Both are more restrictive than the terms of the statute. If one is void, so is the other.
Appellant argues that the controlling decision is our opinion in United States Fidelity & Guaranty Co. v. Webb,5 which involved a similar exclusion but contained an exception not found in Mrs. Powell’s policy. There, Webb owned two cars; one was insured and one was not. Webb was injured by an uninsured motorist while driving his uninsured automobile. The essence of our holding in that case was that Webb was uninsured. By virtue of the exception to the exclusion he could have included his uninsured car in the policy for the purpose of uninsured motorist coverage had he desired to do so. The verbiage used in that case is unfortunate in the light of the facts in the instant case. However, we adhere to the Webb decision, it being our view, at that time and today, that it was not the intent of Section 627.0851, Florida Statutes, F.S.A., to allow a member of a family to purchase one liability policy and claim total coverage thereunder for the entire family while vastly increasing the risk to his insurer by knowingly owning and operating a fleet of uninsured vehicles upon the highways. Therefore, the Webb decision is not controlling under the facts of the case sub judice.
We conclude that under the facts of this case the exclusion clause is invalid since it is more restrictive than the statute and is a denial of statutory coverage without a rejection by the insured.
Affirmed.
CARROLL, DONALD K., Acting Chief Judge, and JOHNSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (29 total)
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Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229 (Fla. 1971)…y Company v. Webb, supra, cited as the basis for its decision in this case, it did hew to its earlier pronouncements in the Davis and Gavin cases in a decision rendered subsequent to the Webb case, i. e., in Travelers Indemnity Co. v. Powell (1968), 206 So. 2d 244. In Powell an exclusionary clause (see text page 246 of Powell) similar to the one in this case was held by the First District Court to be “more restrictive than the statute” and “an invalid restriction” contrary to Section 627.0851. The Court said:…
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Salas v. Liberty Mut. Fire Ins. Co., 272 So. 2d 1 (Fla. 1972)…gainst the negligent motorist if that motorist had maintained a policy of liability insurance. Davis v. United States Fidelity & Guaranty Company of Baltimore, Maryland, 172 So. 2d 485 (Fla.App.1st, 1965); [*4] Travelers Indemnity Company v. Powell, 206 So. 2d 244 (Fla.App.1st, 1968); First National Insurance Co. of America v. Devine, 211 So. 2d 587 (Fla.App.2d, 1968); Hodges v. National Union Indemnity Company, supra. It can also be argued that a second exclusionary clause might be applicable in the present…
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Butts v. State Farm Mut. Auto. Ins. Co. & Reserve Ins. Co., 207 So. 2d 73 (Fla. 3d DCA 1968)…llegations contained therein are sufficient to state a cause of action, and that therefore, the judgment on the pleadings must be reversed. Our decision is based primarily upon the recent case of Travelers Indemnity Company v. Powell, Fla.App.1968, 206 So. 2d 244 (opinion filed January 18, 1968). It should be noted that the above cited opinion was filed subsequent to the lower court’s determination of this case. The Powell case dealt with the Florida Uninsured Motorist Statute, § 627.0851, Fla.Stat., F.S.A.,…
Previewing 3 of 29 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sellers v. United States Fid. & Guar. Co., 185 So. 2d 689 (Fla. 1966)
- Davis v. United States Fid. & Guar. Co. of Baltimore, 172 So. 2d 485 (Fla. 1st DCA 1965)
- Green v. State, 172 So. 2d 485 (Fla. 1st DCA 1965)
- United States Fid. & Guar. Co. v. Sellers, 179 So. 2d 608 (Fla. 1st DCA 1965)
- United States Fid. & Guar. Co. v. Webb, 191 So. 2d 869 (Fla. 1st DCA 1966)