WILLIAM E. MCINNIS AND JOANN B. MCINNIS, APPELLANTS,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, AN ILLINOIS CORPORATION, APPELLEE
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The McInnises appealed a judgment on the pleadings in favor of State Farm regarding coverage denial under an uninsured motorist endorsement. The court held that the defendants breached the exclusion clause by settling with the tortfeasor's insurer without State Farm's written consent, precluding recovery under the policy.
The court affirmed the judgment, holding that the defendants breached the exclusion clause by settling with Shelby Mutual without State Farm's written consent. This breach precluded coverage under the uninsured motorist endorsement, and the breach is presumed to have prejudiced the insurer absent evidence to the contrary.
“This endorsement does not apply: (a) to bodily injury to an insured, or care or loss of services recoverable by an insured, with respect to which such insured, his legal representative or any person entitled to payment under this endorsement shall, without written consent of the company, make any settlement with or prosecute to judgment any action against any person or organization who may be legally liable therefor”
The exclusion clause that defendants violated by settling without State Farm's written consent
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Join FLexlaw to unlock all legal intelligenceThe McInnises were injured in a collision with a truck owned by American Steel Fence Company and driven by Eddie James Pooler, who was uninsured. Amer…
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William and Joann Mclnnis, defendants, appeal from a final judgment on the pleadings which held for plaintiff State Farm Mutual Automobile Insurance Company and dismissed defendants’ counterclaim.
Defendants were involved in a vehicular collision with a truck owned by American Steel Fence Company and driven by Eddie James Pooler. They filed suit against both.
Pooler was not insured. American Steel Fence Company’s insurer, Shelby Mutual Insurance Company, asserted no coverage because of non-consented-to use of the vehicle by Pooler. Nevertheless, Shelby Mutual, though still denying coverage, settled with defendants for $5,750.00. The suit was dismissed as to American Steel Fence Company on February 4, 1964.
The action remained against Pooler. On December 17, 1965, after the settlement had been reached with, Shelby Mutual, defendants docketed their cause against Pooler and, on the same day, demanded consent from plaintiff to sue Pooler.
Plaintiff filed a complaint for a declaratory judgment contending that settlement with Shelby Mutual without plaintiff’s con*482sent violated an exclusion clause in the uninsured motorist coverage. This clause provided:
“This endorsement does not apply:
(a) to bodily injury to an insured, or care or loss of services recoverable by an insured, with respect to which such insured, his legal representative or any person entitled to payment under this endorsement shall, without written consent of the company, make any settlement with or prosecute to judgment any action against any person or organization who may be legally liable therefor;” (Emphasis added.)
Defendants counterclaimed seeking damages under the uninsured motorist provision of their policy.
The trial judge granted plaintiff a judgment on the pleadings based on his finding that “the accident described in said pleadings did not involve an uninsured motor vehicle or uninsured motorist * *
We affirm. There are two possibilities presented. If the release, settlement and dismissal by defendants with Shelby Mutual settled as a matter of law that this was not an uninsured motor vehicle case, then the trial court was correct in its assessment and correct in granting plaintiff a judgment on the pleadings.
However, even if the settlement did not establish coverage, and we tend to feel it alone could not as a matter of law do so, the judgment on the pleadings was nonetheless correct. Assuming that an uninsured motor vehicle or uninsured driver were involved, under the terms of the exclusion clause defendants are precluded by their non-consented-to settlement with Shelby Mutual from asserting coverage under plaintiff’s policy.
In its complaint, State Farm alleged that defendants had settled with Shelby Mutual and then, after settlement, demanded consent to sue Pooler.
Defendants’ answer and counterclaim acknowledged receipt of $5,750.00 from Shelby Mutual. It further admitted that consent to sue Pooler had been sought on December 17, 1965 — nearly two years later.
Under this state of the pleadings, it is clear that defendants breached the exclusion clause of their uninsured motorist coverage.1 Such a breach will be presumed to have prejudiced the insurer, and in the absence of an allegation by defendants that no prejudice has in fact resulted,2 defendants may not recover.
Affirmed.
CROSS and McCAIN, JJ., concur.
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Gen. Accident Ins. Co. of Am. v. Taplis, 493 So. 2d 32 (Fla. 5th DCA 1986)…981); Southeastern Fidelity Ins. Co. v. Earnest, 395 So. 2d 230 (Fla. 3d DCA 1981); Kaplan v. Phoenix of Hartford Ins. Co., 215 So. 2d 893 (Fla. 3d DCA 1968), cert. denied, 220 So. 2d 365 (Fla.1969); McInnis v. State Farm Mutual Automobile Ins. Co., 208 So. 2d 481 (Fla. 4th DCA 1968); Bass v. Aetna Casualty & Surety Co., 199 So. 2d 790 (Fla. 4th DCA 1967) cert. dismissed 206 So. 2d 211, 212 (Fla.1968). A mere denial of prejudice is insufficient. See Gould, supra. In Tucker, supra, we reversed a summary judgm…
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The Travelers Ins. Co. v. Marti B. Gray, 360 So. 2d 16 (Fla. 3d DCA 1978)…el one. See, e. g., Arrieta v. Volkswagen Insurance Company, 343 So. 2d 918 (Fla. 3d DCA 1977); Sena v. State Farm Mutual Automobile Insurance Company, 305 So. 2d 243 (Fla. 3d DCA 1974); and McInnis v. State Farm Mutual Automobile Insurance Company, 208 So. 2d 481 (Fla. 4th DCA 1968). Because of this determination, it follows that the trial court erred in entering the order and final judgment appealed granting summary judgment in favor of appellees. Therefore, the order and final judgment are reversed and th…
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Am. Fire & Cas. Co. & W. Am. Ins. Co. v. Bradford Sinz, 487 So. 2d 340 (Fla. 4th DCA 1986)…of that argument Lopez v. Fidelity & Casualty Co., 412 So. 2d 394 (Fla. 3d DCA 1982); Travelers Insurance Co. v. Gray, 360 So. 2d 16 (Fla. 3d DCA 1978); Sena v. State Farm Mutual, 305 So. 2d 243 (Fla. 3d DCA 1974); and McInnis v. State Farm Mutual, 208 So. 2d 481 (Fla. 4th DCA 1968). Of the cited cases, only the Lopez case1 holds that prejudice is established as a matter of law. In the other cited cases, the issue of prejudice was not presented to the trial court, a matter expressly noted in the Sena and Mcl…
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- Oren v. Gen. Accident Fire & Life Assurance Corp., Ltd., 175 So. 2d 581 (Fla. 3d DCA 1965)
- Bass v. AETNA Cas. & Sur. Co. OF Hartford, 199 So. 2d 790 (Fla. 4th DCA 1967)
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