STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLANT,
v.
HENRY P. FASS, APPELLEE
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State Farm challenges a judgment in favor of Fass on his uninsured motorist insurance claim, arguing that the one-year limitations period for claiming coverage when an insurer becomes insolvent should be measured from the formal adjudication date rather than the actual insolvency date, and that Fass must prove freedom from contributory negligence. The court affirmed, holding that actual insolvency within one year of the accident satisfies the statute, and that tort principles, not contract defenses, govern the burden of proof in such claims.
First, actual insolvency occurring within one year of the accident satisfies the statutory requirement, even though formal adjudication of insolvency occurred more than one year later. Second, an action on uninsured motorist coverage is treated as a tort claim for purposes of burden of proof regarding affirmative defenses such as contributory negligence, not as a purely contractual action.
[1] The one-year limitation period for uninsured motorist coverage, triggered by the tort-feasor's insurer's insolvency, is satisfied if the insurer is proven to be factually…
[2] The factual insolvency of a tort-feasor's insurer, for purposes of uninsured motorist coverage, can be established by competent substantial evidence, including testimony…
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“Obviously becoming insolvent precedes adjudication of insolvency.”
Supports the holding that actual insolvency within one year satisfies the statutory requirement, not formal adjudication
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Join FLexlaw to unlock all legal intelligenceAn accident occurred, and the tortfeasor's insurer became insolvent. The formal adjudication of insolvency occurred more than a year after the acciden…
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In Insurance Company of North America, Inc. v. Strauss, Fla.App.1970, 231 So.2d 548, we reversed a summary judgment predicated on the finding that the limitation of one year in the statute regulating uninsured motorist coverage was inoperative. Here the adjudication of insolvency occurred more than a year after the accident, but the plaintiff alleged and proved by competent substantial evidence that the tort-feasor’s insurer was insolvent as a matter of fact less than a year after the accident. We hold, as dicta in Fredel v. Southern General Insurance Co., Fla.App.1970, 233 So.2d 451, suggest, that this question is open to proof. This is the reasonable interpretation of the language of the statute which provides that coverage is applicable “where the liability insurer of the tort-feasor becomes insolvent within one year after such an accident.” Fla.Stat. § 627.0851 (1969), F.S.A. Obviously becoming insolvent precedes adjudication of insolvency. See Fla.Stat. c. 631 (1969), F.S.A. The tort-feasor’s insurer was found to be insolvent on testimony of the State’s examiner, and this evidence is sufficient to warrant a finding of insolvency as of the anniversary of the accident although an adjuster testified that the company paid several small claims and his fees for several months thereafter.
Appellant next claims that the plaintiff, in an action against his own carrier predicated on uninsured motorist coverage, must prove that he was not guilty of contributory negligence. Its theory is that the action is contractual and the rule governing tort actions does not apply. We disagree. The action differs from that which he would normally prosecute against the tort-feasor in that he must first prove the contract and then his tort claim, which becomes an element of his contractual right. The proof of that tort claim against the uninsured motorist proceeds with the same burdens of proof as if it were filed as an action in tort. If appellant’s point were well taken the plaintiff would have to negate all potential affirmative defenses, which would make a cumbersome proceeding out of a simple one. See Fla.R.C.P. 1.-110(d), 30 F.S.A.
Affirmed.
PIERCE, C. J., and HOBSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Robert v. Johnson and Viola Johnson, 333 So. 2d 542 (Fla. 3d DCA 1976)…es which defines the word ‘insolvency’ as being in substance— ‘When the assets of the insurer are not sufficient to discharge all of its liabilities, etc.’ “They further rely upon the case of: State Farm Mutual Automobile Insurance Company v. Fass, 243 So. 2d 223 (Fla.[App.], 1971); Bartholomew v. Glenns Falls Insurance Group, 241 So. 2d 698 (Fla.[App.], 1970). “It should be noted that the definition of ‘insolvency’ as contained in Section 631.011 of the Florida Statutes was not incorporated in the 1971 uni…
Authorities Cited
- Ins. Co. OF N. Am. v. Strauss, 231 So. 2d 548 (Fla. 2d DCA 1970)
- Adele Fredel v. S. Gen. Ins. Co., 233 So. 2d 451 (Fla. 3d DCA 1970)