JERROLD B. WILSON, INDIVIDUALLY, AND AS FATHER OF JOHN B. WILSON, DECEASED, AND JERROLD B. WILSON, AS ADMINISTRATOR OF THE ESTATE OF JOHN B. WILSON, DECEASED, APPELLANTS,
v.
NATIONAL INDEMNITY COMPANY, AN INSURANCE CORPORATION, APPELLEE
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The court held that a genuine issue of material fact existed regarding whether the insured knowingly waived uninsured motorist coverage, precluding summary judgment.
[1] A genuine issue of material fact precludes summary judgment.
[2] A waiver of uninsured motorist coverage must be knowingly made.
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Join FLexlaw to unlock all legal intelligenceMrs. Wilson purchased motorcycle insurance and signed a waiver of uninsured motorist coverage, believing it was unnecessary due to military medical be…
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SPECTOR, Acting Chief Judge.
Appellant seeks reversal of a summary final judgment entered in favor of defendant-appellee.
The Wilson family was stationed with the United States Navy in Jacksonville when Mrs. Wilson bought a motorcycle to be used by appellant and her two sons. She also purchased insurance with Mr. Wilson as the named insured and her two sons as authorized drivers. At the time she purchased the insurance, Mrs. Wilson signed a waiver of uninsured motorist coverage. According to Mrs. Wilson’s testimony, she rejected the uninsured motorist coverage upon the advice of the agent who sold her the insurance policy, because military families are entitled to free medical care.
On October 1, 1971, one of appellant’s sons was killed as a result of a collision between the motorcycle and an automobile which was not covered by insurance. The driver of the uninsured automobile was subsequently charged with manslaughter. Appellant contends, inter alia, that Mrs. Wilson did not knowingly waive uninsured motorist coverage and that the lower court therefore erred in granting summary judgment.
It appears from the record before us that a genuine issue of fact arose as to whether Mrs. Wilson understood the nature of the waiver she executed. It is fundamental that where a material issue of fact exists, the case should be decided by the trier of fact and not disposed of by summary proceedings.
The deposition of Mrs. Wilson indicates that she in fact thought she was waiving hospital and medical payments, because military personnel were entitled to free medical care.
Uninsured motorist coverage is required by law and must be affirmatively rejected, Section 627.727, Florida Statutes. It is only logical then that such waiver knowingly be made.
For the foregoing reasons, the case is reversed and remanded for further proceedings not inconsistent herewith. In the event appellant ultimately prevails in the trial court, he will be entitled to attorney’s fees, including appropriate fees for this appellate proceeding.
JOHNSON and BOYER, JJ., concur.
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Cited By (13 total)
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Dorman K. Kimbrell v. Great Am. Ins. Co., 420 So. 2d 1086 (Fla. 1982)…over v. Aetna Insurance Co., 363 So. 2d 12, 13 (Fla. 1st DCA 1978). What the statute does require is that a rejection of uninsured motorist coverage or a selection of lower limits of coverage must be knowingly made. Wilson v. National Indemnity Co., 302 So. 2d 141 (Fla. 1st DCA 1974). The question of whether an insured has knowingly rejected uninsured motorist coverage or knowingly selected coverage in a lesser amount than that which the insurer is required to make available is an issue to be decided by the…
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The Travelers Ins. Co. v. Spencer, 397 So. 2d 358 (Fla. 1st DCA 1981)…as unifor-mally been interpreted as requiring nothing less than an affirmative, informed rejection by an insured of his right to UM protection. Bernstein v. Liberty Mutual Ins. Co., 294 So. 2d 63 (Fla. 3d DCA 1974); Wilson v. National Indemnity Co., 302 So. 2d 141 (Fla. 1st DCA 1974); Lumbermen’s Mut. Cas. Co. v. Beaver, 355 So. 2d 441 (Fla. 4th DCA 1978); American Motorist’s Ins. Co. v. Weingarten, 355 So. 2d 821 (Fla. 1st DCA 1978). The statute’s requirements are not met if the agent’s knowledge of rejectio…
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Hartford Accident & Indem. Co. v. Inez Sheffield, 375 So. 2d 598 (Fla. 3d DCA 1979)…Fla.Jur. Statutes § 105 (1974). . It should be emphasized that our holding does no more than require insurance companies to secure a separate rejection of UM coverage — if that is the insured’s “knowing” decision, Wilson v. National Indemnity Co., 302 So. 2d 141 (Fla. 1st DCA 1974) — whenever it changes an existing policy in any material respect.…
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