AMERICAN FIRE AND CASUALTY COMPANY, APPELLANT,
v.
JOYCE ANN DAWSON, A MINOR, BY HER MOTHER AND FATHER AND NEXT FRIENDS, ET AL., APPELLEES
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Uninsured motorist coverage is not excess over a tortfeasor's liability coverage when the tortfeasor's vehicle is insured.
[1] Uninsured motorist coverage is excess over but does not duplicate the injured party's personal injury protection benefits or medical payments coverage.
[2] The "excess over" provision of uninsured motorist coverage only applies when the tortfeasor is driving an uninsured motor vehicle.
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Join FLexlaw to unlock all legal intelligenceThe insured's damages exceeded the tortfeasor's liability coverage. The insured sought to use their own uninsured motorist coverage as excess coverage…
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HOBSON, Judge.
This appeal seeks review of the order of the trial court denying the motion of American Fire and Casualty Company to dismiss the suit for declaratory judgment as to it and determining that the phrase from § 627.727(1), Florida Statutes, as amended by Chapter 71-88, Laws of Florida 1971, which reads, “The coverage provided under this section shall be excess over but shall not duplicate the benefits available to an insured . . . under any . . . automobile liability . coverages . . . ” means that if an insured’s damages exceed the coverage available under another liability insurance policy (tortfeasor’s), then the insured’s own uninsured motorist’s coverage would be available as “excess over” to the extent the insured’s damages are in excess of the tortfeasor’s liability coverage, or in other words, the said phrase made uninsured motorist’s coverage “under-insured motorist’s” coverage.
The same identical question was considered in Summers v. Jackson, Fla.App.4th 1975, 307 So. 2d 235. The Summers case was not published at the time the eminent trial judge in the case sub judice entered his order. It was held in Summers as follows :
“Finally, appellants’ reliance upon § 627.727(1), F.S.1971, to the effect that the coverage provided under that section shall be excess over but shall not duplicate other benefits such as any automobile liability coverage is misplaced. We construe that provision to mean that an injured party’s uninsured motorist coverage is to be excess over but shall not duplicate the injured party’s personal injury protection benefits, medical payments, etc., contained in said party’s policy. But in all events such excess coverage provision only comes into play when the tortfeasor is driving an uninsured motor vehicle. The tortfeasor here was driving a motor vehicle which at the time of the collision was an insured motor vehicle.”
See also Lange v. State Farm Mutual Automobile Insurance Company, Fla.App. 1st 1974, 300 So. 2d 68.
Accordingly, the order appealed is
Reversed.
McNULTY, C. J., and GRIMES, J., concur.
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Williams v. Hartford Accident & Indem. Co., 382 So. 2d 1216 (Fla. 1980)…d prior to the enactment of chapter 73-180, and discusses a number of cases in which courts adopted that position: Castaneda v. State Farm Mutual Automobile Insurance Co., 348 So. 2d 1231 (Fla. 3d DCA 1977); American Fire and Casualty Co. v. Dawson, 320 So. 2d 38 (Fla. 2d DCA 1975); Summers v. Jackson, 307 So. 2d 235 (Fla. 4th DCA 1975). Because the tortfeasor in this case was insured and the petitioner’s accident took place before the 1973 amendment went into effect, the respondent concludes that the petiti…
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Durland v. Allstate Ins. Co., 344 So. 2d 951 (Fla. 1st DCA 1977)…RIAM. AFFIRMED. Ragle v. Firemen’s Fund Ins. Co., 336 So. 2d 1197 (Fla. 1st DCA 1976); Lange v. State Farm Mut. Ins. Co., 300 So. 2d 68 (Fla. 1st DCA 1974); Summers v. Jackson, 307 So. 2d 235 (Fla. 4th DCA 1975); American Fire & Cas. Co. v. Dawson, 320 So. 2d 38 (Fla. 2d DCA 1975). RAWLS, Acting G. J., and McCORD and SMITH, JJ., concur.…
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Am. Fire & Cas. Co. v. Dawson, 400 So. 2d 849 (Fla. 2d DCA 1981)…ons from the district courts of appeal had held that uninsured motorist benefits were available only where the tort-feasor was uninsured and not merely unde-rinsured. We so held in this case several years ago. American Fire & Casualty Co. v. Dawson, 320 So. 2d 38 (Fla.2d DCA 1975). Accordingly, we ordered the trial court to dismiss appellant from this action, which it did in 1975. Williams “disapproved” the earlier cases, including our opinion in this case. Appellee promptly moved the trial court, under Flo…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Azalene Summers and D. S. Summers v. Jackson, 307 So. 2d 235 (Fla. 4th DCA 1975)
- Lange v. State Farm Mut. Auto. Ins. Co., 300 So. 2d 68 (Fla. 1st DCA 1974)