THE AETNA CASUALTY & SURETY COMPANY, APPELLANT,
v.
KENNETH ERWIN FULTON, APPELLEE

Fla. 4th DCA | 1978-08-16
No. 77-923
CROSS and BERANEK, JJ., concur.
362 So. 2d 364 Florida District Court of Appeal, Fourth District (1978) Positive Treatment
Cited by 15 cases

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Synopsis

Aetna appeals a declaratory judgment holding that its umbrella policy provided uninsured motorist coverage equal to the policy's liability limits ($5,000,000) under Florida law. The court affirmed, holding that umbrella policies providing automobile liability coverage must comply with statutory uninsured motorist coverage requirements, and that an insured cannot be deemed to have 'selected' lower limits in a take-it-or-leave-it contract.


Holding

The umbrella policy constituted automobile liability insurance triggering statutory requirements under Section 627.727, Florida Statutes. Fulton is entitled to $5,000,000 in uninsured motorist coverage matching his liability limits because he did not truly 'select' the $25,000 limit—no higher amount was offered and the contract was non-negotiable.


Headnotes

[1] An excess indemnity policy that provides coverage for liability arising out of the ownership, maintenance, operation, use, loading, or unloading of any automobile is cons…

[2] An insured is statutorily entitled to uninsured motorist coverage in an amount not less than the limits of the liability insurance purchased, unless lower limits are affi…

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Key Quotes

“By the terms of the umbrella policy, appellee was covered up to $5,000,000 for liability arising out of the ownership, maintenance, operation, use, loading or unloading of any automobile or recreational vehicle when his liability exceeded that covered by his "family automobile policy."”

Establishes that the umbrella policy provides automobile liability insurance despite being an excess policy

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Facts & Procedural History

Fulton, a doctor, maintained a family automobile policy with $300,000 in uninsured motorist coverage. His clinical laboratory employer required member…

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Opinion of the Court
MOORE, Judge.

MOORE, Judge.

This is an appeal from a final declaratory judgment in which the trial court held that the plaintiff-appellee’s “personal and professional excess indemnity policy” (commonly referred to as an umbrella policy) provided appellee with $5,000,000 of uninsured motorist coverage.

Appellee, a doctor, has a “family automobile policy” which covered three family automobiles and provided $300,000 in unin sured motorist benefits. The clinical laboratory of which appellee was a member carried professional liability insurance with the appellant, Aetna Casualty and Surety Co. As a condition to writing the professional liability insurance, Aetna required each of the members of the clinical laboratory to carry a $5,000,000 umbrella policy to insure against personal liability. This policy was obtained for the appellee by the administrator of the clinical laboratory and provided appellee with $5,000,000 of excess personal liability insurance and $25,000 excess uninsured motorist insurance.

Under Section 627.727, Florida Statutes (1975), an automobile liability insurance policy must have provided uninsured motorist insurance in an amount not less than the limits of the liability insurance purchased by the insured for bodily injury, unless the insured selected lower limits. Appellee successfully contended at the trial level that because he had not selected a lower limit he was statutorily entitled to uninsured motorist coverage in the amount identical to the liability coverage, to wit: $5,000,000. We agree with the trial court’s decision.

Appellant presents two distinct arguments. First, it contends that Section 627.727 applies only to automobile liability insurance policies and the “personal and professional excess indemnity policy” is not an automobile liability insurance policy. This contention has no merit.

By the terms of the umbrella policy, appellee was covered up to $5,000,000 for liability arising out of the ownership, maintenance, operation, use, loading or unloading of any automobile or recreational vehicle when his liability exceeded that covered by his “family automobile policy.” Although the umbrella policy provided personal injury liability coverage for liability incurred in other ways1, it nevertheless provided automobile liability insurance. The definitional section of the umbrella policy makes it apparent that the policy was concerned largely with liability arising out of the use of automobiles. The policy itself provided uninsured motorists coverage in the amount of $25,000 for each accident and required underlying, minimum primary limits of automobile liability coverage. We, therefore, hold that this was a policy providing automobile liability insurance activating the requirements of Section 627.727, Florida Statutes (1975). See, Aetna Casualty and Surety Co. v. Green, 327 So. 2d 65 (Fla.1st DCA 1976).

Appellant next contends that appel-lee “selected” the lower limit of $25,000 uninsured motorist coverage because appel-lee specifically contracted for this amount. It is undisputed that appellee was never offered a higher amount and that appellant would not have written the policy for a higher amount even if it had been requested. How can it be said that an insured “selected” a lower limit when the transaction was a “take it or leave it” proposition? As Judge Smith stated in American Motorists Ins. Co. v. Weingarten, 355 So. 2d 821 (Fla.lst DCA 1978):

“. . .an informed rejection of additional uninsured motorist coverage could not, without extrinsic evidence, be implied from the insured’s signature on an application for uninsured motorist coverage to lower limits.”

We find sound reasoning in the opinion of our sister court. See also Lumbermen’s Mutual Cas. Co. v. Beaver, 355 So. 2d 441 (Fla.4th DCA 1978).

The trial court was eminently correct in entering a final declaratory judgment in favor of appellee and is AFFIRMED.

CROSS and BERANEK, JJ., concur. . It is interesting to note the policy did not provide professional liability coverage.


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Citator

Cited By

  • Nationwide Prop. & Cas. Ins. Co. v. Marchesano, 482 So. 2d 422 (Fla. 2d DCA 1985)
    …), said, “An informed rejection of uninsured motor vehicle coverage cannot, without extrinsic evidence, be implied from the insured’s signature on the application for uninsured motor vehicle coverage.” See also Aetna Casualty & Surety Co. v. Fulton, 362 So. 2d 364 (Fla. 4th DCA 1978). We do not conclude that the prima facie evidence of a knowing rejection provided by the written rejection could not be rebutted, as the jury found it was here, by the type of testimony of the insured described above. We recogni…
  • Chicago Ins. Co. v. Jose C. Dominguez, M.D., 420 So. 2d 882 (Fla. 2d DCA 1982)
    …nsurer must afford uninsured motorist coverage equivalent to the liability limits in the absence of an informed rejection by the insured. Cohen v. American Home Assurance Co., 367 So. 2d 677 (Fla. 3d DCA 1979); Aetna Casualty & Surety Co. v. Fulton, 362 So. 2d 364 (Fla. 4th DCA 1978); Aetna Casualty & Surety Co. v. Green, 327 So. 2d 65 (Fla. 1st DCA 1976). The more difficult question concerns the relationship between Chicago’s policy and the policies of Penn and Travelers. The pertinent provisions of the Chi…
  • Sapienza v. Sec. Ins. Co. of Hartford, 543 So. 2d 845 (Fla. 4th DCA 1989)
    …the substance of the policy and not the title which controls whether or not section 627.-727, Florida Statutes (1987), applies. See Chicago Insurance Company v. Dominguez, 420 So. 2d 882 (Fla. 2d DCA 1982); Aetna Casualty & Surety Company v. Fulton, 362 So. 2d 364 (Fla. 4th DCA 1978). The garage keepers policy covers liability for motor vehicle accidents. Therefore, compliance with section 627.727, Florida Statutes (1987), was required. Chicago Insurance Company. Reversed and remanded to reinstate plaint…

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