10 Fla. L. Weekly Supp. 793b
Insurance — Uninsured motorist — Where UM policy provides that insurer will pay damages for bodily injury sustained by insured in an accident involving an uninsured vehicle when insured is legally entitled to recover from the owner or operator of uninsured vehicle, insurer is not entitled to raise defense of No Fault threshold, that insured did not sustain permanent injury, which would not have been available to uninsured tortfeasor
ROBERT J. GRIX, individually, and ANNE GRIX, as his wife, Plaintiffs, vs. HARTFORD FIRE INSURANCE COMPANY, Defendant. Circuit Court, 2nd Judicial Circuit in and for Leon County. Case No. 00-2757. February 26, 2003. L. Ralph Smith, Jr., Judge. Counsel: Ted A. Avellone, Butler Pappas Weihmuller Katz Craig LLP, Tallahassee.
ORDER
THIS CAUSE came on to be heard on February 19th, 2003 at the Pretrial Conference, wherein the Plaintiff objected to the Defendant’s Jury Instruction on No-Fault Threshold that the Plaintiff must sustain a permanent injury in order to recover intangible elements of damage and this court after having heard legal argument and being otherwise duly advised of the premises, it is hereby
ORDERED and ADJUDGED that:
1. Based upon the evidence being uncontradicted that the nonresident underinsured motorist, Randy Keith Baker, did not have PIP coverage as required by the Florida No-Fault Law and considering the language of the Defendant, The Hartford’s insurance policy which unequivocally states that the insurer will pay damages for bodily injury sustained by it’s insured in an accident involving an uninsured motor vehicle when the insured is, “legally entitled to recover from the owner or operator of an uninsured motor vehicle,”which is the exact language addressed by Newton v. Auto-Owners Insurance Co., 560 So.2d 1310 (Fla. 1st DCA 1990) and In Dauksis vs. State Farm Mutual Automobile Insurance Company, 623 So.2d 455 (Fla. 1993), the UM carrier, The Hartford, stands in the shoes of the tortfeasor and is not entitled to raise the permanent injury defense because this defense would not have been available to the underinsured tortfeasor, Randy Keith Baker. Therefore, the Defendant’s affirmative defense of No-Fault threshold, particularly that the Plaintiff did not sustain a permanent injury, is hereby stricken and the jury will not be instructed concerning this defense.
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