10 Fla. L. Weekly Supp. 1000a

Insurance — Uninsured motorist — Coverage — Declaratory judgments — Motions to dismiss complaint, strike claims, and for summary judgment and judgment on pleadings in declaratory judgment action brought by passenger injured in rental vehicle seeking to determine whether insurer of rental vehicle or passenger’s own PIP carrier should provide primary UM coverage — Action to determine priority of claims is ripe despite fact that plaintiff has not been awarded UM benefits — Where, although both insurers acknowledge that their policies provide UM coverage, neither insurer has extended UM benefits to plaintiff, and insurers have not yet determined which of them provides primary coverage, insurers’ actions have essentially resulted in denial of coverage — Motions denied

YOLINE VICTOR, Plaintiff, v. NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY, and DIAMOND STATE INSURANCE COMPANY, Defendants. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 48-2003-CA-002050-O. October 7, 2003. A. Thomas Mihok, Judge. Counsel: Peter A. Shapiro, The Law Offices of Peter A. Shapiro, Orlando. E. Peyton Hodges, Orlando. Elizabeth M. Folgeman, Law Offices Gonzalez & Capito, Longwood.

[Related Order at 11 Fla. L. Weekly Supp. 109a.]

ORDER

THIS MATTER comes before the Court on Defendant Nationwide Property and Casualty Insurance Company’s motions: (1) to strike Plaintiff’s claim for declaratory relief and attorney’s fees, (2) for summary judgment, (3) for judgment on the pleadings, and (4) to dismiss; and on Defendant Diamond State Insurance Company’s motions: (1) to dismiss Plaintiff’s amended complaint, and (2) for summary judgment, heard on August 21, 2003. The Court finds as follows:

On May 5, 2002, Yoline Victor (“Plaintiff’) sustained personal injuries as a result of a motor vehicle accident. Plaintiff was a passenger in a vehicle rented by Rene Smith from Dollar Rent-A-Car Systems, Inc., and insured by Defendant Diamond State Insurance Company (“Diamond”). Plaintiff submitted proof of claims for injuries to Diamond and to her personal automobile insurance carrier, Nationwide Property and Casualty Insurance Company (“Nationwide”), in order to receive uninsured motorist benefits.

Plaintiff alleges that Diamond and Nationwide have wrongfully refused to extend uninsured motorist coverage to Plaintiff. Plaintiff states that the Defendants have each contended that the other should provide primary uninsured motorist coverage and, as a result, Defendants have denied Plaintiff such coverage. Plaintiff filed this action for declaratory judgment seeking a determination as to whether Diamond or Nationwide should provide Plaintiff primary uninsured motorist coverage, and seeking attorney’s fees pursuant to section 627.428, Florida Statutes.

Defendants argue that Plaintiff’s action is premature because the issue of coverage priority is “irrelevant and immaterial unless and until” uninsured motorist benefits are awarded to Plaintiff (Nationwide’s Mot. Summ. J. ¶ 5, Diamond’s Mot. Summ. J. ¶ 5.) Defendants claim “[t]here is no need to determine the priority of coverage under the two insurance policies in question before the Plaintiff has obtained any verdict for damages.” (Diamond’s Mot. Dismiss ¶ 3, Nationwide’s Mot. Dismiss ¶ 3.)

Plaintiff, on the other hand, argues her claim “could not be more ripe for declaratory relief” (Pl.’s Resp. Nationwide’s Mot. J. Pleadings ¶ 5.) Plaintiff states that she has made “numerous good faith attempts” to receive uninsured motorist benefits, (Id. ¶ 7), and that Defendants’ failure to provide such benefits is equivalent to a denial of coverage. This Court agrees with Plaintiff.

“If the insurer is precluded from having a good faith issue of coverage expeditiously determined, this interferes with early settlement of claims.” Legion Ins. Co. v. Moore, 846 So.2d 1183, 1186 (Fla. 4th DCA 2003) (quoting Britamco Underwriters Inc. v. Cent. Jersey Inv. Inc., 632 So.2d 138, 141 (Fla. 4th DCA 1994)). Thus, if the priority of coverage is not determined, Plaintiff will be forced to go to trial on her underlying personal injury claim without an opportunity to negotiate a pretrial settlement. See Moore, 846 So.2d at 1186 (“If coverage is promptly determined, an insurance carrier is able to make an intelligent judgment on whether to settle the claim”). The Court therefore finds that Plaintiff’s claim for declaratory relief is ripe.

Defendants also argue that they have not denied Plaintiff uninsured motorist coverage in this case. Nationwide contends that “[a]n action for declaratory relief in this case would be proper only if the Defendants had denied coverage to the Plaintiff.” (Mot. J. Pleadings ¶ 5.) Although Defendants acknowledge that the policies they issued to Plaintiff provide uninsured motorist coverage, neither Diamond or Nationwide has extended Plaintiff any uninsured motorist benefits. The Defendants admit that they have not yet determined which insurer provides primary coverage to Plaintiff. Thus, the Court finds that Defendants’ actions have essentially resulted in the denial of coverage to which Plaintiff is entitled.

Defendants further argue that Plaintiff is not entitled to recover attorney’s fees under section 627.428, Florida Statutes, because they have not denied Plaintiff uninsured motorist coverage. However, this Court has already determined that Defendants have denied Plaintiff uninsured motorist coverage. Thus, Plaintiff is not precluded from recovering attorney’s fees. Under section 627.428, an insured is entitled to reasonable attorney’s fees “[u]pon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any . . . insured . . . under a policy or contract executed by the insurer.” § 627.428, Fla. Stat. (2003).

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that:

(1) Defendant Nationwide Property and Casualty Insurance Company’s Motion to Strike Plaintiff’s Claim for Declaratory Relief and Attorney’s Fees is DENIED;

(2) Defendant Nationwide Property and Casualty Insurance Company’s Motion for Summary Judgment is DENIED;

(3) Defendant Nationwide Property and Casualty Insurance Company’s Motion for Judgment on the Pleadings is DENIED;

(4) Defendant Nationwide Property and Casualty Insurance Company’s Motion to Dismiss is DENIED;

(5) Defendant Diamond State Insurance Company’s Motion to Dismiss Plaintiff’s Amended Complaint is DENIED; and

(6) Defendant Diamond State Insurance Company’s Motion for Summary Judgment is DENIED.

Furthermore, the parties are hereby ORDERED to re-set the following motions for further hearing:

(1) Plaintiff’s Second Amended Motion for Summary Judgment/Motion to Amend Complaint;

(2) Plaintiff’s Motion for Protective Order;

(3) Defendant Nationwide Property and Casualty Insurance Company’s Motion for Protective Order; and

(4) Defendant Nationwide Property and Casualty Insurance Company’s Amended Motion for Extension of Time to Respond to Discovery.

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