11 Fla. L. Weekly Supp. 109a
Insurance — Uninsured motorist — Action for declaratory relief brought by passenger injured when uninsured motorist collided with rental car in which passenger rode to determine whether carrier of passenger’s automobile policy or carrier of supplemental liability insurance and UM coverage purchased under rental agreement, or both pro rata, had primary UM coverage on passenger’s claim — Issue of primary coverage is not premature despite fact that passenger has not been awarded UM benefits where both insurers have denied coverage, thereby preventing passenger from proceeding with claim and leaving passenger no alternative but to bring declaratory judgment action — UM coverage of passenger’s automobile insurance policy is primary where passenger has right to expect insurer to respond with primary coverage of any UM claims in return for payment of premiums for coverage — Moreover, where passenger’s insurance policy agrees to pay any UM loss sustained which is not covered by other UM coverage, and supplemental liability insurance policy is excess policy which looks first to underlying insurance and other collectible insurance available before its coverage is activated, passenger’s loss is not covered by supplemental policy until passenger’s own policy has been exhausted
YOLINE VICTOR, Plaintiffs, v. NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY AND DIAMOND STATE NATIONAL INSURANCE COMPANY, Defendants. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 48-2003-CA-2050. November 8, 2003. A. Thomas Mihok, Judge. Counsel: Elizabeth M. Folgeman. Peter A. Shapiro, Law Offices of Peter A. Shapiro, Orlando. G. Yates Rumbley.
[Related order at 10 Fla. L. Weekly Supp. 1000a.]ORDER
This case is before the Court on various motions for summary judgment. Specifically, Defendant Nationwide Property and Casualty Insurance Company (“Nationwide”) has an Amended Motion for Summary Judgment filed October 22, 2003. Defendant Diamond State Insurance Company (“Diamond State”) has an Amended Motion for Summary Judgment filed October 1, 2003. The Plaintiff Yoline Victor (“Victor”) also has a Second Amended Motion for Summary Judgment filed August 28, 2003.
Victor was injured in a motor vehicle accident which occurred on May 5, 2002. At the time of the accident, Victor was a passenger in a rental car driven by Rene Smith. Smith had rented the vehicle from Dollar Rent a Car and had purchased supplemental liability insurance and uninsured motorist (“UM”) coverage through Diamond State under the rental agreement. Victor had an individual automobile policy with Nationwide which also provided UM coverage. Victor was injured when an uninsured motorist — hit and run driver — was involved in a collision with the vehicle driven by Smith and in which Victor was a passenger.
Subsequent to the accident, Victor filed UM claims with both Nationwide and Diamond State. Both insurers admitted UM coverage, but each took the position that the other had primary coverage. Victor then brought the instant action for declaratory relief to determine whether Nationwide or Diamond, or both, pro rata, had primary UM coverage on Victor’s claim.
In her Second Amended Motion for Summary Judgment, Victor is seeking summary judgment on the issue of coverage and is asking this Court to decide whether Nationwide or Diamond State holds primary coverage, or whether the two insurance carriers should provide coverage on a pro-rata basis. Victor is also seeking attorneys’ fees.
In its amended motion for summary judgment, Nationwide argues that neither Victor nor Diamond State is entitled to summary judgment. Nationwide claims that the issue of coverage priority is premature because UM benefits have not been awarded to Victor. Further, if the issue of priority is to be decided, Nationwide takes the position that Diamond State is primary on Victor’s UM claim because Diamond State issued a policy on the rental vehicle which provided UM coverage to all occupants of the vehicle. Nationwide points out the Diamond State adjuster, Youck STB Inc., advised Victor that they were adjusting the claim on a “primary basis”. Nationwide also argues that although Diamond State’s policy claims to be an “excess policy”, it would be excess over the renter’s UM insurance, not Victor’s insurance, since Victor was only a passenger in the rental vehicle. In support of the latter argument, Nationwide points to a provision in its policy which states that “[F]or any uninsured motorists coverage loss while you or a relative are occupying a motor vehicle other than your auto, we will pay the loss not covered by other uninsured motorists coverage.” Nationwide says that the “other coverage” is Diamond State’s policy covering the vehicle in which Victor was a passenger. Finally, in support of its argument that Diamond State is primary to Victor, Nationwide points to the language of § 627.727(9)(c) which provides that if the injured person is occupying a motor vehicle which is not owned by them, then the injured party is entitled to the highest limits of UM coverage on any of their vehicles, but such coverage shall be excess over the coverage on the vehicle the injured party is occupying.
Diamond State argues that its policy is clearly “excess” over that of Nationwide and that the Nationwide policy is primary to Victor. Diamond State points out that its policy is labeled an “automobile excess rental liability policy” and that its coverage limit is “the difference between $1,000,000” and the “limit of liability or limit of insurance of “ ‘underlying insurance’ ”. Diamond State also points to its “other insurance” clause which states that its insurance “is excess over any other collectible insurance. . . available to the insured.”
The Court finds that under the circumstances presented here that Victor is entitled to a determination of coverage and is entitled to an award of attorneys’ fees pursuant to § 627.428, F.S. Both Nationwide and Diamond State have essentially denied coverage to Victor as they argue between themselves as to which holds primary coverage. Victor has been unable to present her claim for settlement because neither Nationwide nor Diamond State accept the responsibility of primary coverage. Each insurer points to the other and Victor is unable to proceed with her claim. Therefore, Victor had no alternative but to bring the instant declaratory judgment action.
As to the issue of primary coverage, the Court finds that the Nationwide coverage is primary to Victor. First, on the basis of a strictly commercial analysis, Victor paid her insurer, Nationwide, premiums for coverage which included UM coverage. In return for her premium payments, she has every right to expect her insurer to respond with primary coverage on any UM claim made by her. Second, the language of the Nationwide policy and the Diamond State policy can be reconciled so as to require Nationwide to respond as the primary carrier. The Diamond State policy, by its terms, is clearly an excess policy. The “other insurance” clause in the Diamond State policy clearly states that the insurance provided by Diamond State is “excess over any other collectible insurance. . .available to the insured.” The UM endorsement in the Diamond State policy states that as to UM claims Diamond State will pay “all sums excess of applicable ‘underlying insurance’. . .”. These provisions make it very clear that the Diamond State policy is excess to the Nationwide policy. The Nationwide policy agrees to pay any UM loss sustained by Victor which is “not covered by other Uninsured Motorists coverage.” Since the Diamond State policy, by its terms, looks first to “underlying insurance” and “other collectible insurance. . . available to the insured” before its coverage is activated, Victor’s loss is not covered by the Diamond State policy until after the Nationwide policy has been exhausted.
Based upon the foregoing, it is hereby ORDERED AND ADJUDGED
1) Victor’s Second Amended Motion for Summary Judgment is GRANTED to the extent that the Court finds Nationwide to hold primary coverage and that Victor is entitled to attorney’s fees and costs from Nationwide pursuant to § 627.428.
2) Nationwide’s Amended Motion for Summary Judgment is DENIED.
3) Diamond States’ Amended Motion for Summary Judgment is GRANTED to the extent that the Court finds Nationwide holds primary coverage and that Diamond State is not obligated to Victor for any attorney’s fees or costs.
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