14 Fla. L. Weekly Supp. 862a
Insurance — Uninsured motorist — Joinder of uninsured at-fault driver as co-defendant in insured’s breach of contract action against UM insurer is not required despite contract provision requiring insured to sue both insurer and at-fault driver — If insurer desires to join at-fault driver, it may file third-party action for subrogation
OSCAR LITTLE and INEZ LITTLE, husband and wife, Plaintiffs, vs. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a foreign corporation authorized to do business in the State of Florida, Defendant. Circuit Court, 7th Judicial Circuit in and for St. Johns County. Case No. CA07-0305, Division 55. June 22, 2007. J. Michael Traynor, Judge. Counsel: Robert L. McLeod, II, The McLeod Firm, St. Augustine. Julia G. Miller, Law Office of Michelline Haynes Ruth, Jacksonville.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE came on to be considered upon the Defendant’s Motion to Dismiss, and the Court having reviewed the court file, having heard argument of counsel, and being otherwise advised in the premises, hereby finds, as follows:
In this action, the Plaintiffs have sued GEICO to enforce their rights under an uninsured/underinsured policy. The Plaintiffs allege they were injured in a collision caused by an uninsured driver. GEICO seeks dismissal on the grounds the Plaintiffs failed to join the at-fault driver as a co-defendant, which according to GEICO, is required by the terms of the policy. The policy language upon which GEICO relies provides:
If the insured and we cannot agree to arbitrate or agree to a third arbitrator1 the insured shall:
(a) sue the owner or driver of the uninsured auto and us in a court of competent jurisdiction. If the owner or driver is unknown, name us as the defendant. . . .
GEICO’s policy defines “uninsured auto” to include both underinsured drivers (i.e. those drivers having liability policy limits insufficient to satisfy damages) and uninsured drivers (i.e. those drivers who carry no liability coverage whatsoever).
The Plaintiffs’ UM claim against GEICO is essentially a breach of contract claim. Unquestionably, the Plaintiffs have no breach of contract/UM claim against the uninsured driver. To construe the policy language as proposed by GEICO potentially requires the Plaintiffs to file a frivolous or knowingly fruitless claim against the uninsured driver, exposing the Plaintiffs and their attorney to sanctions under Section 57.105, Fla. Stat. and §4-3.1 of the Florida Rules of Professional Conduct. Counsel for Plaintiffs asserts the at-fault driver has no assets to recover any judgment from. As such, to file an action against the at-fault driver would be a waste of his money, (ultimately his client’s), a waste of his time and effort, and a waste of judicial time.
If GEICO desires to join the at-fault driver then its remedy is to file a third party action for subrogation. It cannot rely on the policy language at issue to shift to the Plaintiffs GEICO’s burden of pleading and proving its third party action against the uninsured driver.
The GEICO policy in question appears to be one crafted under the former version of §627.727, Fla. Stat., which required joinder of the at-fault driver/owner. That statute has been amended and replaced and it is no longer required or necessary to join the driver. The UM carrier assumes all defenses of the alleged at-fault party and is free to join such a party if it deems such joinder appropriate.
Additionally, GEICO’s assertion that joinder of the uninsured driver is necessary “so as to permit the Defendant [GEICO] to fully exercise its subrogation rights since it has advanced funds equal to the limits of the tortfeasor’s liability coverage in accordance with 627.727, Fla. Stat.” is unavailing. GEICO’s argument reliance on Section 627.727(6)(b), Fla. Stat. is misplaced. Under that statute, if the injured plaintiffs wish to settle with an underinsured driver by accepting that driver’s liability policy limits, notice must be given to the UM carrier. The UM carrier may authorize settlement and waive its subrogation rights against the at-fault driver. Or, if the UM carrier wishes to preserve its subrogation rights against the at-fault driver by refusing permission to settle, the UM carrier must advance to the injured plaintiffs an amount equal to the underinsured driver’s policy limits. In the instant case, the alleged at-fault driver, Stacy H. Godwin, was uninsured, not underinsured. Godwin carried no bodily injury liability coverage whatsoever. As such, GEICO has neither waived its subrogation rights against Godwin, nor advanced any funds to the Plaintiffs.
In addition to the above arguments, GEICO also argues that Stacy H. Godwin is an indispensable or necessary party. This is not correct. As stated, the prior version of the statute, §627.727(6), Fla. Stat. (1991), required injured plaintiffs to sue both the at-fault driver and the UM carrier in cases where the UM carrier refused to approve the proposed settlement between the injured plaintiff and the at-fault driver. Thus, under the old statute, Stacey H. Godwin, would have been considered a necessary party. However, that statutory language was subsequently amended to remove the requirement that the injured plaintiff sue both the at-fault driver and the UM carrier. Stacey H. Godwin is not a necessary party to the Plaintiffs’ UM claim against GEICO.
Finally, GEICO’s policy language requiring the Plaintiffs sue both GEICO and the at-fault driver is facially unenforceable for another reason. As defined by GEICO, the term uninsured auto includes both the uninsured and underinsured. In the case of an underinsured at-fault driver, §627.727(6) contemplates that the injured party would have accepted the at-fault driver’s policy limits and, with the approval of the UM carrier, executed a release in favor of the at-fault driver. However, under the precise terms of GEICO’s policy, to enforce rights under a UM policy, that plaintiff is required to sue the very party the plaintiff had already released.
For all of the above reasons, GEICO’s motion to dismiss should be and the same is hereby denied.
The Defendant shall have twenty (20) days from the date hereof within which to file its answer, if any.
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1The parties waived arbitration.
