15 Fla. L. Weekly Supp. 901b
Insurance — Uninsured motorist — County that was self-insured at time county bus collided with insured’s vehicle is deemed statutorily uninsured, and insured was not required to seek compensation from county prior to seeking payment under UM coverage — County is not indispensable party to insured’s action against UM carrier
LUCY HARTY, Plaintiff, vs. AMICA MUTUAL INSURANCE COMPANY, Defendant. Circuit Court,17th Judicial Circuit in and for Broward County. Case No. 07-26455 CA 14. June 25, 2008. Thomas M. Lynch, IV, Judge. Counsel: Steven N. Ainbinder, Law Offices of Steven N. Ainbinder, P.A., Boca Raton, for Plaintiff. James J. McNally, Amica Mutual Insurance Company, Coral Gables.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT II OF PLAINTIFF’S PETITION FOR DECLARATORY RELIEF AND AS TO RESPONDENT’S SIXTH (6th) AND NINTH (9th) AFFIRMATIVE DEFENSES
The above captioned case came on to be heard by the Court, pursuant to the Motion of the Plaintiff, LUCY HARTY, for Partial Summary Judgment as to Count II of Plaintiff’s Petition for Declaratory Relief and as to Defendant’s, AMICA MUTUAL INSURANCE COMPANY, (hereinafter referred to as AMICA) Sixth (6th) and Ninth (9th) Affirmative Defenses to Plaintiff’s Complaint for uninsured motorist insurance benefits. The Court, having heard argument by counsel for the respective parties involved herein, having considered the statutory and case law, the various memoranda of law submitted by the parties, and having examined the record evidence, finds that, based upon the authority of Young v. Progressive Southeastern Insurance Company, 753 So.2d 80 (Fla. 2000), Gonzalez v. MI Temps of Florida Corporation, 664 So.2d 17 (Fla. 4th DCA, 1995), Kephart v. Pickens, 271 So.2d 163, 164 (Fla. 1973), Hartford Insurance Company v. Minagorri, 675 So.2d 142 (Fla. 3rd DCA, 1996) and Arrieta v. Volkswagen Insurance Company, 343 So.2d 918 (Fla. 3rd DCA, 1977), that there is no material issue of fact precluding the entry of a partial Summary Judgment in favor of the Plaintiff, LUCY HARTY, as to Count II of Plaintiff’s Petition for Declaratory Relief and as to Defendant’s, AMICA’s, Sixth (6th) and Ninth (9th) Affirmative Defenses to Plaintiff’s Complaint for uninsured motorist insurance benefits.
The Court finds that:
1. On April 11, 2007, LUCY HARTY had an insurance policy with AMICA MUTUAL INSURANCE COMPANY, which provided uninsured motorist insurance benefits.
2. On April 11, 2007, LUCY HARTY, while operating her motor vehicle, was involved in a motor vehicle collision with a public bus owned by Broward County Transit.
3. Count I of this lawsuit stems from a claim for uninsured motorist insurance benefits.
4. Count II of this lawsuit stems from an action for Declaratory Relief, pursuant to §86.011, Florida Statutes, which requested a judicial determination as to:
a. whether LUCY HARTY was required to seek compensation from Broward County Transit, a self-insured governmental agency, prior to seeking uninsured motorist benefits from AMICA and;
b. whether Broward County was an indispensible party to the instant litigation.
5. The evidence is uncontroverted that at the time of the collision, Broward County was a self-insured governmental agency, whose self insurance program was administered by Broward County Risk Management, in accordance with Section 768.28, Florida Statutes.
6. AMICA alleged in its Sixth (6th) Affirmative Defense that it was entitled to a setoff up to $100,000.00, which is the cap on damages afforded to Broward County, pursuant to Section 768.28, Florida Statutes.
7. The Florida Supreme Court in, Young v. Progressive Southeastern Insurance Company, 753 So.2d 80 (Fla. 2000), held that, “a motorist who is self-insured must be deemed statutorily uninsured.” Young at 85.
8. In that the evidence is uncontroverted that Broward County was, “self-insured,” at the time of the collision, this Court rules as a matter of law that LUCY HARTY is not required to seek compensation from Broward County, prior to seeking payment under her uninsured motorist insurance coverage with AMICA.
9. The Defendant alleged in its Ninth (9th) Affirmative Defense that Broward County was an indispensible party to this action.
10. An indispensible party is one whose interest in the subject matter of the action is such that if it is not joined, a complete and efficient determination of the equities and rights and liabilities of the other parties is not possible. See, Gonzalez v. MI Temps of Florida Corporation, 664 So.2d 17 (Fla. 4th DCA, 1995), Kephart v. Pickens, 271 So.2d 163, 164 (Fla. 1973).
11. The Court rules as a matter of law that Broward County is not an indispensible party to this litigation.
12. An insured is not required to file an action against a tortfeasor prior to proceeding against a UM carrier and has the right to make a claim against his or her UM carrier instead of suing the tortfeasor. See, Hartford Insurance Company v. Minagorri, 675 So.2d 142 (Fla. 3rd DCA, 1996), Arrieta v. Volkswagen Insurance Company, 343 So.2d 918 (Fla. 3rd DCA, 1977).
13. The Court rules as a matter of law that LUCY HARTY is not required to name Broward County as a Defendant in this action.
The Court being otherwise fully advised in the premises, it is therefore,
ORDERED AND ADJUDGED that:
1. Based upon the arguments set forth in Plaintiff’s Motion for Partial Summary Judgment and Plaintiff’s Response to Defendant’s Memorandum of Law in Opposition to Plaintiff’s Motion for Partial Summary Judgment, the motion of the Plaintiff, LUCY HARTY, for Partial Summary Judgment as to Count II of Plaintiff’s Petition for Declaratory Relief and as to Defendant’s, AMICA MUTUAL INSURANCE COMPANY, Sixth (6th) and Ninth (9th) Affirmative Defenses to Plaintiff’s Complaint for uninsured motorist insurance benefits, is hereby GRANTED.
2. Partial Summary Judgment is hereby entered in favor of the Plaintiff, LUCY HARTY, which precludes the Defendant, AMICA MUTUAL INSURANCE COMPANY:
a. from presenting any evidence that LUCY HARTY is required to seek compensation from Broward County, prior to seeking payment under her uninsured motorist insurance coverage with AMICA;
b. from presenting any evidence that Broward County is an indispensible party to this action, or;
c. from presenting any evidence that the Plaintiff, LUCY HARTY is required to include Broward County as a party Defendant to this action.
3. Summary Judgment is entered in favor of the Petitioner, LUCY HARTY, as to Count II of Plaintiff’s Petition for Declaratory Relief.
4. Summary Judgment is entered against Defendant’s Sixth (6th) and Ninth (9th) Affirmative Defenses set forth in Defendant’s Answer.
5. All other affirmative defenses being asserted by the Defendant, AMICA MUTUAL INSURANCE COMPANY, are not affected by the entry of this Order.
