15 Fla. L. Weekly Supp. 1174a
Insurance — Uninsured motorist — Coverage — Stacking — Where policy had non-stacking UM option, insured is not covered for accident that occurred while insured was driving vehicle owned by named insured and not insured under policy
MOSHE I. GOLDFIELD, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and JAMES ARTHUR GARMAN, Defendants. Circuit Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502004CA007920XXXXMBAD. September 10, 2008. David French, Judge. Counsel: Kyle Silverman, for Plaintiff. Erich von Unruh, Kirwan & Spellacy, P.A., Fort Lauderdale, for Defendant State Farm. John A. Chiocca, for Defendant Garman.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT DATED ON OR ABOUT APRIL 18, 2008
THIS CAUSE having come upon to be heard on Defendant’s Motion for Final Summary Judgment dated on or about April 18, 2008, and the Court having considered same, the court file, legal authorities and being otherwise advised in the premises, finds as follows:
FACTUAL BACKGROUND:
The Plaintiff filed a breach of contract claim against the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (hereinafter referred to as “State Farm”). Paragraph six of the Plaintiff’s complaint states that the Plaintiff was insured on August 12, 2000, the date of the loss, under an automobile insurance policy written by Defendant, State Farm. This State Farm policy provided uninsured/underinsured motorist coverage benefits for the Plaintiff, subject to the terms and limitations of the policy. The policy of insurance referred to in Paragraph six of Plaintiff’s Complaint was for a 1998 Nissan Ultima Policy number 7191-948-59H. It is undisputed that the Plaintiff, Moshe Goldfield, was not driving the insured Nissan Altima at the time of the accident. The vehicle that the plaintiff was driving at the time of the accident was a 1997 Mercury Grand Marquis, which was owned by Louise McCleese and carried no insurance. Moreover, this car was not a newly acquired car as this car was owned by Louise McCleese on or about May 8, 1997.
Moshe Goldfield was covered under a State Farm policy, which includes a signed Uninsured Motorist Selection/Rejection form, choosing non-stacking Uninsured Motorist coverage. Moshe Goldfield was operating a car for which no insurance was purchased. In addition, the car was owned by another insured, Louise McCleese who is listed on the policy. Therefore, there is no Uninsured Motorist Coverage according to the State Farm policy language.
CONCLUSIONS OF LAW:
Florida Statute 627.727(9) (2000) states, “Insurers may offer policies of uninsured motorist coverage containing policy provisions, in language approved by the office, establishing that if the insured accepts this offer:” Florida Statute § 627.727 (2000). The statute then goes on to state five (5) subsections of language that insurers may include or offer in their policies of insurance which impose limitations on the Uninsured Motorist coverage.
In order for an insurer to be able to offer limited Uninsured Motorist coverage they must provide a form approved by Florida Statutes 627.727, to the insured, which informs the insured that they are choosing Uninsured Motorist Coverage with limitations. The last paragraph under Florida Statute 627.727 subsection (9), states, “If this form is signed by a named insured, applicant, or lessee, it shall be conclusively presumed that there was an informed knowing acceptance of such limitations.” Florida Statute § 627.727 (2000).
Moreover, the last paragraph under Florida Statute § 627.727 subsection (9), states, “When the named insured, applicant, or lessee has initially accepted such limitations, such acceptance shall apply to any policy which renews, extends, changes, supersedes, or replaces an existing policy unless the named insured requests deletion of such limitations and pays the appropriate premium for such coverage”. Florida Statute § 627.727 (2000).
The named insureds, Moshe Goldfield and Louise McClees, did not request deletion of any limitations as stated in the Florida Uninsured Motor Vehicle Coverage Selection/Rejection Form which Moshe Goldfield signed on February 5, 1998, nor did they pay the appropriate premium for such coverage where any limitation would have been deleted.
The form approved by Florida Statute § 627.727(9) (2000), is the Florida Uninsured Motor Vehicle Coverage Selection/Rejection Form which Moshe Goldfield signed on February 5, 1998. State Farm includes within its policy the language required under Florida Statute § 627.727(9) to limit Uninsured Motorist Coverage. Florida Statute §627.727(9) subsection (d) specifically provides the limitation for which Moshe Goldfield is excluded from coverage in this claim.
Florida Statute § 627.727(9) subsection (d) states, “The uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in her or his household who are injured while occupying any vehicle owned by such insured for which uninsured motorist coverage was not purchased.”
On page twenty one (21) of the policy of insurance at issue in this case, under the heading, “When Coverage U3 Does Not Apply”, states,
“THERE IS NO COVERAGE:
2. FOR BODILY INJURY TO AN INSURED
WHILE OCCUPYING ANY VEHICLE
OWNED BY YOU, YOUR SPOUSE, OR
ANY RELATIVE IF IT IS NOT INSURED
FOR THIS COVERAGE UNDER THIS
POLICY.”
The above policy language mirrors the language allowed under Florida Statute § 627.727(9)(d) and therefore is an allowable limitation on any Uninsured Motorist coverage purchased.
On page four (4) of the Policy of Insurance at issue in this case, the word, “YOU”, is defined as, “You or Your — means the named insured or named insureds shown on the declarations page. Both Moshe Goldfield and Louise McClles are the named insured on the declarations page of this policy. Louise McClees is a named insured under the declarations page of this policy of insurance and she owned the vehicle which was involved in the accident which is the subject of this claim. Therefore, Louise McClees’s name can be inserted where the word,“YOU”, is in the above policy language.
Uninsured motorist coverage is not available if the vehicle they were driving at the time of the accident was not listed on the policy of insurance. Larusso v. Garner, 888 So. 2d 712 (4th DCA 2004). Likewise, if a vehicle is not listed on the policy of insurance, and no separate premium was paid for the vehicle, there is no Uninsured Motorist coverage available. Geico Gen. Ins. Co. v. Schwinn, 2006 U.S. Dist. LEXIS 34650 (D. Fla. 2006).
In a case where a relative for a named insured chose a State Farm Policy of Insurance and also chose to sign a non-stacking Selection Rejection form the Court held, “In any event, the situation involved in this case is simple. Section 627.727(9)(d) permits insurers in this state to issue policies that do not provide uninsured motorist coverage to the insured or family members residing in the household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased. Government Employees Insurance Co. v. Douglas, [**6] 654 So. 2d 118 (Fla. 1995); Grant v. State Farm Fire & Casualty Co., 638 So. 2d 936 (Fla. 1994). The notice form used in this case informed Mangual’s parents that this would result if they purchased a policy with a non-stacking option for a reduced premium. And the policy issued contained that exclusion or limitation. It provided:
“When Coverage U3 Does Not Apply There is no coverage:
(3) For Bodily Injury To An Insured While Occupying A Motor Vehicle Owned by You, Your Spouse Or Any Relative If It Is Not Insured For This Coverage Under this Policy.” Mangual v. State Farm Mutual Automobile Ins. 719 So. 2d 981 (5th DCA 1998). Emphasis Added.
The language in the above cited case is identical to the language in the case at bar and the Selection Rejection Notice Form used by State Farm in the above case also has the identical language to the case at bar which the Court in Mangual, said was approved by the Department of Insurance. Mangual v. State Farm Mutual Automobile Ins., 719 So. 2d 981 (5th DCA 1998). The Court in Mangual held that there was no Uninsured Motorist coverage in this case. Mangual v. State Farm Mutual Automobile Ins., 719 So. 2d 981 (5th DCA 1998).
Florida Statute section 627.727(9) requires insurers to satisfy statutorily-mandated requirements when limiting coverage which include providing notice to the insured of the coverage limitations and filing revised premium rates with the Department of Insurance prior to initially providing the limited Uninsured Motorist Coverage. Stadelman v. Johnson, 842 So. 2d 1001 (Fla. 4th DCA 2003); Geico v. Douglas, 654 So. 2d 118 (Fla. 1995). The Defendant State Farm filed the revised premium rates with the Department of Insurance prior to initially providing the limited Uninsured Motorist Coverage in this claim as required by Statute.
ANALYSIS/CONCLUSION
Florida Statutes and case law hold that if bodily injury occurs to an insured while they are occupying any vehicle owned by a named insured, then the car owned by the named insured must be listed on the policy of insurance in order to receive non-stacking Uninsured Motorist benefits. Moshe Goldfield signed a Florida Uninsured Motor Vehicle Coverage Selection/Rejection Form which complies with Florida Statute 627.727, and on the form, he selected non-stacking Uninsured Motorist Coverage. In addition, State Farm must and did file revised, decreased premium rates for the policy at issue in this case.
Moshe Goldfield was driving a vehicle when the accident occurred that was owned by Louise McClees, the other named insured on the subject policy of insurance. The car involved in this accident was not listed on the subject policy of insurance. The car involved in this accident was not insured by the payment of premiums by either named insured. Moshe Goldfield a named insured, chose to sign the Florida Uninsured Motor Vehicle Coverage Selection/Rejection Form which complies with Florida Statute 627.727. State Farm filed revised, decreased premium rates for the subject policy. Moshe Goldfield is not entitled to Uninsured Motorist coverage for this accident pursuant to the terms and limitations of the policy and the cited case and statutory law.
Accordingly, it is hereby,
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment dated on or about April 18, 2008 is GRANTED.
