5 Fla. L. Weekly Supp. 616a
Insurance — Uninsured motorist — Torts — Automobile accident — Plaintiff/insured injured in automobile accident with uninsured tortfeasor will not be required at trial to establish statutory thresholds in order to recover non-economic damages — Although statute requires plaintiff to establish certain threshold requirements in order to obtain non-economic damages, these “threshold defenses” may not be raised because defendant tortfeasor had not obtained statutorily-mandated minimum insurance coverage — Uninsured motorist carrier stands in shoes of tortfeasor when claim for UM coverage is being made and cannot avoid or modify application of threshold laws such that threshold defenses are applicable even though tortfeasor is not entitled to raise those defenses — UM carrier’s motion for partial summary judgment denied — Plaintiff/insured who prevailed on coverage issue entitled to attorney’s fees
ALTON G. ASHBY, et al., Plaintiffs, v. JOSEPH LICHTY, et al., Defendants. 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. CL 95-9535 AN. May 22, 1998. Richard I. Wennet, Judge.
ORDER GRANTING PLAINTIFFS’ COUNTER-MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS MATTER came before the Court upon the motion for partial summary judgment filed by Defendant STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (“STATE FARM”) and the counter-motion for partial summary judgment filed by Plaintiffs ALTON G. ASHBY and SHERRY J. ASHBY; and upon consideration of the motions and argument of counsel; and upon consideration of applicable case law; and the Court being otherwise fully advised in the premises, the Court finds as follows:
I. It appears, from a review of the parties’ respective motions for partial summary judgment, the following facts are not in dispute:
A. Plaintiff ALTON G. ASHBY was involved in an automobile accident on January 23, 1995. The tortfeasor, Defendant JOSEPH LICHTY (“LICHTY”), was uninsured at the time of this accident. Plaintiffs had a policy of automobile insurance with Defendant STATE FARM which provides, among other standard coverages, under-insured/uninsured motorist coverage.
B. The policy at issue in this case contains language that Defendant STATE FARM contends entitles it to raise threshold defenses even though the uninsured tortfeasor, Defendant LICHTY, did not have the statutorily-mandated coverage. With regard to claims for uninsured coverage, this policy states:
The bodily injury must be a serious injury as described in Section 627.737(2) of the Florida Motor Vehicle No Fault Law before we will pay for damages consisting of pain, suffering, mental anguish, or inconvenience.
II. Both parties have cited the case of Dauksis v. State Farm, 623 So.2d 455 (Fla. 1993), as authority for the resolution of their respective positions. The Court has reviewed the Dauksis case and finds the opinion was based in part on policy language which existed within the policy in the Dauksis case. However, the Court is mindful of the argument of Plaintiffs, that uninsured motorist carriers stand in the shoes of the tortfeasor and if the tortfeasor is not entitled to raise threshold defenses due to being uninsured, then so is the uninsured motorist carrier.
The Court has shepardized the Dauksis decision and reviewed the cases which have issued since this opinion was issued. The cases which have been decided on this particular issue all resulted in a recovery for the insureds and went against the insurance carriers who argued that their policy language precluded the application of Dauksis.
Unfortunately for Defendant STATE FARM, the same thing must happen in the case at hand.
III. Florida, through its legislature, has declared that Plaintiffs injured in automobile accidents must meet certain “thresholds” before they are entitled to non-economic damages. Specifically, Florida Statute 627.737(2) restricts the damages that an injured Plaintiff in an automobile accident may recover unless these thresholds are met. From a review of the pleadings and the arguments made by the parties, it is apparent that the thresholds contained in Florida Statute 627.737(2)(a) and (b) are the ones at issue in this case. Specifically, these subparts require a Plaintiff seeking non-economic damages in an automobile accident to establish:
(a) Significant and permanent loss of an important bodily function,
(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
However, Florida’s statutory scheme provides that these “threshold defenses” may not be raised unless the defendant tortfeasor has obtained the minimum necessary, legally required insurance coverage mandated by the laws of this State. It is undisputed in this case that Defendant LICHTY was uninsured at the time of this accident. Therefore, the analysis of the parties’ respective positions must be made based upon an application of Florida’s “threshold” laws and whether same can be avoided or modified by an uninsured motorist carrier such as Defendant STATE FARM.
IV. Defendant STATE FARM would have this Court rule that Plaintiff ALTON G. ASHBY, in order to collect non-economic damages, must meet the threshold requirements contained within the policy, which specifically mentions Florida Statute 627.737(2). However, this Court cannot apply Florida Statute 627.737(2) without applying the remainder of Florida Statute 627.737, which says that 627.737(2) is available only to those persons who have insured themselves at the minimum standards required by law. Therefore, Defendant STATE FARM appears to be seeking to modify the application of Florida Statute 627.737 such that the threshold defenses contained within this law are applicable even though the remainder of the statute says the underlying tortfeasor (Defendant LICHTY) is not entitled to those same defenses.
It goes without saying that Defendant STATE FARM, like every other uninsured motorist carrier doing business in the State of Florida, stands in the shoes of the tortfeasor when a claim for uninsured motorist coverage is being made. To allow Defendant STATE FARM to modify the application of the limiting language of Florida Statute 627.737(1) (that the threshold defenses are only available to those who obtain minimum insurance requirements) flies in the face of both logic and reasoning. This Court need not cite the numerous appellate decisions which have held that uninsured motorist carriers are to be afforded all of the rights and privileges granted to the underlying tortfeasors. Along with those rights and privileges comes certain obligations and limitations which, by the insertion of the policy language contained above, Defendant STATE FARM is seeking to avoid
Taking Defendant STATE FARM’S position to its extreme, Defendant STATE FARM could limit the application of Florida Statute 627.737(2) by declaring that it would not provide uninsured motorist coverage for subparts (a) through (d) of section (2) of this statute. Defendant STATE FARM would be unable to restrict or limit coverage to its insureds for certain injuries that historically have fallen and have been included within the “threshold defenses” contained within Florida Statute 627.737(2)(a) through (d).
The Court is also concerned with Defendant STATE FARM’S position as it applies to the eventual trial of this case. How is the jury to be instructed that Defendant LICHTY is not entitled to threshold defenses but that Defendant STATE FARM, which provides uninsured motorist coverage and stands in the shoes of the tortfeasor, is entitled to these same defenses? Additionally, how can Defendant STATE FARM raise the “threshold defenses” and have them apply to this case when Defendant LICHTY is not entitled to those defenses? This Court cannot reconcile the application of Defendant STATE FARM’S position to the natural end of this and any other case that would involve the same policy language.
Therefore, based upon the foregoing, it is
ORDERED AND ADJUDGED:
1. Defendant STATE FARM’S motion for partial summary judgment is denied. The Plaintiffs’ counter-motion for partial summary judgment is granted. The net effect of this ruling is that at the upcoming trial of this cause, the Plaintiffs will not be required to establish the thresholds contained within 627.737(2) in order to recover non-economic damages.
2. Plaintiffs’ counter-motion for partial summary judgment seeks attorneys fees as this issue pertains to coverage issues. By the granting of their motion, Plaintiffs will have prevailed against their insurance carrier. The Court grants Plaintiffs’ request for attorneys fees and defers ruling as to amounts for a later hearing.
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