5 Fla. L. Weekly Supp. 391a

Insurance — Uninsured motorist — Exclusions — Plaintiff, who was struck by vehicle separately owned by her husband and separately insured, seeking recovery for personal injury resulting from accident under UM coverage of her policy, because she cannot recover damages under her husband’s policy due to family exclusion contained therein — Genuine issue of material fact exists as to applicability of policy provision excluding from the definition of uninsured motor vehicle a vehicle “furnished for regular use of you, your spouse, or any relative” where it was unclear whether vehicle was “furnished” to husband, solely owned by husband, or furnished to plaintiff and/or other family members on occasion — Because provision merely excludes vehicles “furnished” for regular use of insured or members of her family from uninsured motorist coverage, and not vehicles “owned” by such persons, questions of whether vehicle driven by husband was owned solely by him and whether vehicle was perhaps also “furnished” to plaintiff and/or other members of her family on occasion, thereby precluding coverage, become relevant and material — Plaintiff’s theory that husband was uninsured or underinsured by having policy of insurance with family exclusion to coverage for personal and/or bodily injury has merit — Although husband’s vehicle cannot be considered both insured and uninsured in context of his policy, because two separate policies are involved, husband’s vehicle can be considered insured vehicle under his policy and uninsured vehicle under plaintiff’s policy — Statutory requirements — Genuine issues of fact exist regarding whether insurer complied with requirements of section 627.727(9)(d), which requires insurance carriers to provide named insured with notice of limitations imposed by exclusionary provision and to obtain knowing acceptance of limited coverage — Motion for summary judgment denied

JERRI KLAHR HOOD, Plaintiff, v. EMORY HOOD and STATE FARM FIRE AND CASUALTY COMPANY, Defendants. 13th Judicial Circuit in and for Hillsborough County, General Civil Division. Case No. 96-4721, Division O. December 16, 1997. William Fuente, Judge. Counsel: Jerrold K. Phillips, Tampa, for Plaintiff. Rebecca S. Hendry, St. Petersburg, for Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS MATTER came before the Court for hearing on November 25, 1997 on Defendant State Farm Fire and Casualty Company’s (hereinafter State Farm) Motion for Summary Judgment. Having considered the motion, Plaintiff’s UM policy provisions, arguments of counsel, and being otherwise informed in the premises, the Court denies Defendant’s motion for the reasons that follow.

FACTUAL BACKGROUND

Plaintiff’s vehicle was struck by a vehicle owned by her husband Emory Hood, while each was operating such motor vehicle separately owned and separately insured. Plaintiff cannot recover damages under her husband’s policy due to a family exclusion contained therein. However, she seeks recovery for personal injury resulting from the accident under the uninsured motorist (UM) coverage of her policy. Plaintiff’s UM coverage is with State Farm. Defendant claims that Mr. Hood’s vehicle is expressly excluded from the definition of what constitutes an “uninsured vehicle.”

DISCUSSION APPLICABLE STANDARD FOR SUMMARY JUDGMENT

It is appropriate for a court to grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). It is not the function of the Court to ascertain whether the Plaintiff can prove her case, rather, the Court’s function “solely is to determine whether the pleadings, deposition, and affidavits conclusively show that Plaintiff cannot prove [her] case.” See Crandall v. Southwest Florida Blood Bank, 581 So. 2d 593, 595 (Fla. 2d DCA 1991) (emphasis added), reh’g denied, 1991 Fla. App. LEXIS 13911 (Fla. 2d DCA 1991) (citing Williams v. Florida Realty & Management Co., 272 So. 2d 176 (Fla. 3d DCA 1973)); See also Edenfield v. B & I Contractors, Inc., 624 So. 2d 389, 391 (Fla. 2d DCA 1993) (holding that the burden is on the moving party to demonstrate conclusively that the non-moving party cannot prevail); Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991) (same).

As the moving party, Defendant has the burden of showing a conclusive absence of any genuine issue of material fact. This Court “must draw every possible inference in favor of [Plaintiff], the party against whom summary judgment is sought.” See Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) (citing Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977); Holl v. Talcott, 191 So. 2d 40 (Fla. 1966) (the burden of proving the nonexistence of a genuine triable issue is on the party moving for summary judgment; moving party’s papers should be strictly construed, whereas opposing party’s papers should be liberally construed)), cert. denied, 232 So. 2d 181 (Fla. 1969). A court should not grant summary judgment “unless the facts are so crystallized that nothing remains but questions of law.” Moore, 475 So. 2d at 668 (citing Shaffran v. Holness, 93 So. 2d 94 (Fla. 1957) (emphasis added)). “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues,” it becomes a factual issue to be determined at trial. Moore, 475 So. 2d at 668 (citing Williams v. Lake City, 62 So. 2d 732 (Fla. 1953); Crovella v. Cochrane, 102 So. 2d 307 (Fla. 1st DCA 1958)). Summary judgment should be “sparingly granted, and only in cases where there remains no genuine issue of any material fact.” Williams, 62 So. 2d at 733 (emphasis supplied).

This Court has examined the record and determines that Defendant has not sustained its requisite burden. It is apparent from a review of the record that the instant case presents genuine issues of material fact.

VALIDITY OF EXCLUSIONS

In order to determine whether the pertinent provisions of Plaintiff’s policy entitle her to uninsured motorist coverage, the Court must first ascertain whether these provisions are valid. There are two provisions at issue. The Court must consider the exclusions at issue in light of cases involving factually analogous provisions and facts. There are no reported cases with facts similar to those in the instant case, however, courts have construed exclusionary provisions almost identical to those at issue in this cause.

The first provision at issue states in pertinent part:

“An uninsured motor vehicle does not include a land motor vehicle: . . . furnished for the regular use of you, your spouse or any relative . . . .” (See Insurance Policy at Section III, para. 2 (2) page 13) (emphasis supplied).

Family exclusion provisions substantially similar to and even more restrictive than the one quoted above have been deemed valid and not against public policy. In Smith v. Valley Forge Ins. Co., 591 So. 2d 926, 927 (Fla. 1992), the Florida Supreme Court determined that a provision of uninsured motor vehicle coverage excluding any vehicle owned by or furnished or available for use of “you or any family member” was valid and not against public policy. See also Harrison v. Metropolitan Property and Liability Insurance Co., 475 So. 2d 1370, 1372 (Fla. 2d DCA 1985) (provision stating that a vehicle is not uninsured if it is “a covered automobile or a non-owned automobile regularly furnished or available for use by you or any relative,” is valid, “[n]otwithstanding what might appear to be a proscription in Lee v. State Farm Mutual Automobile Insurance Co., 339 So. 2d 670 (Fla. 2d DCA 1976), cert. denied, 348 So. 2d 954 (Fla. 1977), against any restrictions on uninsured motorist coverage”); Amica Mutual Insurance Co. v. Wells, 507 So. 2d 750 (Fla. 5th DCA 1987) (family exclusion was valid); Barlow v. Auto-Owners Insurance Co., 358 So. 2d 1128, 1129 (Fla. 4th DCA 1978) (provision stating that “uninsured automobile . . . shall not include” a(n) automobile owned by or furnished for regular use to the named insured . . .”); Contra Lee v. State Farm Mutual Automobile Insurance Co., 339 So. 2d 670, 672 (Fla. 2d DCA 1976) (holding that the following exclusion is “legally impermissible,” against public policy and void: “uninsured motorist vehicle shall not include: a land motor vehicle furnished for the regular use of the named insured or any resident of the same household . . .”)¹; Jernigan v. Progressive American Insurance Co., 501 So. 2d 748, 750 (Fla. 5th DCA 1987) (exclusion of a vehicle “owned by or furnished or available for regular use by you or your relative,” from the definition of “uninsured motor vehicle” was contrary to public policy), rev. denied, 513 So. 2d 1062 (Fla. 1987).

The second exclusionary provision at issue states that:

“[t]here is no coverage: . . . 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. (See Insurance Policy at Section III, para. 3 at page 15) (emphasis supplied).

The Florida Supreme Court has held that such a provision is contrary to the uninsured motorist statute. Mullis v. State Farm Mutual Auto Insurance Co., 252 So. 2d 229, 229 (Fla. 1971) (provision excluding uninsured motorist coverage for bodily injury to an insured, while occupying or through being struck by a motor vehicle owned by the named insured or any resident of the same household, if such vehicle was not insured automobile is contrary to uninsured motorist coverage), superseded by statute on other grounds, 349 So. 2d 638 (Fla. 1st DCA 1977)². Moreover, in Lee v. State Farm Mutual Insurance Co., 339 So. 2d 670, 672 (Fla. 2d DCA 1976), cert. denied, 348 So. 2d 954 (Fla. 1977), the Second District Court of Appeal determined that an exclusion almost identical to the one in the instant case was “legally impermissible.” See also Jernigan v. Progressive American Insurance Co., 501 So. 2d 748, 750 (Fla. 5th DCA 1987) (similar provision was deemed to be against public policy); Lewis v. Cincinnati Insurance Co., 503 So. 2d 908, 909 (Fla. 5th DCA 1987) (provision denying uninsured motorist coverage for bodily injury sustained “while occupying . . . any motor vehicle . . . or any type owned by you or any family member which is not insured for this coverage under this policy,” was not permissible), rev. denied, 511 So. 2d 297 (Fla. 1987).

Neither Mullis nor Lee has been overruled; however, the latter has been criticized to some extent. The Florida Supreme Court recognized that “Lee appears to say that all restrictions on uninsured motorist coverage, without exception, are against public policy and are void.” Reid v. State Farm Fire & Casualty Co., 352 So. 2d 1172, 1174 (Fla. 1977). However, the Reid Court declined to adopt such a perspective but instead impliedly advocated a case-by-case determination of the validity of restrictions to uninsured motorist coverage. The Court did not overrule Lee, but rather factually distinguished it and determined that the “particular restriction . . . in the present case [before the Court] is not against public policy and is not void. To hold otherwise would completely nullify the family-household exception.” Id. Accordingly, in the absence of any factually analogous cases to the contrary, Lee is controlling with regard to this particular exclusionary provision, and supports the conclusion that the provision may not be entirely valid. Even if this provision is valid, genuine issues of material fact exist regarding whether Defendant State Farm complied with certain statutory requirements. (See infra discussion of statutory requirements).

Post-Mullis cases have considered the validity of family exclusions, however, each of these cases is factually distinguishable from the case at bar. See e.g. Fitzgibbon v. Government Employees Insurance Co., 583 So. 2d 1020 (Fla. 1991) (appellant was injured in an accident while occupying a vehicle owned and driven by her husband; the Court held that the family exclusion which excluded uninsured motorist coverage to members of the household injured by negligence of another member of household while occupying insured vehicle did not violate public policy) (emphasis added); Brixius v. Allstate Insurance Co., 589 So. 2d 236 (Fla. 1991) (uninsured motorist benefits were not available to insured injured as a passenger in vehicle owned by her; although policy excluded coverage for injuries sustained by named insured and provided that “an uninsured auto is not a vehicle defined as an insured auto under the liability portion of this policy”); Auto Owners Insurance Company v. Van Gessel, 665 So. 2d 263 (Fla. 2d DCA 1995) (doctrine of interspousal immunity does not invalidate family exclusion clauses making liability coverage inapplicable to “you or any person living in your household and related to you by blood, marriage or adoption”) (emphasis added), rev. denied, 671 So. 2d 788 (Fla. 1996).

EFFECT OF EXCLUSIONARY PROVISIONS

The question implicated by the exclusionary provisions discussed herein is whether Mr. Hood is “uninsured.” This question presents a genuine issue of material fact precluding the entry of summary judgment. “When the language of an insurance policy is clear and unambiguous, it must be accorded its natural meaning.” Dixie Insurance Co. v. Beaudette, 474 So. 2d 1264, 1265 (Fla. 5th DCA 1985) (citing Sanz v. Reserve Insurance Co. of Chicago, Illinois, 172 So. 2d 912 (Fla. 3d DCA 1965)). An ambiguity in an insurance policy “arises when more than one interpretation `may fairly be given’ to a policy provision.” Ellsworth v. Insurance Co. of North America, 508 So. 2d 395, 400 (Fla. 1st DCA 1987) (quoting Traveler’s Insurance Co. v. C.J. Gayfer’s & Co., Inc., 366 So. 2d 1199, 1201-02 (Fla. 1st DCA 1979)). The policy provisions in the case at bar are not ambiguous, and they must be accorded their natural meaning. Pursuant to Plaintiff’s policy, “an uninsured motor vehicle does not include a land motor vehicle . . . furnished for the regular use of you, your spouse or any relative.” (See Insurance Policy at Section III, para. 2 page 13). The mere failure of a policy to define a term does not necessarily render that term ambiguous. Jefferson Insurance Co. of New York v. Sea World of Florida, Inc., 586 So. 2d 95, 97 (Fla. 5th DCA 1991) (citation omitted). Therefore, the above provision is not rendered ambiguous simply because the term “furnished” is not defined in the policy. The plain or natural meaning of “furnish” is to “equip with what is needed,” “to supply,” or to “give.” The American Heritage College Dictionary 552 (3d ed. 1993); See also Webster’s Third New International Dictionary 923 (1986) (furnish means “to provide or supply with what is needed” or “to make a gift of”).³ Even upon applying the plain meaning of the term “furnished” to the facts at bar, this Court cannot summarily conclude that Mr. Hood is excluded from Plaintiff’s uninsured motorist coverage. There is a genuine issue of material fact regarding whether the vehicle driven by Mr. Hood and involved in the subject accident was “furnished” to him. Plaintiff asserts that (1) she “did not furnish Emory Hood’s car to him;” (2) “[n]o other person or entity furnished Emory Hood’s car for his regular use; (2) Emory Hood’s car was purchased and used by Emory Hood; and (4) she does “not understand [the term furnished] to exclude Emory Hood when he was driving his own car.” (See Plaintiff’s Affidavit in Opposition to Defendant’s Motion for Summary Judgment at para. 5).

Moreover, the record demonstrates that Mr. Hood “owned” the vehicle that struck the vehicle which Plaintiff was driving. (See Defendant’s Request for Plaintiff’s Admissions at para. 4: “Admit that in the accident referenced in the Complaint, the vehicle which you were driving was struck by a vehicle owned by Emory Hood”); (See Plaintiff’s Response to Request for Admissions at para. 4: “Admitted”). However, there is a genuine issue of material tact regarding whether Mr. Hood was the “sole record title owner of the car he was driving which struck the vehicle driven by [Plaintiff]” (See Plaintiff’s Request for Defendant Emory Hood’s Admissions at para. 2: “Emory Hood was the sole record title owner of the car he was driving which struck the vehicle driven by Jerry Klahr Hood”); (See Defendant’s Response to Plaintiff’s First Request for Admissions at para 2: “Without knowledge and demand strict proof thereof”). If Mr. Hood was not the “sole owner,” then the possibility that the vehicle was “furnished” to him by the co-owner or some other person or entity is entirely possible. Accordingly, a genuine question of material fact exists which precludes the entry of summary judgment.

Moreover, this provision merely excludes vehicles “furnished” for the regular use of the insured or members of her family from uninsured motorist coverage. It does not exclude vehicles “owned” by such persons from coverage as other provisions of this nature generally do. (See supra discussion of cases considering the validity of this type of provision excluding vehicles “furnished for regular use or owned by” members of insured’s family from uninsured motorist coverage). Accordingly, the questions of whether the vehicle driven by Mr. Hood was owned solely by him and whether the vehicle was perhaps also “furnished” to Plaintiff and/or other members of her family on occasion, thereby precluding coverage, become relevant and material.

The Court determines that the plain language of the relevant provisions raise genuine issues of material fact as to whether Mr. Hood’s vehicle constitutes an “uninsured” vehicle and can be excluded from coverage under Plaintiff’s uninsured motorist policy.⁴ Moreover, the Court has examined Plaintiff’s Third Amended Complaint and has considered Plaintiff’s theory regarding why Mr. Hood should be considered “uninsured.” Plaintiff claims that her husband “was uninsured or underinsured by having a policy of insurance with a family exclusion to the coverage for personal and/or bodily injury.” (See Third Amended Complaint at para. 9); (See also Third Amended Complaint at para. 12) (“the family exclusion of policy number 7464-436-F30-59 makes Emory Hood an uninsured driver”). Consideration of these allegations is warranted because a cursory analysis of the applicable law regarding this issue would justify entry of summary judgment based on the premise that Defendant Hood’s vehicle cannot constitute an “uninsured” motorist in the first instance, notwithstanding the application of the relevant uninsured motorist coverage exclusions.

“[A]n insured vehicle cannot become uninsured simply because liability coverage was not available to a particular individual because of a household exclusion provision.” Deville v. Allstate Insurance Co., 603 So. 2d 556, 557 (Fla. 3d DCA 1992) (citing Reid v. State Farm Fire & Casualty Co., 352 So. 2d 1172, 1173 (Fla. 1977)); See also Brixius v. Allstate Insurance Co., 549 So. 2d 1191, 1192 (Fla. 2d DCA 1989) (reasoning that Allstate Insurance Co. v. Boyton, 486 So. 2d 552 (Fla. 1986), [superseded on other grounds by statute as stated in 650 So. 2d 128 (Fla. 2d DCA 1995)], “in effect reaffirms” Reid, in asserting that “a valid exclusion in a liability policy does not make a vehicle uninsured for uninsured motorist purposes”). This law, however, is subject to an exception. Reid held that a vehicle cannot be considered both an insured and uninsured vehicle under the same policy. Boyton and the instant case are factually distinguishable from Reid because they involve two separate policies. Therefore, Reid is inapplicable on this point. See Brixius, 549 So. 2d at 1192 (quoting Boyton, 486 So. 2d at 555 n.5) (discussing inapplicability of Reid when two separate policies are involved). In the case at bar, Defendant Hood’s vehicle cannot be considered both insured and uninsured in the context of his policy. However, it can be considered an insured vehicle under Defendant’s policy and an uninsured vehicle under Plaintiff’s policy. Accordingly, Plaintiff’s theory has merit.

STATUTORY REQUIREMENTS

Plaintiff also contends that summary judgment is inappropriate because Defendant State Farm “has failed to prove that it provided notice to [Plaintiff] of the alleged limitation and that it obtained a knowing acceptance of any limited coverage” pursuant to Section 627.727 (9)(d) of the Florida Statutes, which requires insurance carriers to provide their insured with notice of the exclusion’s impact and to obtain a knowing acceptance of limited coverage. (See Plaintiff’s Memorandum at 2, 7). Section 627.727 (9), Florida Statutes provides in pertinent part:

Insurers may offer policies of uninsured motorist coverage containing policy provisions, in language approved by the department, establishing that if the insured accepts this offer: (d) The uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased.

In connection with the offer authorized by this subsection, insurers shall inform the named insured, applicant, or lessee, on a form approved by the department, of the limitations imposed under this subsection and that such coverage is an alternative to coverage without such limitations. If this form is signed by a named insured, applicant, or lessee, it shall be conclusively presumed that there was informed, knowing acceptance of such limitations.

§ 627.727 (9), Fla. Stat. (1995).

A limitation similar to the second exclusion discussed herein (see supra) has been deemed to require compliance with Section 627.727 (9)(d), Florida Statutes. See Government Employees Insurance Co. v. Douglas, 654 So. 2d 118, 120 (Fla. 1995) (relevant exclusion stated: “The uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased). Plaintiff claims that “[a]t no time did any employee or agent from State Farm Insurance Company advise [her] that there was any limitation or exclusion from [her] uninsured motorist coverage. (See Plaintiff’s Affidavit in Opposition to Defendant’s Motion for Summary Judgment at para. 4). Additionally, the record is lacking with respect to proof of Defendant State Farm’s compliance with the above-quoted statutory requirements. Genuine issues of fact exist with regard to whether State Farm complied with the requirements of Section 627.727 (9)(d), Florida Statutes. Accordingly, for all of the foregoing reasons, it is

ORDERED and ADJUDGED that summary judgment, be and is, DENIED.

— — — —

¹Lee has not been overruled but has been criticized, to a limited extent, by the Florida Supreme Court. (See infra). On this particular issue, Smith (supra) controls since it involves a provision substantially similar to the one at issue and is a Florida Supreme Court case.

²Mullis is apparently still controlling authority in this state, despite recent and interim statutory changes and rewording.” Lewis v. Cincinnati Insurance Co., 503 So. 2d 908, 910 (Fla. 5th DCA 1987).

³Plaintiff contends that the terms “furnished” and “owned” are “mutually exclusive,” since “[a]n owner may furnish a car for another’s regular use but buys and uses his own car.” (See Plaintiff’s Memorandum at 3).

⁴Since the applicable provisions are unambiguous, they do not require construction and therefore, the “rule that insurance contracts shall be strictly construed against the insurer cannot and does not apply.” Boyd v. United States Fidelity & Guaranty Co., 256 So. 2d 1, 4 (Fla. 1971). Plaintiff advocates liberal construction of the policy in favor of the insured and strict construction against the insurer. (See Plaintiff’s Memorandum at 5, 6) (citing Hartnett v. Southern Insurance Co., 181 So. 2d 524, 528 (Fla. 1965).

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