6 Fla. L. Weekly Supp. 486d
Insurance — Uninsured motorist — Owner of vehicle who was listed as insured on declarations page of policy and who was injured while riding as a passenger in insured vehicle due to negligence of her boyfriend, who was co-owner of vehicle and also listed as an insured on the policy, was not entitled to UM coverage — Vehicle which was being operated by one of the named insureds could not meet policy definition of “uninsured auto” — Section 627.727(3), which provides that term “uninsured motorist vehicle” shall, subject to terms and conditions of coverage, be deemed to include insured motor vehicle when the liability insurer excludes liability coverage to a nonfamily member whose operation of an insured vehicle results in injuries to the named insured does not compel coverage in instant case in which boyfriend was a named insured
ALLSTATE INDEMNITY COMPANY, Appellant, vs. ILOMISE CHERESTIL, Appellee. 20th Judicial Circuit in and for Lee County. Appeal Case No. 98-2923 AP. Lower Case No. 96-4201 CC. Opinion issued April 7, 1999. Appeal from the County Court for Lee County: James R. Adams, Judge. Counsel: Bonita Kneeland Brown, Tampa, for Appellant. Bruce D. Frankel, Fort Myers, for Appellee.
(PER CURIAM.) This appeal brought by Allstate Indemnity Company (“Allstate”) involves the entry of a final declaratory summary judgment in favor of the insured, Ilomise Cherestil (“Cherestil”), on the issue of uninsured motorist (“UM”) coverage. We reverse.
Cherestil was injured in an accident while a passenger in a vehicle driven by her boyfriend. It is undisputed that the boyfriend was at fault, with no negligence on the part of the other driver. It is further undisputed that Cherestil and her boyfriend were listed as co-buyers and co-owners of the vehicle driven by the boyfriend. In addition, both Cherestil and her boyfriend were listed on the declarations page and insurance card as insureds on the policy issued by Allstate. Cherestil demanded UM benefits pursuant to the policy. Allstate denied coverage and Cherestil filed the underlying lawsuit.
Allstate moved for summary judgment on the grounds that, as a matter of law, Allstate was entitled to a declaratory judgment on the issue of UM coverage. Cherestil filed a memorandum in opposition. Allstate’s motion was denied. To facilitate the appeal on the coverage issue, the parties agreed to the entry of a final declaratory summary judgment in favor of Cherestil as to coverage.
The policy provisions at issue involve the term “uninsured auto” which includes “a vehicle defined as an insured auto under the liability portion of this policy which causes bodily injury to you or a resident relative while being operated by a person other than you or a resident relative.” “You” is defined as “the policyholder named on the declarations page and that policyholder’s resident spouse.” Both Cherestil and her boyfriend were named on the declarations page of the policy as “named insured(s),” and, therefore, each meets the definition of “you” pursuant to the plain language of the policy. Since the term “you” includes both Cherestil and her boyfriend, the insured auto involved in the accident cannot meet the definition of an “uninsured auto” since it was being operated by one of the named insureds (the boyfriend), rather than “by a person other than” a named insured, thus excluding UM coverage.
It does not appear from the answer brief that Cherestil necessarily disagrees that the plain language of the policy excludes UM coverage. Rather, Cherestil primarily argues that Florida Statute §627.727(3)(c) acts to trump the policy language and compel coverage.
Section 627.727(3)(c) provides that the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer excludes liability coverage to a nonfamily member whose operation of an insured vehicle results in injuries to the named insured. Cherestil argues that, since the boyfriend was a nonfamily member to whom liability coverage was excluded, the insured vehicle meets the definition of “uninsured motor vehicle” for the purpose of providing UM coverage. This argument necessarily raises the question as to whether the boyfriend is to be considered “a nonfamily member” as contemplated by the statute, or, rather, “a named insured” as contemplated by the contract of insurance.
In resolving this question, it is important to note that §627.727(3)(c) was created by amendment in 1992 in response to Brixius v. Allstate Ins. Co., 589 So. 2d 236 (Fla. 1991), which held that UM benefits were not available to an insured who was injured while a passenger in her own vehicle, but being driven by an uninsured friend. Travelers Ins. Co. v. Warren, 678 So. 2d 324, 328 (Fla. 1996); Bulone v. United States Auto. Assn., 660 So. 2d 399, 404, fn. 7 (Fla. 2d DCA 1995). The fact pattern in the instant case is significantly different from that in Brixius, in that the vehicle in the instant case was being driven by the boyfriend who was, in fact, an insured on the insurance policy at issue.
Therefore, it cannot be argued that §627.727(3)(c) was created for the purpose of addressing the specific fact pattern arising in the instant case. In addition, §627.727(3) is expressly “subject to the terms and conditions” of UM coverage. Bulone v. United Services Auto. Assn., 660 So. 2d 399 (Fla. 2d DCA 1995). Finally, and perhaps most importantly, the Florida Supreme Court has expressly stated that “Section 627.727(3)(c) only applies where a nonfamily permissive user is driving.” Warren, supra at 328, fn.4 (emphasis added). As a named insured on the policy, the boyfriend cannot possibly be termed as a “permissive user,” and Cherestil’s only response is that the word “permissive” is not in the statute. However, the statute was interpreted by the Florida Supreme Court, not Allstate, as applying only to a “nonfamily permissive user.” Since the boyfriend was not a “permissive user,” it would be inappropriate to find that §627.727(3)(c) acts to trump the plain language of the insurance policy.1
As expressed by the Second District Court of Appeal in Auto Owners Ins. Co. v. Van Gessel, 665 So. 2d 263 (Fla. 2d DCA 1995), until the legislature addresses the specific issue at bar, public policy continues to support the parties’ freedom to contract. Id. at 268. Whether to compel coverage is a matter for the legislature to address, not the courts. Id. Accordingly, the plain language of the policy controls the coverage issue in the case at bar.
We REVERSE and REMAND to the trial court for further proceedings consistent with this opinion. (STARNES, C.J., and GERALD and ROSMAN, JJ., concur.)
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1It is noted that, in entering the final declaratory summary judgment in favor of Cherestil, the trial court did not make any express finding that the statute trumps the policy language. Rather, the trial court entered a general denial of Allstate’s motion for summary judgment, and by stipulation of the parties, judgment on the coverage issue was entered in favor of Cherestil for the sole purpose of facilitating this appeal.
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