Chalk One Up for the Uninsured/Underinsured Motorist Insurance Policy Owner in Florida
In Diaz-Hernandez v. State Farm Fire and Casualty Company (Fla. Law Weekly D1046; May 27, 2009), the Third District Court of Appeals of the State of Florida recently held that a provision in State Farm’s policy for uninsured motorist’s coverage was against the public policy of the Florida Uninsured Motorists (UM) Statute, section 627.727. The policy provision at issue required that State Farm’s insured file any lawsuit against both the uninsured motorist and State Farm.
In Diaz-Hernandez, the Insured filed a lawsuit against State Farm, seeking to recover UM benefits for injuries sustained in an automobile collision with an uninsured motorist. The complaint did not name the uninsured motorist as the second defendant. State Farm attempted to “get out” of the law suit by arguing that the lawsuit should be dismissed because Diaz failed to name both State Farm and the uninsured motorist as joint defendants. The trial court granted State Farm’s motion to dismiss with prejudice and Diaz-Hernandez appealed, arguing that the provision in the UM policy, which required him to join the uninsured motorist in his claim against State Farm, is against the public policy of Florida’s Uninsured Motorists (UM) statute.
The Diaz-Hernandez Appellate Court noted that State Farm’s policy added “an additional burden upon the Insured by requiring the Insured to join the uninsured motorist in the Insured’s contractual action against State Farm for UM coverage.” In reaching its decision, the Diaz-Hernandez Court relied on the Florida Supreme Court’s holding in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So. 2d 229, 233-34, 238 (Fla. 1971) which stated in part:
The public policy of the uninsured motorist statute . . . is to provide uniform and specific insurance benefits to members of the public to cover damages for bodily injury caused by the negligence of insolvent or uninsured motorists and such statutorily fixed and prescribed protection is not reducible by insurers’ policy exclusions and exceptions. . . .
. . . .
[The uninsured motorist statute] was enacted to provide relief to innocent persons who are injured through the negligence of an uninsured motorist; it is not to be “whittled away” by exclusions and exceptions.
The Diaz-Hernandez Court agreed with the Insured and stated that the “additional burden [Statefarm’s policy provision] places upon the Insured violates the clear policy articulated in Armstrong v. Allstate Ins. Co., 712 So. 2d 788 (Fla. 2d DCA 1998), that the purpose of the UM coverage is to protect the injured motorist, not to benefit the UM carrier or the uninsured motorist.” The policy provision at issue was found to be void because it violated public policy.
The Florida Statute for UM coverage requires that any motor vehicle liability insurance policy which provides bodily insurance liability coverage must provide the Insured with the opportunity to also obtain UM coverage. However, the Insured need not actually purchase this type of coverage. To protect themselves from a future problem, insurance companies will require that the insured named in the policy make a written rejection of the coverage on behalf of all the insureds under the policy if the Insured decides not to obtain UM coverage. This written rejection will also provide proof that UM coverage was offered to the Insured in compliance with Florida Statute 627.727 (1).
It has been our observation that many drivers in Florida do not have UM/UIM coverage through their automobile insurance companies. In fact, we have also observed that many individuals are not even aware that such coverage is available nor do not understand the purpose of UM/UIM coverage, most likely because the motor vehicle insurance companies do not generally “push” this type of coverage. Such individuals sign the rejection form discussed above and that’s the “end of it” as far as uninsured motorists coverage is concerned.
Florida is also a state where thousands of drivers do not carry bodily insurance coverage or they carry the minimum coverage required, generally $10,000.00 per individual or $20,000.00 per accident. UM/UIM coverage provides an additional way for drivers to obtain benefits should they have the misfortune to be in an accident involving an uninsured or underinsured motorist.
It must be emphasized, however, that just because the Insured has UM/UIM coverage under his/her automobile policy does not mean that the Insurance Company is going to write a “blank check” to the Insured for asserted UM/UIM benefits. In fact, where an insured seeks to recover UM/UIM motorist benefits from its insurance carrier, the UM/UIM insurance carrier and its Insured are adversaries. As the Diaz-Hernandez Court stated, “in a UM claim the insured must prove that she is legally entitled to recover from the owner or operator of the uninsured or underinsured vehicle. Just as she would in a suit against the tortfeasor, the insured bears the entire burden to prove that her claimed damages were reasonable, necessary, and related to the accident.” Diaz-Hernandez quoting USAA Cas. Ins. Co. v. Shelton, 932 So. 2d, 605, 608 (Fla. 2d DCA 2006).
If you are injured in an automobile accident, we would recommend that you consult with an attorney of your choosing to determine your rights in seeking benefits through the other driver’s bodily liability insurance, providing that other driver has such insurance, and/or through your own UM/UIM insurance, should you have such insurance.
