FLORIDA LAW WEEKLY

Named Insured Can Reject UM for All

VOLUME 39, NUMBER 43

CASES FROM THE WEEK OF OCTOBER 24, 2014

SUPREME COURT HOLDS FAMILY VEHICLE EXCLUSION FOR UM BENEFITS DOES NOT CONFLICT WITH §627.727(3)–ADDITIONALLY, WHERE NAMED INSURED PROPERLY REJECTS STACKING COVERAGE, IT APPLIES TO ALL INSUREDS.

Travelers Commercial Insurance Co. v. Harrington, 39 Fla. Law Weekly S647 (Fla. October 23, 2014):

A woman was injured in a single car accident while riding as a passenger in a car owned by her father and driven with the permission by a non-family member. Her mother was the named insured on the policy which insured three vehicles, and provided non-stacked UM coverage for her daughter, her mother, and her father. The driver had his own liability policy, but the policy at issue also defined him as an insured for liability purposes.

After collecting the liability limits from both the driver’s policy and the passenger’s policy (covering the driver), the plaintiff sought under-insured benefits. However, the policy contained a family vehicle exclusion. It provided that an uninsured vehicle does not include any vehicle owned by a family member, unless it is your covered auto, and bodily injury coverage is excluded for any person other than you or any family member, for damages sustained in the accident by you or the family member.

The insurer denied the claims for UM stacking benefits. However, on summary judgment, the trial court found the exclusion was invalid, both because it conflicted with §627.727(3)(b) and (c), and because the waiver executed by the plaintiff’s mother electing non-stacked coverage did not apply to the plaintiff, because she had not “knowingly accepted” the limitations of the policy.

The Supreme Court reversed. It explained how the original enactment of the law creating UM coverage only applied to completely uninsured vehicles, but in 1973, the legislature created a subsection applying to under-insured tortfeasors as well.

Pursuant to the section at issue, §627.727(3)(b), an uninsured motorist vehicle is deemed to include an insured motor vehicle when the liability insurer has provided limits of bodily injury for its insured, which is less than the total damages sustained by the person legally entitled to recover damages.

While this section provides that under-insured vehicles shall be considered uninsured for purposes of UM coverage, it also provides that the term “uninsured motor vehicle” is subject to the terms and conditions of such coverage.

Because in this case, the terms and conditions of the policy expressly and unambiguously excluded the vehicle in question, the family vehicle exclusion did not conflict with §627.727(3)(b) because the statute clearly states that the term uninsured motor vehicle is subject to the terms and conditions of the policy.

The family vehicle exclusion also did not conflict with subsection (3)(c), because the liability policy did not exclude coverage for non-family members. Rather, the policy, consistent with the purposes of that subsection, covered any person driving with permission, so the court found there was no conflict.

The supreme court also answered the second certified question, and held that when the named insured and purchaser of the policy expressly elected non-stacking UM coverage, even though the “claiming” insured did not expressly make the non-stacking election, the election by the named insured was still binding on behalf of all the insureds under the policy.

To hold otherwise would in turn allow any insured under the policy other than the named insured who signed the waiver to collect stacked benefits. Not only would that put additional insureds in a better position than the named insured giving them a benefit they did not pay for, but it would also prevent the insurer from receiving the reduced liability risk that they bargained for.

NO MERIT TO HOSPITAL’S CLAIM THAT LANGUAGE IN THE ALJ’S ORDER CLOSING THE CASE WAS ANYTHING MORE THAN THAT AFTER PLAINTIFFS CHOSE TO PURSUE TOR REMEDIES OER NICA QUESTION REGARDING AUTHORITY TO REQUIRE APPOINTMENT OF GUARDIAN RESTS WITH THE CIRCUIT COURT.

Palms West Hospital v. D.W. and R.W., 39 Fla. Law Weekly D2164 (Fla. 4th DCA October 15, 2014):

The ALJ found that Palms West failed to give proper NICA notice and then entered an order permitting the parents and their child to either accept the NICA benefits or to pursue a medical malpractice suit. Palms West did not appeal the finding of improper notice.

Instead, the hospital contended that the ALJ had no jurisdiction to allow the parents to make an election of remedies and to reject the child’s NICA benefits. The order challenged specific language where the ALJ said in the event the plaintiffs filed an election of remedies declining the benefits, the case would be dismissed.

The Fourth District held that language was nothing more than a statement that if an election of remedies was made rejecting the NICA benefits, the file would be closed. Whether there was an appropriate waiver of benefits and whether a guardian has to be appointed are matters to be litigated in the context of a circuit court medical malpractice case.

COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN PERMITTING POST-SETTLEMENT DISCOVERY – A SETTLEMENT BARS DISCOVERY REGARDING SETTLED MATTERS NO LONGER AT ISSUE IN THE LITIGATION – THE PROPER COURSE IS FOR THE COURT TO RESOLVE THE DISPUTE REGARDING THE VALIDITY OF THE AGREEMENT BEFORE RULING ON THE REQUEST FOR DISCOVERY.

Jilco, Inc. v. MRG of South Florida, Inc., 39 Fla. Law Weekly D2171 (Fla. 4th DCA October 15, 2014):

A PARTY SEEKING RELIEF FROM ADMISSIONS IS NOT REQUIRED TO FILE AFFIDAVITS BEFORE THE COURT HEARS THE REQUEST.

United Automobile Insurance Co. v. West Hollywood Pain, 39 Fla. Law Weekly D2178 (Fla. 4th DCA October 13, 2014):

Plaintiff sued the insurer in county court seeking payment of PIP benefits as the assignee of United’s insured. Along with the complaint, West Hollywood served requests for admissions which included requests that United essentially agreed to liability. United inadvertently filed a response to the admissions a few weeks late, but promptly moved for relief. On the same day, it filed its answer to the complaint denying that the expenses were reasonable, necessary and related.

One year later, West Hollywood moved for summary judgment. The trial court refused to grant United relief from the technical admission of liability, finding that mere inadvertence was insufficient. Subsequently, the trial court struck an affidavit that United filed opposing summary judgment, and granted West Hollywood summary judgment.

Rule 1.370 does not require a showing of excusable neglect to permit relief from a technical admission. If an adverse party is not prejudiced, relief may be granted for mere inadvertence. The liberal standard of the rule favors resolution on the merits.

In this case, the circuit court correctly recognized that it was an abuse of discretion to deny a motion for technical admissions where it is contrary to the true facts of the case, and where the opposing party has not shown prejudice.

Still, the court affirmed because United had not yet filed its affidavit opposing summary judgment when the motion for relief was heard. That is not a requirement. While the court relied on Ellison, which prohibits a party by its own affidavit to boldly repudiate previous deposition testimony so as to create a jury issue, Ellison does not apply to technical admissions under Rule 1.370.

COURT UPHELD AWARD OF §57.105 FEES.

Nordt v. Nordt, 39 Fla. Law Weekly D2184 (Fla. 3rd DCA October 15, 2014):

A former husband and his attorney brought an appeal that presented no justiciable question and was on its face devoid of merit. After the court in a concurring opinion reminded litigants and attorneys of the Rules of Professional Conduct Rule 4-3.1 (meritorious claims and contentions) and 4-3.3 (candor towards the tribunal), the court found the award of attorney’s fees proper in the face of the baseless appeal.

Judge Rothenberg noted she was writing a concurring opinion, not only because of the frivolousness of the claim, but specifically because of counsel’s lack of candor to the court, and his failure to admit to the err of his argument and failure to apologize when confronted by his omission of the “clear, unequivocal, and dispositive evidence contrary to his position” before the court.