Cohen v. American Home Assur. Co.

367 So. 2d 677
CourtDistrict Court of Appeal of Florida
DecidedFebruary 6, 1979
Docket78-97, 79-92
StatusPublished
Cited by20 cases

This text of 367 So. 2d 677 (Cohen v. American Home Assur. Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen v. American Home Assur. Co., 367 So. 2d 677 (Fla. Ct. App. 1979).

Opinion

367 So.2d 677 (1979)

Wolfie COHEN, Appellant,
v.
AMERICAN HOME ASSURANCE CO., and Travelers Insurance Company, Appellees.

Nos. 78-97, 79-92.

District Court of Appeal of Florida, Third District.

February 6, 1979.
Rehearing Denied March 9, 1979.

*678 Horton, Perse & Ginsberg and Edward A. Perse, Samuel M. Spatzer, Miami, for appellant.

Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O'Hara and Richard A. Sherman, Miami, for appellees.

Before PEARSON, KEHOE and SCHWARTZ, JJ.

KEHOE, Judge.

Appellant, plaintiff below, seeks review of an adverse final order dismissing his complaint for declaratory judgment against his appellee insurer, one of several defendants below. We reverse.

Appellant's complaint for declaratory judgment contained the following pertinent allegations:

"Comes now the plaintiff, WOLFIE COHEN (`COHEN' hereafter), by and through his undersigned counsel, acting under the aegis of the Florida declaratory judgment act, Chapter 86, Florida Statutes, and files this his complaint for declaratory judgment against defendants, TRAVELERS INSURANCE COMPANY (`TRAVELERS' hereafter), RESERVE INSURANCE COMPANY (`RESERVE' hereafter), and AMERICAN HOME ASSURANCE COMPANY (`AMERICAN HOME' hereafter), and as grounds therefor would allege — all allegations of fact being pertinent at all times hereto — that:

"1. Plaintiff/COHEN is sui juris and a citizen and resident of Dade County, Florida.

"2. Defendants, TRAVELERS, RESERVE and AMERICAN HOME are foreign corporations writing automobile liability insurance and other forms of insurance coverage in Florida, and licensed to and doing business in the State of Florida.

"3. Defendants, TRAVELERS, RESERVE and AMERICAN HOME, all deliver or issue for delivery in the State of Florida policies of automobile liability insurance covering liability arising out of ownership, maintenance or use of motor vehicles registered and/or principally garaged in the State of Florida.

"4. On information and belief, some time in late 1975, defendant/TRAVELERS issued for delivery and delivered to plaintiff/COHEN, as named insured, a policy of automobile liability insurance covering liability arising out of the ownership, maintenance or use of motor vehicles. The policy number of the TRAVELERS policy and the exact policy period are unknown to plaintiff/COHEN since he does not possess a copy of the face sheet/schedule page of the policy. However, said policy was in full force and effect at all times pertinent hereto. As discovery proceeds in this matter, plaintiff/COHEN will obtain the necessary information from the defendant/TRAVELERS to support the foregoing allegations and will amend his complaint accordingly.

"5. The defendant/TRAVELERS policy affords automobile liability and uninsured/underinsured motorist coverage to plaintiff/COHEN with policy limits applicable to each coverage of $15,000/30,000 per person/per occurrence. A copy of the policy itself is attached hereto as Exhibit A.

"6. In February 1976, defendant/RESERVE issued for delivery and/or delivered to plaintiff/COHEN, as named insured, its `automobile liability excess indemnity policy' No. 707 15 19 73. The policy period of said policy was March 1, 1976 to March 1, 1977. Such policy provided insurance coverage for excess automobile liability insurance — over and above the underlying limits provided for by the policy issued by defendant/TRAVELERS — to plaintiff/COHEN. In law and in fact the defendant/RESERVE'S policy covers `liability arises out of the ownership, maintenance or use of motor vehicles registered and/or principally garaged in the State of Florida.' The automobile liability excess insurance policy issued by RESERVE has liability limits of $85,000/270,000 per person/per occurrence. Said policy does not on its face afford any uninsured/underinsured motorist coverage to plaintiff/COHEN. A copy of the RESERVE policy is attached hereto as Exhibit B.

*679 "7. In October 1974, defendant/AMERICAN HOME issued for delivery and/or delivered to plaintiff/COHEN, as named insured, its `personal catastrophe excess third party liability policy' No. 258 53 85. The policy period of said policy was October 25, 1974, to October 24, 1977. Such policy provided coverage for excess general liability, including liability arising out of the ownership, maintenance or use of motor vehicles, incurred by the named insured, plaintiff/COHEN. The liability limits of said policy were $2,000,000 `single limit any one occurrence combined personal injury and/or property damage liability in excess of' the amount of underlying insurance available under the terms of the policies issued by TRAVELERS and RESERVE, to wit: a total of $100,000/300,000 per person/per occurrence. The AMERICAN HOME policy thus covered liability arising out of the ownership, maintenance or use of motor vehicles registered and/or principally garaged in the State of Florida. Said policy does not on its face afford uninsured/underinsured motorist coverage to plaintiff/COHEN. A copy of the AMERICAN HOME policy is attached hereto as Exhibit C.

"8. The Florida Uninsured Motorist Statute, Section 627.727, Florida Statutes, in pertinent part, provides:

* * * * * *

"`(1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto in not less than the limits of liability insurance purchased by the named insured for bodily injury, [or such lower limits complying with the company's rating plan as may be selected by the named insured] under provisions filed with and approved by the Department for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom; provided, however, that the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage ... The coverage provided under this section shall be excess over but shall not duplicate the benefits available to an insured ... under any automobile liability ... coverages; ...

* * * * * *

"`(2) For the purpose of this coverage, 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 thereof:

* * * * * *
"`(b) has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage.'

"9. It is apparent that under the law of the State of Florida, and specifically the provisions of Section 627.727, supra, that defendant/RESERVE and defendant/AMERICAN HOME, as issuers of policies of insurance covering liability arising out of the ownership, maintenance, or use of motor vehicles, were obligated to either provide uninsured motorist coverage to the persons covered by their policies, including plaintiff/COHEN, with limits up to and including the liability limits, $85,000/270,000 and $2,000,000 respectively, or to obtain rejection of such coverage from their named insured, plaintiff/COHEN.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

UNLIMITED TURF, LLC v. CP GLOBAL CONSULTING, INC.
District Court of Appeal of Florida, 2023
PLASTIQUIM, S.A. v. ODEBRECHT CONSTRUCTION, INC.
District Court of Appeal of Florida, 2022
IMPERIAL FIRE & CASUALTY INSURANCE COMPANY v. ARIEL ACOSTA
District Court of Appeal of Florida, 2021
Pascual v. Florida Power & Light Co.
911 So. 2d 152 (District Court of Appeal of Florida, 2005)
BISCAYNE INV. GROUP v. Guarantee Management
903 So. 2d 251 (District Court of Appeal of Florida, 2005)
Owens v. Ridley
870 So. 2d 886 (District Court of Appeal of Florida, 2004)
Ferreiro v. Philadelphia Indem. Ins. Co.
816 So. 2d 140 (District Court of Appeal of Florida, 2002)
Isenhour v. Universal Underwriters Insurance
461 S.E.2d 317 (Supreme Court of North Carolina, 1995)
Popham v. State Farm Mutual Insurance
634 A.2d 28 (Court of Appeals of Maryland, 1993)
Feigin v. HOSP. STAFFING SERV., INC.
569 So. 2d 941 (District Court of Appeal of Florida, 1990)
St. Paul Fire & Marine Insurance v. Gilmore
796 P.2d 915 (Court of Appeals of Arizona, 1990)
Ellsworth v. Ins. Co. of North America
508 So. 2d 395 (District Court of Appeal of Florida, 1987)
Continental Ins. Co. v. Howe
488 So. 2d 917 (District Court of Appeal of Florida, 1986)
Granite State Insurance Co. v. Lane
448 So. 2d 1174 (District Court of Appeal of Florida, 1984)
Empire Fire & Marine Insurance Co. v. Solomon
444 So. 2d 1123 (District Court of Appeal of Florida, 1984)
Southern American Ins. Co. v. Dobson
441 So. 2d 1185 (Supreme Court of Louisiana, 1983)
Chicago Ins. Co. v. Dominguez
420 So. 2d 882 (District Court of Appeal of Florida, 1982)
SOUTHERN AMERICAN INS. CO. v. Dobson
415 So. 2d 641 (Louisiana Court of Appeal, 1982)
Decker v. Great American Ins. Co.
392 So. 2d 965 (District Court of Appeal of Florida, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
367 So. 2d 677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-american-home-assur-co-fladistctapp-1979.