Gordon v. Phoenix Insurance Company

242 So. 2d 485, 1970 Fla. App. LEXIS 5373
CourtDistrict Court of Appeal of Florida
DecidedDecember 31, 1970
DocketN-430
StatusPublished
Cited by21 cases

This text of 242 So. 2d 485 (Gordon v. Phoenix Insurance Company) 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
Gordon v. Phoenix Insurance Company, 242 So. 2d 485, 1970 Fla. App. LEXIS 5373 (Fla. Ct. App. 1970).

Opinion

242 So.2d 485 (1970)

Kenneth W. GORDON, Appellant,
v.
The PHOENIX INSURANCE COMPANY, Appellee.

No. N-430.

District Court of Appeal of Florida, First District.

December 31, 1970.

*486 William R. Davenport, Pensacola, for appellant.

William H. Clark, Pensacola, for appellee.

WIGGINTON, Judge.

Plaintiff in the trial court has appealed an adverse declaratory judgment which construes the uninsured motorist provision of a standard automobile liability insurance policy issued to plaintiff by defendant, Phoenix Insurance Company. Appellant contends that the trial court erred in holding that the uninsured motorist provision of the policy held by him fails to provide coverage for the damages he suffered under the facts and circumstances of this case.

The material facts pertinent to the issue presented for decision have been agreed upon and are not in dispute. Appellee Phoenix issued to appellant Gordon its automobile liability insurance policy containing the standard uninsured vehicle provision as required by our existing statutes.[1] While this policy was in full force and effect, Gordon was injured in a vehicular collision resulting from the negligent operation of an automobile owned by James Britan but operated by Sandra Felton Poston. At the time of the collision the owner, Britan, held no automobile liability insurance policy covering his vehicle, but the *487 operator, Poston, was the insured in a policy of automobile liability insurance issued by Commercial Union Insurance Company of New York which contained the limits of coverage required by law.[2] Appellant sued Poston and her insurance carrier for the damages suffered by him and recovered a judgment in excess of the policy limits. Poston's insurance carrier paid to appellant the limits of its policy and received a satisfaction of the judgment recovered in the suit. After concluding his action against Poston, appellant then brought this action against Phoenix seeking to recover the balance of the judgment previously recovered against Poston, claiming entitlement thereto under the uninsured vehicle coverage of his policy with Phoenix. Appellant's sole contention is that since Britan, the owner of the offending vehicle, carried no liability insurance on his automobile at the time of the collision, the uninsured vehicle coverage of the insurance policy held by appellant is applicable and he is entitled to reimbursement from Phoenix under the terms thereof.

The statute which requires automobile liability insurance carriers to include in their policies a provision for uninsured vehicle coverage is as follows:

"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 limits described in § 324.021(7), 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 where any insured named in the policy shall reject the coverage; provided further that, unless the named insured requests such coverage in writing, the coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer."[3]

The foregoing statute requires all automobile liability insurance policies to contain a provision sufficient to indemnify the persons insured under the policy for such damages as they are legally entitled to recover from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom. A literal construction of the statute would seem to indicate that if either the owner or the operator of the offending vehicle who is legally responsible for the damages suffered by the insured is covered by liability insurance, then the uninsured vehicle coverage provided by the policy is inapplicable. The terms "owners" and "operators" contained in the statute are employed alternatively because under the dangerous instrumentality doctrine prevailing in Florida, both the owners and operators of motor vehicles are jointly and severally liable for the damages resulting from the negligent use or operation thereof. The public policy underlying uninsured vehicle coverage in automobile liability insurance policies was enunciated by this court as follows:

"The cited statute requiring that protection against uninsured motorist be provided in all automobile liability insurance policies issued in this state, unless written notice declining such coverage be given by the insured, established the public policy of this state to be that every insured, within the definition of that term as defined in the policy, is entitled to recover under the policy for the damages he or she would have been able to *488 recover against the offending motorist if that motorist had maintained a policy of liability insurance. * * *"[4]

The uninsured vehicle provision contained in the insurance policy sued upon is as follows:

"* * * To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called `bodily injury,' sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; * * *."

The term "uninsured automobile" contained in the above-quoted provision of the policy is defined therein as:

"(a) an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, * * *."

From the foregoing provisions it appears eminently clear that the uninsured vehicle coverage provided by the policy applies solely to vehicles with respect to the ownership, maintenance or use of which there is no liability insurance policy applicable to any person legally responsible for the use of the vehicle. In the case sub judice the facts are undisputed that Poston, the driver of the offending vehicle, was covered by a policy of liability insurance and under the law of this state was legally responsible for the use and operation of the vehicle at the time it caused appellant's injuries. Under these circumstances Britan's vehicle driven by Poston was not an uninsured automobile within the terms and definitions of the policy even though the owner, Britan, carried no liability insurance on the vehicle.

Our research has failed to disclose any decision in Florida passing upon the precise question presented by this appeal. The issue has been litigated, however, in other jurisdictions whose courts have reached the same conclusion as that expressed herein.

In the case of United States Fidelity & Guaranty Company v. Byrum[5]

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Bluebook (online)
242 So. 2d 485, 1970 Fla. App. LEXIS 5373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-phoenix-insurance-company-fladistctapp-1970.