Third District Court of Appeal State of Florida
Opinion filed March 30, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-1455 Lower Tribunal No. 18-4414 ________________
Marvin White, Appellant,
vs.
Ascendant Commercial Insurance, Inc., et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Lourdes Simon, Judge.
Wasson & Associates, Chartered, and Annabel C. Majewski; and Hevia Law Firm, and Anthony Carlos Hevia, for appellant.
Alexander C. Annunziato, for appellee Ascendant Commercial Insurance Inc.
Before LINDSEY, HENDON and LOBREE, JJ.
HENDON, J. Marvin White (“White”) appeals from a final summary judgment in favor
of his employer’s uninsured motorist (“UM”) insurance carrier, Ascendant
Commercial Insurance, Inc. (“Ascendant”). We affirm.
White was injured in an accident with a Miami-Dade County School
Board (“School Board”) bus while riding as a passenger in his employer’s
work vehicle. He subsequently sued both the School Board and his
employer’s liability carrier, Ascendant. White settled with the School Board
for $175,000.00, and the School Board was dismissed with prejudice.
Subsequently, White sought to collect UM benefits from Ascendant.
On Ascendant’s motion for summary judgment, White asserted the School
Board is self-insured, is statutorily classified as an “uninsured” or
“underinsured” tortfeasor, and UM benefits are available. The trial court
rejected that argument and determined the School Board was fully insured,
not self-insured, and as the School Board’s policy provided a limit of liability
for single occurrence claims up to $200,000.00, White failed to exhaust those
limits. The trial court concluded that, as a result, White cannot seek
additional damages via Ascendant’s UM coverage, which is triggered by a
tortfeasor’s underinsurance or lack of insurance. The trial court granted
summary judgment for Ascendant. White appeals.
2 Our review of an order granting summary judgment is de novo, as is
our review of the trial court's interpretation of an insurance policy to
determine coverage as a matter of law. World Fin. Grp., LLC v. Progressive
Select Ins. Co., 300 So. 3d 1220, 1222 (Fla. 3d DCA 2020).
Discussion
We first address White’s argument that the School Board is a self-
insured government entity and as such is classified as uninsured or
underinsured pursuant to section 627.727(3), Florida Statutes (2020),
thereby making UM benefits available. Florida’s uninsured motorist statute,
section 627.727(3), provides the circumstances under which a vehicle is
considered “uninsured,” even when the vehicle is actually insured. An
“uninsured motor vehicle” shall be deemed to include an insured motor
vehicle when the liability insurer: “. . . (b) has provided limits of bodily injury
liability for its insured which are less than the total damages sustained by the
person legally entitled to recover damages.” Id. Statutory uninsured or
underinsured motorist coverage is meant to compensate the insured for a
deficiency in the tortfeasor's coverage. Allstate Ins. Co. v. Marotta, 125 So.
3d 956, 962 (Fla. 4th DCA 2013) (citing Dewberry v. Auto-Owners Ins. Co.,
363 So. 2d 1077, 1081 (Fla. 1978)); see also Young v. Progressive Se. Ins.
Co., 753 So. 2d 80, 84 (Fla. 2000) (determining that a person or entity who
3 is a “self-insurer” is not a “liability insurer,” and concluding that Florida's
uninsured motorist statute treats a motorist who is self-insured as an
uninsured motorist).
The School Board, however, regularly pays premiums to United
Educators Insurance, A Reciprocal Risk Retention Group, for coverage that
provides a combined limit of liability of $500,000.00 for each occurrence, a
$500,000.00 annual aggregate, and a retained limit of $200,000.00 for any
one occurrence. Even if the School Board retains a portion of the overall
risk, this self-retention limit does not constitute self-insurance. See Zeichner
v. City of Lauderhill, 732 So. 2d 1109, 1113 (Fla. 4th DCA 1999) (holding
that city's $75,000 retained limit did not render it a self-insurer). The School
Board’s policy plainly indicates that the School Board is not self-insured, and
consequently is not “uninsured” pursuant to section 627.727(3). Because
the School Board was obligated to pay judgments and settlements up to
$200,000.00, White had up to $200,000.00 in available coverage through the
School Board.
Ascendant’s policy states that uninsured motorist benefits are payable
only when the tortfeasor’s insurance coverage has been exhausted through
the payment of judgments or settlements. The Young case did not eliminate
the exhaustion requirement, and White’s settlement did not exhaust the
4 School Board’s liability coverage limit. Ultimately, UM coverage exists solely
to protect claimants who, because of a lack of insurance or not enough
insurance, cannot be made whole. 1 See Young, 753 So. 2d at 86 (“The
critical question in determining whether a motorist is uninsured or
underinsured is whether the tortfeasor possesses insurance that will make
the injured party whole.”). In the present case, White failed on motion for
summary judgment to demonstrate that the School Board is uninsured or
underinsured. See also Allstate Ins. Co. v. Boynton, 486 So. 2d 552, 557
(Fla.1986) (noting that in making a “claim against his UM carrier instead of
suing the tortfeasor,” the insured “has a policy prerequisite, namely, proof
that the tortfeasor is uninsured”). Because the School Board’s insurance
policy provides a liability limit of $200,000.00, and White did not exhaust
benefits under that policy by settling for less than the policy limits, we agree
with the trial court that UM coverage was not triggered. See §627.727(3),
Fla. Stat. (2020).
1 The record on appeal is silent as to whether White’s damages exceeded the settlement amount. See Neff v. Prop. & Cas. Ins. Co. of Hartford, 133 So. 3d 530, 532 (Fla. 2d DCA 2013) (permitting a direct action but requiring the insured to show that she was entitled to UM coverage based on showing her damages exceeded the amount available to her under the tortfeasor's liability policy).
5 White next asserts that his settlement with the School Board was not
the final determination of his damages. He argues that a jury should first
determine his total damages, and only then can the court make a
determination whether the School Board is underinsured, and trigger UM
coverage. We disagree.
An injured insured may bring a direct action against his own uninsured
motorist carrier without first resolving a claim against the tortfeasor.2 See,
e.g., Woodall v. Travelers Indem. Co., 699 So. 2d 1361, 1363 (Fla. 1997).
However, in bringing a direct action against an uninsured motorist carrier,
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Third District Court of Appeal State of Florida
Opinion filed March 30, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-1455 Lower Tribunal No. 18-4414 ________________
Marvin White, Appellant,
vs.
Ascendant Commercial Insurance, Inc., et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Lourdes Simon, Judge.
Wasson & Associates, Chartered, and Annabel C. Majewski; and Hevia Law Firm, and Anthony Carlos Hevia, for appellant.
Alexander C. Annunziato, for appellee Ascendant Commercial Insurance Inc.
Before LINDSEY, HENDON and LOBREE, JJ.
HENDON, J. Marvin White (“White”) appeals from a final summary judgment in favor
of his employer’s uninsured motorist (“UM”) insurance carrier, Ascendant
Commercial Insurance, Inc. (“Ascendant”). We affirm.
White was injured in an accident with a Miami-Dade County School
Board (“School Board”) bus while riding as a passenger in his employer’s
work vehicle. He subsequently sued both the School Board and his
employer’s liability carrier, Ascendant. White settled with the School Board
for $175,000.00, and the School Board was dismissed with prejudice.
Subsequently, White sought to collect UM benefits from Ascendant.
On Ascendant’s motion for summary judgment, White asserted the School
Board is self-insured, is statutorily classified as an “uninsured” or
“underinsured” tortfeasor, and UM benefits are available. The trial court
rejected that argument and determined the School Board was fully insured,
not self-insured, and as the School Board’s policy provided a limit of liability
for single occurrence claims up to $200,000.00, White failed to exhaust those
limits. The trial court concluded that, as a result, White cannot seek
additional damages via Ascendant’s UM coverage, which is triggered by a
tortfeasor’s underinsurance or lack of insurance. The trial court granted
summary judgment for Ascendant. White appeals.
2 Our review of an order granting summary judgment is de novo, as is
our review of the trial court's interpretation of an insurance policy to
determine coverage as a matter of law. World Fin. Grp., LLC v. Progressive
Select Ins. Co., 300 So. 3d 1220, 1222 (Fla. 3d DCA 2020).
Discussion
We first address White’s argument that the School Board is a self-
insured government entity and as such is classified as uninsured or
underinsured pursuant to section 627.727(3), Florida Statutes (2020),
thereby making UM benefits available. Florida’s uninsured motorist statute,
section 627.727(3), provides the circumstances under which a vehicle is
considered “uninsured,” even when the vehicle is actually insured. An
“uninsured motor vehicle” shall be deemed to include an insured motor
vehicle when the liability insurer: “. . . (b) has provided limits of bodily injury
liability for its insured which are less than the total damages sustained by the
person legally entitled to recover damages.” Id. Statutory uninsured or
underinsured motorist coverage is meant to compensate the insured for a
deficiency in the tortfeasor's coverage. Allstate Ins. Co. v. Marotta, 125 So.
3d 956, 962 (Fla. 4th DCA 2013) (citing Dewberry v. Auto-Owners Ins. Co.,
363 So. 2d 1077, 1081 (Fla. 1978)); see also Young v. Progressive Se. Ins.
Co., 753 So. 2d 80, 84 (Fla. 2000) (determining that a person or entity who
3 is a “self-insurer” is not a “liability insurer,” and concluding that Florida's
uninsured motorist statute treats a motorist who is self-insured as an
uninsured motorist).
The School Board, however, regularly pays premiums to United
Educators Insurance, A Reciprocal Risk Retention Group, for coverage that
provides a combined limit of liability of $500,000.00 for each occurrence, a
$500,000.00 annual aggregate, and a retained limit of $200,000.00 for any
one occurrence. Even if the School Board retains a portion of the overall
risk, this self-retention limit does not constitute self-insurance. See Zeichner
v. City of Lauderhill, 732 So. 2d 1109, 1113 (Fla. 4th DCA 1999) (holding
that city's $75,000 retained limit did not render it a self-insurer). The School
Board’s policy plainly indicates that the School Board is not self-insured, and
consequently is not “uninsured” pursuant to section 627.727(3). Because
the School Board was obligated to pay judgments and settlements up to
$200,000.00, White had up to $200,000.00 in available coverage through the
School Board.
Ascendant’s policy states that uninsured motorist benefits are payable
only when the tortfeasor’s insurance coverage has been exhausted through
the payment of judgments or settlements. The Young case did not eliminate
the exhaustion requirement, and White’s settlement did not exhaust the
4 School Board’s liability coverage limit. Ultimately, UM coverage exists solely
to protect claimants who, because of a lack of insurance or not enough
insurance, cannot be made whole. 1 See Young, 753 So. 2d at 86 (“The
critical question in determining whether a motorist is uninsured or
underinsured is whether the tortfeasor possesses insurance that will make
the injured party whole.”). In the present case, White failed on motion for
summary judgment to demonstrate that the School Board is uninsured or
underinsured. See also Allstate Ins. Co. v. Boynton, 486 So. 2d 552, 557
(Fla.1986) (noting that in making a “claim against his UM carrier instead of
suing the tortfeasor,” the insured “has a policy prerequisite, namely, proof
that the tortfeasor is uninsured”). Because the School Board’s insurance
policy provides a liability limit of $200,000.00, and White did not exhaust
benefits under that policy by settling for less than the policy limits, we agree
with the trial court that UM coverage was not triggered. See §627.727(3),
Fla. Stat. (2020).
1 The record on appeal is silent as to whether White’s damages exceeded the settlement amount. See Neff v. Prop. & Cas. Ins. Co. of Hartford, 133 So. 3d 530, 532 (Fla. 2d DCA 2013) (permitting a direct action but requiring the insured to show that she was entitled to UM coverage based on showing her damages exceeded the amount available to her under the tortfeasor's liability policy).
5 White next asserts that his settlement with the School Board was not
the final determination of his damages. He argues that a jury should first
determine his total damages, and only then can the court make a
determination whether the School Board is underinsured, and trigger UM
coverage. We disagree.
An injured insured may bring a direct action against his own uninsured
motorist carrier without first resolving a claim against the tortfeasor.2 See,
e.g., Woodall v. Travelers Indem. Co., 699 So. 2d 1361, 1363 (Fla. 1997).
However, in bringing a direct action against an uninsured motorist carrier,
the insured must first demonstrate his entitlement to UM coverage on the
basis that the tortfeasor is an uninsured or underinsured motorist. Neff, 133
So. 3d at 532. “[N]o [UM-coverage] coverage exists if the offending motorist
is not actually un- or underinsured.” Id. (quoting Vigilant Ins. Co. v. Kelps,
372 So. 2d 207, 208 (Fla. 3d DCA 1979) (emphasis added)). Contrary to
White’s assertion, it is the trial court, not a jury, which makes the initial
determination as a matter of law whether the tortfeasor possesses insurance
or is uninsured or underinsured. See Vigilant, 372 So. 2d at 208 (holding it
2 Ascendant’s insurance policy language does not impose a condition precedent to filing suit.
6 is the trial court that must first determine the insurance status of the
tortfeasor). “The insured status of the vehicle. . . goes to the existence of
coverage, which only the court has the power to resolve.” Id. at 209; see also
Bradley v. Gov't Emps. Ins. Co., 460 So. 2d 981, 981 (Fla. 3d DCA 1984)
(“In deciding whether the plaintiff-appellant was entitled to uninsured
motorist coverage under the GEICO policy, the trial court, not the arbitrators,
was required to determine whether the uninsured motorist policy applied to
the case at hand.”). White’s argument that only after a jury determination of
damages can the court determine the insurance status of the School Board
would overturn the trial court’s proper function to make the initial
determination of law whether UM coverage is available.
Based on the above analysis, we affirm the trial court’s final summary
judgment in favor of Ascendant.
Affirmed.