The opinion
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE FARM MUTUAL AUTOMOBILE )
INSURANCE COMPANY, )
)
Appellant, )
)
v. ) Case No. 2D14-1402
)
ADAM SMITH, JAMES and ELIZABETH )
MOTZENBECKER, and CHELSEA )
ACKERMECHT, )
)
Appellees. )
___________________________________ )
Opinion filed June 3, 2016.
Appeal from the Circuit Court for Sarasota
County; Kimberly Carlton Bonner, Judge.
Mark D. Tinker and Charles W. Hall of
Banker Lopez Gassler P.A., St.
Petersburg, for Appellant.
Kerry E. Mack and Jacqulyn Mack of Mack
Law Firm Chartered, Englewood; and
Mark A. Boyle and Amanda K. Anderson
of Boyle, Gentile & Leonard, P.A., Ft.
Myers, for Appellee Adam Smith.
No appearance for remaining Appellees.
SALARIO, Judge.
State Farm Mutual Automobile Insurance Company appeals a final
judgment holding it liable to Adam Smith for $150,000 pursuant to the uninsured
motorist provisions of an automobile insurance policy. Resolution of the appeal hinges
on two legal questions: (1) whether the policy by its terms extends uninsured motorist
coverage to Smith and, if it does not, (2) whether that failure impermissibly limits the
uninsured motorist coverage State Farm was required to provide under section 627.727,
Florida Statutes (2006), the uninsured motor vehicle insurance statute. We answer both
questions in the negative, reverse the judgment of the trial court, and remand for further
proceedings consistent with this opinion.
I.
On July 30, 2006, Smith was injured in a car accident. At the time, he was
driving a Nissan 300 ZX purchased by James and Elizabeth Motzenbecker and titled in
the name of Elizabeth Motzenbecker. The Motzenbeckers gave the car to their
daughter, Chelsea Ackermecht, for her own use. At the time of the accident, Smith was
driving Ackermecht's car, with her permission, while she was a passenger in the vehicle.
The accident happened when Smith attempted a right turn from the left lane and
collided with a car waiting at a red light on the intersecting street.
The Motzenbeckers and Ackermecht were insured by State Farm under a
policy issued to Elizabeth Motzenbecker that extended both liability and uninsured
motorist coverage (the Motzenbecker policy). Smith was insured under the liability and
uninsured motorist provisions of a separate policy that State Farm issued to Smith's
mother (the Smith policy). The Smith policy extended liability coverage to Smith for his
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use of his mother's car as well as for any other car that he used but did not own—
including the car at issue—subject to exceptions that are not applicable here.
In 2007, Smith filed this action against the Motzenbeckers and
Ackermecht on the theory that they negligently failed to maintain the brakes on the car.
The Motzenbeckers and Ackermecht tendered that claim to State Farm under the
liability provisions of the Motzenbecker policy. State Farm filed a declaratory judgment
action alleging that the household exclusion in the Motzenbecker policy excluded
coverage for Smith's claim because Smith was an insured under that policy by virtue of
having been permitted to drive the car.1 The trial court granted summary judgment to
State Farm, and this court affirmed. Motzenbecker v. State Farm Mut. Auto Ins. Co.,
123 So. 3d 600 (Fla. 2d DCA 2013), rev. denied, 143 So. 3d 921 (Fla. 2014).
While the declaratory litigation concerning the Motzenbeckers' and
Ackermecht's entitlement to liability coverage for Smith's claim under the Motzenbecker
policy was ongoing, Ackermecht filed a lawsuit against Smith seeking compensation for
injuries she sustained in the accident on the theory that he negligently operated the
vehicle. Smith tendered Ackermecht's claim to State Farm under the liability provisions
of the Smith policy. State Farm provided Smith with a defense and later paid
Ackermecht the limits of liability under the Smith policy in satisfaction of her claim.
Following State Farm's tender of limits on Ackermecht's claim, Smith
amended his complaint in this action to include a claim against State Farm for uninsured
motorist benefits under the Smith policy. State Farm counterclaimed for a declaration
1
That exclusion provided that the Motzenbecker policy did not provide
coverage for any bodily injury to "any insured or any member of an insured's family
residing in the insured's household."
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that it was not liable because the Motzenbeckers' car was not an uninsured motor
vehicle as defined by the Smith policy and, as a result, Smith by definition was not
entitled to coverage under the uninsured motorist provisions of the Smith policy.
State Farm moved for summary judgment on its counterclaim arguing that
the uninsured motorist provisions of the Smith policy did not extend coverage to Smith
in this case because the Smith policy defined the term "uninsured motor vehicle" to
exclude any motor vehicle "insured under the liability coverage of this policy" and that
the Motzenbecker's car was insured under that coverage because Smith was driving it
at the time of the accident.2 State Farm also asserted that the Motzenbeckers' car was
deemed insured under the liability coverage of the Smith policy because the liability
provisions of that policy had afforded bodily injury liability coverage to Smith for
Ackermecht's claim arising out of Smith's operation of the vehicle. The trial court
disagreed, held that "the claimed exclusion does not apply to [Smith] under the facts of
this case," and denied the motion.
The trial court later entered a final judgment against State Farm on the
counterclaim and set Smith's claims against the Motzenbeckers and Ackermecht for a
jury trial. The jury found liability, apportioned ninety-two percent of the fault to the
Motzenbeckers and Ackermecht and eight percent to Smith, and awarded damages of
$214,860. The damage award was later limited to the Smith policy's limits of $150,000,
and a final judgment was entered. State Farm timely appeals.
2
The only exception to this provision in the policy was for circumstances
where an insured suffered bodily injury while a vehicle was being driven by someone
other than the insured, spouse, or relative. Those circumstances are not present in this
case.
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II.
We now review the trial court's decision that the Smith policy's exclusion
of vehicles insured under the liability provisions of the policy from the definition of
"uninsured motor vehicle" does not apply in this case. State Farm argues that the
exclusion applies under the plain language of the policy, and we agree. Because Smith
also argues, as he did in the trial court, that to the extent this provision applies, it
violates public policy by affording him less uninsured motorist coverage than section
627.727 requires, we address why that issue does not provide an alternative basis for
affirmance. Because the appeal involves issues of contract and statutory construction
decided by summary judgment, our review is de novo. See Motzenbecker, 123 So. 3d
at 602.
A.
We first address the basis upon which the trial court decided the case.
The issue boils down to whether the provision governing vehicles insured under the
liability coverage of the Smith policy unambiguously precludes uninsured motorist
coverage for Smith's injuries. Where the language of an insurance policy is
unambiguous, we are required to interpret it "in accordance with the plain meaning so
as to give effect to the policy as written." Fla. Peninsula Ins. Co. v. Cespedes, 161 So.
3d 581, 584 (Fla. 2d DCA 2014). A provision in a policy is ambiguous, however, when
its language can bear more than one reasonable interpretation—one that grants
coverage and another that limits or denies it. Auto-Owners Ins. Co. v. Anderson, 756
So. 2d 29, 34 (Fla. 2007). If the policy is ambiguous, we construe it in favor of
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coverage. N. Pointe Cas. Ins. Co. v. M & S Tractor Servs., Inc., 62 So. 3d 1281, 1283
(Fla. 2d DCA 2011).
Turning to the provisions at issue here, Section III of the Smith policy is
titled "Uninsured Motor Vehicle." It extends coverage to any insured under the policy
"for damages for bodily injury [the] insured is legally entitled to collect from the owner
or driver of an uninsured motor vehicle." The term "uninsured motor vehicle" is
defined to include any "land motor vehicle the ownership, maintenance, or use of which
is" either uninsured or insured in an amount that is insufficient to cover the claimant's
injuries. However, the Smith policy carves certain categories of vehicles out of this
broad definition—and thus out of the uninsured motorist coverage extended by the
policy—by providing, in relevant part, as follows:
An uninsured motor vehicle does not include a land
motor vehicle:
1. insured under the liability coverage of this policy.
However, any such vehicle will be deemed to be
an uninsured motor vehicle for bodily injury
sustained by you, your spouse, or any relative
while the vehicle is being operated by a person
other than you, your spouse, or any relative.
Whether this language unambiguously precludes coverage depends on
what it means to be "insured under the liability coverage of the policy." As a result, we
must read this provision together with the terms of the policy's liability coverage. See
Cespedes, 161 So. 3d at 584 (explaining that a policy should be "read . . . as a whole"
so as to "give every provision its full meaning" (quoting Washington Nat'l Ins. Corp. v.
Ruderman, 117 So. 3d 943, 948 (Fla. 2013))). Section I of the policy titled "Liability
Coverages" provides that State Farm will "pay damages which an insured becomes
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legally obligated to pay" because of bodily injury or property damage "resulting from the
ownership, maintenance, or use of your car." "Your car" is defined as the car identified
in the policy declarations, in this case a Saturn station wagon owned by Smith's mother.
In addition, the "Liability Coverages" section of the State Farm policy
extends the liability coverage applicable to "your car" "to the use, by an insured, of a
newly acquired car, a temporary substitute car or a non-owned car." A "non-
owned" car is defined, in relevant part, as "a car not owned, registered or leased by" an
insured but in the lawful possession of the insured at the time the insured uses it.
Reading the terms of the liability coverage together with the definition of
uninsured motor vehicle, we conclude that the Smith policy's language is unambiguous
and that the Motzenbeckers' car, when used by Smith, was "insured under the liability
coverage of this policy." The liability provisions of the policy plainly afford coverage for
"your car" when owned, maintained, or operated by an insured as well as for any "non-
owned car" when operated by an insured. The Motzenbeckers' car was a "non-owned
car" and Smith was an insured. As a result, the Motzenbeckers' car was not an
uninsured motor vehicle because it was insured under the policy's liability coverage—
indeed, State Farm paid out its liability limits under that coverage—and Smith was not
entitled to uninsured motorist coverage under the policy's terms. In Nationwide Mut.
Fire Ins. Co. v. Olah, 662 So. 2d 980, 982 (Fla. 2d DCA 1995), this court held that policy
language that was materially identical to the language here was "clear and
unambiguous" and precluded recovery by a passenger in a "non-owned car" driven by
her husband under the uninsured motorist provisions of the husband's policy. Nothing
in the facts of this case or the language of this policy suggests a different result.
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Smith asserts that the policy is ambiguous because the language "a land
motor vehicle . . . insured under the liability coverage of this policy" can reasonably be
read as referring only to the car listed in the policy declarations—i.e., his mother's
Saturn. We disagree. The Smith policy uses the specific term "your car" when it refers
to the car listed in the policy declarations. The language at issue here unambiguously
refers to a broader class of vehicles than the single vehicle listed as "your car" because
the policy also classifies any "non-owned car" driven by an insured as covered under
the liability provision. The Smith policy's use of the indefinite article "a" with the term
"land motor vehicle" as modified only by the restriction that such vehicle be one that is
"insured under the liability coverage of this policy" necessarily refers to any such vehicle
covered by the policy's liability provisions. See generally Retreat at Port of the Islands,
LLC v. Port of the Islands Resort Hotel Condo. Ass'n, 181 So. 3d 531, 533 (Fla. 2d DCA
2015) ("Linguistically, 'a' refers to 'any or each' of a type when used with a subsequent
restrictive modifier." (quoting Webster's Third New Int'l Dictionary 1 (2d ed. 1986))). The
provision cannot mean only the specifically named vehicle under the Smith policy when
that class of motor vehicles covered under the liability coverage of the policy includes
another class of covered vehicles, including the vehicle driven by Smith during the
accident.
Smith also asserts that we should deem the policy ambiguous because it
does not define the phrase "insured under the liability coverage of this policy." That
argument both runs counter to our decision in Olah and ignores settled law that the
absence of a definition for a policy term does not render an otherwise unambiguous
policy term ambiguous. See Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d
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161, 166 (Fla. 2003); see also State Farm Fire & Cas. Ins. Co. v. CTC Dev. Corp., 720
So. 2d 1072, 1076 (Fla. 1998) ("The lack of a definition of an operative term in a policy
does not necessarily render the term ambiguous and in need of interpretation by the
courts.").
Finally, Smith argues that the policy "fails to take into account the
possibility of liability arising from negligent maintenance of a vehicle." This argument is
at odds with the terms of the policy—which expressly extends uninsured motorist
coverage to maintenance claims, but excludes it for certain categories of vehicles—and
is irrelevant to the question of whether the policy is ambiguous. The Smith policy
unambiguously defines the class of vehicles excluded from the definition of uninsured
motor vehicle, and the Motzenbeckers' car, when used by Smith, is so excluded.
B.
Having determined that the policy unambiguously does not provide
uninsured motorist coverage to Smith, we now consider whether its failure to do so runs
afoul of section 627.727. We hold that it does not because the Motzenbeckers' car was
an insured vehicle under the Smith policy when it was used by Smith. On the facts and
arguments presented in this case, the statute does not otherwise require that State
Farm extend uninsured motorist coverage to him.
Although parties to a contract—insurance contracts included—are
generally free to structure a bargain as they see fit, section 627.727 substantially limits
the freedom to contract for uninsured motorist coverage. See Salas v. Liberty Mut. Fire
Ins. Co., 272 So. 2d 1, 5 (Fla. 1972) ("As a creature of statute rather than a matter for
contemplation of the parties in creating insurance policies, the uninsured motorist
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protection is not susceptible to the attempts of the insurer to limit or negate that
protection."). Our supreme court has held that the statute "was enacted to provide relief
to innocent persons who are injured through the negligence of an uninsured motorist"
and, as such, that this protection cannot "be 'whittled away' by exclusions and
exceptions." Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 83 (Fla. 2000) (quoting
Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229, 238 (Fla. 1971)). For that
reason, a policy that provides "less [uninsured motorist] coverage than required by"
section 627.727 is deemed void as against public policy. Id.
Determining whether a policy provision extends less coverage than
required by section 627.727 begins with the language of the statute. See Travelers
Commercial Ins. Co. v. Harrington, 154 So. 3d 1106, 1111 (Fla. 2014) (framing the
issue as whether a policy exclusion "conflicts" with the provisions of the statute). The
statutory mandate for uninsured motorist coverage is contained in the first sentence of
section 627.727(1), which provides as follows:
No motor vehicle liability insurance policy which provides
bodily injury liability coverage shall be delivered or issued for
delivery in this state with respect to any specifically insured
or identified motor vehicle . . . unless uninsured motor
vehicle coverage is provided therein or supplemental thereto
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 . . .
resulting therefrom.
In addition, section 627.727(3)(c) identifies three circumstances in which an insured
motor vehicle will be treated as uninsured for purposes of the statutory mandate to
provide uninsured motorist coverage. Read as a whole, then, the statute requires that a
policy afford uninsured motorist coverage for two categories of claims: (1) claims
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involving uninsured motor vehicles and (2) claims involving insured motor vehicles in
the circumstances the statute identifies. Id.
1.
The first question is thus whether the Motzenbeckers' car was uninsured
or insured within the meaning of the statute. Section 627.727 does not define those
terms. A long line of cases makes clear, however, that a vehicle is deemed insured
under section 627.727 where the policy under which the claim for uninsured motorist
benefits is made extends liability coverage to the insured in connection with the vehicle
in question. See, e.g., Harrington, 154 So. 3d at 1112 (describing a "long line of well-
established precedent" under which a vehicle cannot be treated as "both insured and
uninsured under the same policy"); Smith v. Valley Forge Ins. Co., 591 So. 2d 926, 927
(Fla. 1992) (holding that passenger in insured vehicle was not entitled to benefits under
section 627.727 where the policy excluded coverage for use of vehicle "owned by or
furnished or available for the regular use of you or any family member"). As set forth
above, the Motzenbeckers' car was insured under the liability provisions of the Smith
policy. It is thus properly treated as insured for the purposes of determining whether
section 627.727 required State Farm to provide uninsured motorist coverage to Smith.
The foundational case on this issue is Reid v. State Farm Fire & Cas. Co.,
352 So. 2d 1172 (Fla. 1977). There, the plaintiff was injured while a passenger in a
family car driven by her sister and sought coverage under the liability and uninsured
motorist provisions of a State Farm policy insuring the car. Id. at 1172. State Farm
denied liability coverage based on an exclusion applicable to claims by any insured or
certain family members and denied uninsured motorist coverage based on a policy
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provision that an "uninsured motor vehicle" did not include the insured motor vehicle
identified in the policy. Id. at 1172-73. On conflict review, the supreme court approved
a decision of the Fourth District affirming a summary judgment in State Farm's favor. Id.
at 1174.
The Reid court held that because the vehicle was insured under the
liability provisions of the policy, its definition of "uninsured motor vehicle" to exclude the
insured motor vehicle named in the policy was not prohibited by section 627.727. Id.
That the liability provisions of the policy excluded coverage for the plaintiff's injuries—
and, as a result, that the plaintiff did not receive liability payments—did not alter Reid's
conclusion that the vehicle "is insured and it does not become uninsured because
liability coverage may not be available to a particular individual." Id. at 1173.
Fourteen years later, in Brixius v. Allstate Ins. Co., 589 So. 2d 236, 237
(Fla. 1991), the supreme court held that a policy definition of the term "uninsured motor
vehicle" that excluded "a vehicle defined as an insured auto under the liability portion of
this policy" did not conflict with section 627.727.3 That case involved a passenger
injured in an accident in which her car was driven by an uninsured friend. Id. at 237.
The insurer denied liability coverage because the policy excluded such coverage for
named insureds and denied uninsured motorist coverage because the vehicle was
insured under the policy. Id. The supreme court held that the case was controlled by
Reid and that the statute did not "require [that] uninsured motorist benefits be provided
3
Following Brixius, section 627.727 was amended to include subsection
(3)(c) related to certain exceptions that, as set forth in this opinion, do not require the
application of the uninsured motorist provisions to these facts. See Travelers Ins. Co. v.
Warren, 678 So. 2d 324, 328 (Fla. 1996) (plurality opinion).
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an insured when liability benefits are unavailable because of a valid liability exclusion in
the same policy under which uninsured motorist benefits are sought." Id.
The core holding of these cases is that where a vehicle is insured under
the liability provisions of an automobile insurance policy, it will not simultaneously be
deemed uninsured under section 627.727(1). See also Harrington, 154 So. 3d at 1112;
Smith, 591 So. 2d at 927. This is true even where, as here, the liability provisions of a
policy do not extend coverage to the specific plaintiff and accident at issue under the
given facts. See Harrington, 154 So. 3d at 1112.
This court's decision in Olah shows how these principles apply here. In
Olah, the plaintiff was the personal representative of the estate of a woman who died
while riding in a friend's car driven by the deceased's husband. 662 So. 2d at 981. The
friend had insurance under one policy, and the husband had insurance under a second.
Id. Because the limits of the friend's policy did not satisfy the plaintiff's damages, she
sought coverage under the liability and uninsured motorist provisions of the husband's
policy. Id. The insurer sued for declarations (1) that the policy contained a household
exclusion that excluded coverage for "bodily injury to any Insured or any member of an
Insured's family residing in the same household" and (2) that uninsured motorist
coverage was unavailable because the vehicle was insured under the liability portion of
the husband's policy. Id. The trial court granted summary judgment to the insurer as to
the liability coverage but entered judgment against it under the uninsured motorist
provisions, and the insurer appealed. Id.
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In an opinion authored by then-Judge Quince, this court reversed. Id. at
983. Relying on Reid and Brixius, the court held that the friend's car was insured under
the liability provisions of the husband's policy, explaining as follows:
The [friend's] vehicle was covered under the liability portion
of [the husband's] policy because it was . . . being operated
by [the husband]. However, [the plaintiff] cannot recover
under the liability coverage because she was a member of
the insured's household. Additionally, since the vehicle is
insured under the liability portion of the policy, it cannot be
uninsured under the UM portion of the policy. This type of
situation was addressed by the supreme court in Reid . . . .
Id. at 982 (emphasis added). The court identified other cases where, as here, the
plaintiffs' claims implicated different policies that provided insurance separately to
owners like the Motzenbeckers and drivers like Smith and in which the drivers'
insurance carriers were required to extend uninsured motorist coverage. Id. (discussing
Lee v. State Farm Mut. Auto Ins. Co., 339 So. 2d 670 (Fla. 1976); Deville v. Allstate Ins.
Co., 603 So. 2d 556 (Fla. 3d DCA 1992)). The Olah court found these cases
distinguishable because, as here, "the vehicle [involved in the accident] was not . . .
insured under the liability portion" of the policy directly applicable to the driver. Id.
This reasoning resolves the question of whether the Motzenbeckers' car
was uninsured or insured as to the Smith policy in this case. Like the plaintiff in Olah,
Smith was an insured under two insurance policies—the Motzenbecker policy and the
Smith policy. As in Olah, the Motzenbecker policy was insufficient to respond to Smith's
injuries and the liability provisions of the Smith policy applied to the vehicle but excluded
coverage for Smith's injuries in this particular accident. Like the husband's policy in
Olah, the Smith policy provides that any vehicle "insured under the liability coverage of
this policy" is excluded from the definition of "uninsured motor vehicle." The necessary
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result is that the Motzenbeckers' car is insured under the Smith policy and is therefore
outside the scope of section 627.727(1)'s requirement that State Farm extend uninsured
motorist coverage to Smith. Id. at 982; see also Gares v. Allstate Ins. Co., 365 F.3d
990, 991, 995 (11th Cir. 2004) (determining that an insured under multiple policies was
not entitled to uninsured motorist benefits where "the vehicle involved in the accident is
a covered vehicle under the liability portion of the policies but there is no liability
coverage for the accident due to exclusions" and noting that "Olah is directly on point").
The supreme court has recently cited Olah with approval for the proposition that it has
"historically upheld" policy definitions of the type at issue here against challenge under
section 627.727. Harrington, 154 So. 3d at 1111.4
The dissent's effort to distinguish Olah and its application of Reid and
Brixius is not convincing. It first argues that because the injured party in Olah was a
member of the driver's family, that case necessarily implicated a concern—that the
4
Although the parties have not cited it, we note that in Allstate Insurance
Co. v. Boynton, 486 So. 2d 552, 555 (Fla. 1986)—a case decided between Reid and
Brixius—the supreme court held that a motor vehicle is uninsured within the meaning of
section 627.727(1) where, even though there is an insurance policy that provides
coverage, the coverage in question is not available to the plaintiff. In Boynton, the
plaintiff was an auto mechanic who was injured when he was struck by a car on which a
coworker was working. Id. at 554. After unsuccessfully seeking coverage under
separate insurance policies issued to the vehicle owner and coworker, the plaintiff
sought coverage under the uninsured motorist provisions of his own policy. Id.
Agreeing that the car was uninsured as to the plaintiff, the court distinguished Reid in a
footnote stating that "[t]he present case is distinguishable because it involves separate
policies." Id. at 555 n.5. Boynton is inapplicable here because there was no contention
in that case that the car that injured the plaintiff was also insured under the liability
provisions of the policy under which uninsured motorist benefits were sought.
Additionally, unlike the Smith policy, it does not appear that the plaintiff's policy in
Boynton contained a provision excluding a vehicle insured under its liability provisions
from the definition of uninsured motor vehicle. See Gares, 365 F.3d at 994 ("The lower
court decision [in Boynton], however, indicates that there was no such clause.").
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dissent states is absent here—that extending uninsured motorist coverage "would
effectively nullify" the household exclusion of the Nationwide policy's liability coverage
provisions. The concern is that extending uninsured motorist benefits to a claimant
under the same policy that contains a valid exclusion denying liability coverage to that
claimant reads that exclusion out of the policy; the claimant can receive the benefits the
liability policy denies by making the same claim on the same policy's uninsured motorist
provisions. See Reid, 352 So. 2d at 1174 (stating that this outcome "would completely
nullify the family-household exclusion").
Olah, however, said nothing about this concern and instead relied on the
principle that "an insured vehicle under the liability portion of the policy . . . cannot be
uninsured under the same policy." 662 So. 2d at 981. Moreover, contrary to the
dissent's contention, this case actually presents the same concern about nullifying the
household exclusion. Like the liability provisions of the Nationwide policy in Olah, the
Smith policy contains a household exclusion applicable to claims for bodily injury to "any
insured or any member of an insured's family residing in the insured's household."
Smith was an insured under the liability provisions of the policy and thus, like the
claimant in Olah, is precluded from receiving benefits under them. Granting uninsured
motorist benefits to Smith would negate the Smith policy's liability exclusion just as
granting such benefits to the claimant in Olah would have negated the same liability
exclusion in the Nationwide policy.
The dissent next asserts that Olah can be distinguished because the
claimant in Olah received some benefits under the vehicle owner's liability policy—
although they were insufficient to satisfy her damages—while Smith received no liability
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benefits under the Motzenbecker policy. The dissent does not, however, identify any
legal principle, statute, or reported decision that makes this purported distinction
relevant to the resolution of this case. The question of whether or to what extent
benefits have been made available under some policy other than the one at issue is, on
its face, unrelated to the question of whether a vehicle can be both uninsured and
insured under the single policy at issue. See, e.g., Smith, 591 So. 2d at 927 (applying
principle where insured's liability policy excluded her from coverage and driver was
uninsured); Reid, 352 So. 2d at 1172-73 (applying principle with no indication that
claimant received benefits under another policy). That a vehicle cannot be both insured
and uninsured under the same policy, as the cases hold, is logically true regardless of
whether some other policy responds in whole or in part to a claim.
The dissent finally asserts that Olah is distinguishable because, unlike
Olah, this case involves "two completely separate and distinct theories of negligence,"
the negligent operation theory asserted by Ackermecht against Smith and the negligent
maintenance theory asserted by Smith against Ackermecht and the Motzenbeckers.
Again, the dissent demonstrates only that this is a difference between the two cases,
not that the difference has any analytical consequence. If it is the law that a vehicle
cannot be insured and uninsured under the same policy, and if it is the fact that the
vehicle is insured under that policy (as it is here), then the theory under which the
claimant proceeds is not material; under the law, the vehicle is not uninsured.5
5
Because the dissent does not dispute our construction of the Smith
policy's terms—namely that the Motzenbecker's car, when used by Smith, was insured
under the liability provisions of that policy—it appears to agree with our earlier
conclusion that that the car was insured for purposes of the statute.
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2.
Although the Motzenbeckers' car was not uninsured as to the Smith policy,
we would nonetheless treat it as such if one of the enumerated provisions of section
627.727(3) applies. Smith's response to State Farm's summary judgment motion in the
trial court stated that the case is governed by subsection (3)(c), which applies where the
"liability insurer . . . [e]xcludes liability coverage to a nonfamily member whose
operation of an insured vehicle results in injuries to the named insured or to a relative of
a named insured who is a member of the named insured's household." We do not
agree that subsection (3)(c) applies in this case.
Section 627.727(3)(c) was adopted by the legislature to address the result
in Brixius, in which a vehicle owner was injured in her own car due to the negligence of
the uninsured friend. See Travelers Ins. Co. v. Warren, 678 So. 2d 324, 327 (Fla. 1996)
(plurality opinion). The language the legislature chose is tailored to those facts; it treats
an insured vehicle as uninsured for purposes of "injuries to the named insured or . . .
relative" on account of a non-family member's "operation of an insured vehicle" under
the liability policy. § 627.727; see also Bulone v. United Servs. Auto. Ass'n, 660 So. 2d
399, 404 n.7 (Fla. 2d DCA 1995) (stating that section 627.727(3)(c) "provides uninsured
motorist coverage when a non-family permissive user is not a covered driver for liability
insurance purposes"). Section (3)(c) thus applies to the factual circumstances, present
in Brixius, in which the liability insurer6 excludes coverage when a nonfamily permissive
driver causes injury to a named insured or relative by virtue of his or her operation of the
6
The supreme court has interpreted the term "liability insurer" in section
627.727(3) to mean "an insurer other than the insurer providing UM coverage to the
claimant." Travelers Ins. Co., 154 So. 3d at 1112 (quoting Warren, 678 So. 2d at 327).
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named insured's vehicle. See Harrington, 154 So. 3d at 1112; Warren, 678 So. 2d at
328 (explaining that the statute applies where "a nonfamily permissive user is driving an
insured vehicle and causes injury to a class I insured passenger [,i.e., a named insured
or resident relative]"). It thus guarantees that a named insured, or a relative of a named
insured, who is a passenger in the insured's own car receives uninsured motorist
coverage when a non-family member gets in an accident while operating the vehicle.
This provision does not apply to the circumstances present here in which the familial
driver seeks to recover from the uninsured motorist provision of his own policy for his
own injuries as a driver on account of a separately insured vehicle owner's allegedly
negligent maintenance of the vehicle.
The dissent does not deny that section 627.727(3)(c) is, by its terms,
inapplicable to the facts of this case. It argues that we should apply to it those facts
nonetheless because denying uninsured motorist coverage to a so-called "class I
insured"—a named insured or resident relative of a named insured—like Smith is both
"inequitable" and contrary to the "purpose" of that statute. The dissent posits that the
legislature adopted section 627.727(3)(c) because it was persuaded by Justice Kogan's
dissent in Brixius, which argued that "the test for determining whether a vehicle is
insured for purposes of uninsured motorist coverage, is not whether the owner or
operator of the vehicle has a liability insurance policy, but whether insurance is available
to the injured plaintiff." 589 So. 2d at 239 (quoting Jernigan v. Progressive Am. Ins. Co.,
501 So. 2d 748, 750 (Fla. 5th DCA 1987), disapproved of by Brixius, 589 So. 2d at
238)).
- 19 -
The problem is that any arguable purpose to codify Justice Kogan's
Brixius dissent or to categorically mandate uninsured motorist coverage in all
circumstances involving a class I insured is not the purpose actually conveyed by the
text the legislature voted to adopt. The legislature did not write a statute implementing
Justice Kogan's view that uninsured motorist benefits should be available whenever
liability benefits do not fully compensate a claimant. 7 Nor did it write a statute
invalidating the principle announced in Reid and relied upon in Brixius that a vehicle
may not be both insured and uninsured under the same policy, a principle that
necessarily means that there are some circumstances in which class I insureds will not
be entitled to receive uninsured motorist coverage. It instead wrote a statute that is
tailored to the facts of Brixius—i.e., that addresses the situation in which a named
insured is injured as the result of a non-family member's operation of the named
insured's vehicle—and those are not the facts of this case. The dissent's view may
make a better statute, but writing a better statute is not our role. Absent a statutory
ambiguity, which the dissent concedes is absent, our role is to apply the statute the
legislature drafted without "engaging in speculation as to what . . . the legislators
intended or should have intended." 8 Tropical Coach Line, Inc. v. Carter, 121 So. 2d
779, 782 (Fla. 1960); see also McDade v. State, 154 So. 3d 292, 297 (Fla. 2014).
7
For this reason, the dissent's reliance on Workman v. State, 421 So. 2d
660 (Fla. 3d DCA 1982), a two-paragraph decision of the Third District decided long
before Brixius, Olah, and the legislature's addition of section 627.727(3)(c), is
unpersuasive. Workman rested on the same reasoning as Justice Kogan's dissent in
Brixius, see id. at 660, and that reasoning is not what the legislature followed.
8
The dissent relies on a Senate staff analysis to support its departure from
the text of the statute. Because staff analyses are not written by legislators, may not be
read by legislators, and are not voted on by legislators, there is a question as to whether
use of such a source is appropriate even with respect to an ambiguous statute. See
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III.
The Smith policy's definition of "uninsured motor vehicle" unambiguously
excludes motor vehicles insured under its liability provisions from its scope. Because
the Motzenbeckers' vehicle when driven by Smith was insured under the liability
provisions of the policy, the trial court erred by holding that "the claimed exclusion does
not apply . . . under the facts of this case." Neither this policy's definition nor the mere
fact that this policy's liability coverage was insufficient as applied to specific injuries
impermissibly limits the coverage the uninsured motorist statute otherwise requires. For
these reasons, the final judgment of the trial court is reversed insofar as it determines
that Smith was covered under the uninsured motorist provision of the Smith policy and
the matter is remanded for proceedings consistent with this opinion. This disposition
makes it unnecessary for us to reach State Farm's second point on appeal—that the
trial court erred in allowing certain deposition testimony to be read at trial—and we
therefore decline to do so.
Reversed and remanded.
Kasischke v. State, 991 So. 2d 803, 810 (Fla. 2008) (explaining that the supreme court
"is not unified in its view of the use of legislative staff analyses to determine legislative
intent" and questioning whether "staff analyses can ever assist in determining legislative
intent" (quoting GTC, Inc. v. Edgar, 967 So. 2d 781, 789 n.4 (Fla. 2007))). At all events,
the staff analysis the dissent uses does not support the conclusion it reaches. The staff
analysis explains that the statute requires "an insurer . . . to provide UM coverage to a
UM insured who is injured as a passenger in their own car driven by a nonfamily
member." Fla. S. Comm. on Com., SB 170H (1992) Staff Analysis 9 (June 2, 1992).
That connotes a statute tailored to the facts of Brixius and not one drafted to adopt
Justice Kogan's broader view that a vehicle is deemed uninsured any time other
insurance does not completely compensate a claimant for his or her injuries.
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LUCAS, J., Concurs.
KHOUZAM, J., Dissents with opinion.
KHOUZAM, Judge, Dissenting.
I would affirm. This is a case of first impression in Florida,9 and I believe that
under the unique facts of this case the trial court correctly determined that Smith was entitled
to coverage under the UM portion of his policy. The majority holds that Smith should be
denied coverage because the policy unambiguously states that an "uninsured motor vehicle"
cannot be one that has been insured for liability under that policy. But applying this exclusion
to the facts of this case results in the denial of UM benefits for which Smith paid premiums
simply because he has also paid for liability coverage for Ackermecht—a non-family member
and third party beneficiary of Smith's policy who was found by a jury to be ninety-two percent
at fault for the collision due to negligent maintenance of the vehicle. This result is inequitable
9
Though there are several cases that address exclusions like the one at
issue here, the parties have not cited and I have not been able to locate a single Florida
case applying such an exclusion where a permissive driver who was injured in an
accident sought UM benefits under his own policy after being unable to recover either
under the liability portion of his own policy or under the policy of his nonfamily
passenger, whose family owned the vehicle. This case is also unique in that the driver
is not the only party allegedly at fault in the accident—the passenger was found by a
jury to be ninety-two percent at fault based on a negligent maintenance theory.
- 22 -
and flies in the face of the purpose of UM insurance as set forth in section 627.727, Florida
Statutes (2006).
The overarching purpose of section 627.727 is to ensure coverage for certain
class I insureds10 who are injured or killed due to the negligence of uninsured or underinsured
drivers who are unable to make the injured party whole. Brown v. Progressive Mut. Ins. Co.,
249 So. 2d 429, 430 (Fla. 1971). "The statute is designed for the protection of injured persons,
not for the benefit of insurance companies or motorists who cause damage to others." Id. The
legislature announced this purpose in subsection 627.727(1), which mandates that insurers
must provide UM coverage to any insured who does not expressly reject it and explains this
requirement as follows:
No motor vehicle liability insurance policy which provides
bodily injury liability coverage shall be delivered or issued . .
. unless uninsured motor vehicle coverage is provided
therein or supplemental thereto 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.
§ 627.727(1) (emphasis added).
10
The difference between class I and class II insureds is that
class I insureds are named insureds and resident relatives of
named insureds. Conversely, class II insureds are lawful
occupants of the insured vehicle who are not named
insureds or resident relatives of named insureds. Class II
insureds do not pay for UM coverage under the named
insureds' policy. Rather, class II insureds are essentially
third party beneficiaries to the named insureds' policy.
Travelers Ins. Co. v. Warren, 678 So. 2d 324, 326 n.2 (Fla. 1996).
- 23 -
As the majority acknowledges, precisely because "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.' " Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 83 (Fla. 2000) (quoting
Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229, 238 (Fla.1971)). To that end,
"a provision in a policy providing exceptions and/or exclusions not authorized by the
statute [is] not enforceable." Lee v. State Farm Mut. Auto. Ins. Co., 339 So. 2d 670, 672
(Fla. 2d DCA 1976). Indeed, "[t]his and other Florida courts have consistently held that
restrictions on uninsured motorist coverage are against public policy and void." Id.
It is true that section 627.727 does not squarely address the unique facts of this
case. But subsection 627.727(3)(c) does address an analogous factual scenario:
(3) For the purpose of this [uninsured motorist] 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:
....
(c) Excludes liability coverage to a nonfamily member whose
operation of an insured vehicle results in injuries to the
named insured or to a relative of the named insured who is a
member of the named insured's household.
This subsection was enacted to avoid the inequity created by the Florida Supreme Court's
decision in Brixius v. Allstate Insurance Co., 589 So. 2d 236 (1991). See Travelers Ins. Co. v.
Warren, 678 So. 2d 324, 328 (Fla. 1996).
In Brixius, Jill Brixius was injured in a single-car accident. At the time of
the accident, Brixius was riding as a passenger and her uninsured friend was driving.
Brixius owned the vehicle and it was insured by Allstate. Liability benefits were not
- 24 -
available to Brixius under the liability portion of her policy due to the family-household
exclusion, so Brixius sought benefits under the UM portion of her policy. Allstate denied
her claim based on a provision that was virtually identical to the one at issue in the
instant case. It provided that "an uninsured auto is not a vehicle defined as an insured
auto under the liability portion of this policy." Brixius, 589 So. 2d at 237.
In a four-to-three decision, the Florida Supreme Court approved the denial
of coverage. There were two dissenting opinions. Both posited that the court should
have approved Jernigan v. Progressive American Insurance Co., 501 So. 2d 748, 750
(Fla. 5th DCA 1987), in which the Fifth District held that "the test for determining
whether a vehicle is insured for purposes of uninsured motorist coverage, is not whether
the owner or operator of the vehicle has a liability insurance policy, but whether
insurance is available to the injured plaintiff." Justice Kogan also opined in his dissent
that the exclusion found in Brixius's policy was "so directly contrary to the policies of no-
fault and the uninsured motorist statute as to be void on its face." Brixius, 589 So. 2d
238 (Kogan, J., dissenting). As Justice Kogan explained;
Uninsured motorist coverage is an integral part of this
state's system of no-fault automobile insurance. It is "mop
up" insurance that covers losses occasioned by the fact that
other motorists failed to obtain insurance covering their own
negligence. . . .
The central policy [of UM insurance], in other words,
is at the very heart of the no-fault concept. Injured parties
are discouraged from clogging the courts with minor traffic-
injury cases; and they simultaneously are given a swift, sure
method of covering their own losses. No-fault itself is
undermined precisely to the extent that these policies are
undercut. I can only conclude that the majority opinion
unnecessarily undercuts these policies and, hence, the
foundations of no-fault insurance itself.
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Id.
Apparently finding the dissenting opinions persuasive, the legislature
amended the UM statute in 1992 to include section 627.727(3)(c). See Ch. 92-318, §
79, at 3148-49, Laws of Fla. The staff analysis stated that the amendment was meant
to address the issue in Brixius, effectively superseding the majority opinion and allowing
for UM coverage in future scenarios like Brixius's:
Coverage was denied since liability benefits were not
available to Brixius because under the policy, liability
coverage did not apply for bodily injury to the name[d]
insured or any household relative of the name[d] insured.
This is a "family exclusion clause" that is intended to prevent
a collusive [lawsuit] among family members. In this case the
UM coverage was denied because the policy issued to
Brixius further stated that an ["uninsured auto"] was not a
vehicle defined as an insured auto under the liability portion
of the policy.
The bill redefines "uninsured motor vehicle" to include
an insured motor vehicle when the liability insurer has
denied liability coverage to a nonfamily member whose
operation of an insured vehicle results in injuries to the
named insured or relatives. Therefore, an insurer would be
required to provide UM coverage to a UM insured who is
injured as a passenger in their own car driven by a nonfamily
member.
Fla. S. Comm. on Com., SB 170H (1992) Staff Analysis 8-9 (June 2, 1992).
Even though section (3)(c) does not address the specific factual scenario
presented in the instant case, the Brixius opinion viewed in light of the subsequent statutory
amendment does suggest that the exclusion in Smith's policy is an inappropriate limitation on
UM coverage. The underlying purpose of the amendment was "to avoid the inequity of
denying benefits to a class I insured who had paid for the liability coverage to protect
permissive users and had also paid for UM coverage." Warren, 678 So. 2d at 328. The
- 26 -
exclusion at issue in Brixius was essentially identical to the one at issue here, and applying it
to the facts of this case will likewise result in the complete denial of coverage to a class I
insured who cannot recover either under the liability portion of his own policy or from the
un/underinsured nonfamily tortfeasor. Here, the underinsured nonfamily passenger/owner
negligently maintained the vehicle and the driver seeks UM benefits under his own policy. In
Brixius, the nonfamily uninsured permissive driver was the tortfeasor and the passenger/owner
sought UM coverage under her own policy. I see no meaningful difference between applying
the exclusion to the facts of Brixius and the facts presented in this case. In both cases, the
class I insureds should not be denied UM benefits for which they have paid premiums; such a
result is inequitable and undermines the policy behind UM insurance. Indeed, without the
exclusion, the Nissan clearly qualified as an uninsured motor vehicle because Smith had been
denied coverage under the Motzenbecker policy:
UNINSURED MOTOR VEHICLE─COVERAGES U and U3
We will pay damages for bodily injury an insured is
legally entitled to collect from the owner or driver of an
uninsured motor vehicle. The bodily injury must be
sustained by an insured and must be caused by accident
arising out of the operation, maintenance or use of an
uninsured motor vehicle.
....
Uninsured Motor Vehicle─means:
1. a land motor vehicle, the ownership, maintenance, or use
of which is:
....
b. insured, self-insured or bonded for bodily injury liability at
the time of the accident; but
....
(3) the insuring company or self-insurer denies coverage[.]
- 27 -
(Last two emphases added.) Accordingly, under the unique circumstances of this case,
the trial court was correct in finding that Smith was entitled to UM coverage.
In arriving at the contrary conclusion, the majority relies on the Florida
Supreme Court's decisions in Travelers Commercial Insurance Co. v. Harrington, 154
So. 3d 1106 (Fla. 2014); Travelers Insurance Co. v. Warren, 678 So. 2d 324 (Fla.
1996); and Reid v. State Farm Fire & Causality Co., 352 So. 2d 1172 (Fla. 1977); as
well as this court's decision in Nationwide Mutual Fire Ins. Co. v. Olah, 662 So. 2d 980
(Fla. 2d DCA 1995). While at first blush these cases appear to support the denial of
coverage in this case, they are factually distinguishable.
In Harrington, Crystal Harrington was injured in a single-car accident. At
the time of the crash, Joey Williams—a non-family member—was driving and
Harrington was a passenger. The car was owned by Harrington's father and insured by
Travelers. Williams had a policy with Nationwide. Harrington recovered the liability limit
of $50,000 under the Nationwide policy as well as the liability limit of $100,000 under
the Travelers policy. Williams was also covered under the liability portion of the
Travelers policy. Because Harrington's damages exceeded the payments she received
under the two policies, she sought UM coverage from Travelers. Travelers denied
coverage under a "family vehicle exclusion," which stated that an uninsured vehicle did
not include any vehicle:
Owned by or furnished or available for the regular use of you
or a "family member" unless it is a "your covered auto" to
which Coverage A of the policy applies and bodily injury
liability coverage is excluded for any person other than you
or any "family member" for damages sustained in the
accident by you or any "family member[.]"
- 28 -
Harrington, 154 So. 3d at 1108-09 (alteration in original). The supreme court
determined that this exclusion did not conflict with subsection (3)(c) because the liability
portion of the policy did not exclude non-family members and because subsection (3)(c)
does not "stack UM coverage on top of liability coverage under a single policy." Id. at
1113 (quoting Warren, 678 So. 2d at 328).
In Warren, Dianna Lynn Warren and her friend Celeste Chancey Bryant
were killed in a single-car accident. At the time of the accident, Bryant was driving and
Warren was a passenger. The car was owned by Bryant's father and insured by
Travelers. Warren's estate alleged that her wrongful death was caused by Bryant's
negligent operation of the vehicle and/or negligent maintenance of the car, ultimately
settling for the liability limit of $50,000. The estate then claimed entitlement to UM
coverage under the same policy. Travelers denied coverage based on a provision
providing that "your car" (the car insured under the policy) was not an uninsured vehicle.
The supreme court determined that this exclusion did not conflict with section 627.272,
specifically explaining that "section 627.727(3)(c) did not stack UM coverage on top of
liability coverage under a single policy." Warren, 678 So. 2d at 328. The supreme court
emphasized that to do so would effectively raise the limit of liability coverage for class II
insureds, a result that the court did not believe the legislature intended. Id.
The holdings in Harrington and Warren do not apply here for several
reasons. In both of these cases, the exclusions at issue were different and significantly
narrower than the exclusion at issue here, which purports to exclude any vehicle
insured under the liability portion of the policy. See Harrington, 154 So. 3d at 1108
(addressing a "family vehicle exclusion"); Warren, 678 So. 2d at 326 (addressing
- 29 -
provision providing that "your car," the car insured under the policy, was not an
uninsured vehicle). But perhaps more importantly, both Harrington and Warren sought
to stack UM coverage in addition to bodily injury coverage under the same policy for the
same loss. Stacking is inappropriate because it would effectively raise a policy's liability
limits. Warren, 678 So. 2d at 328. Here, however, Smith has not recovered any
benefits for his own injuries, so it is clear that he is not seeking to stack UM coverage on
top of bodily injury coverage under the same policy for the same loss. I would also note
that Warren was a class II insured, whereas Smith is a class I insured. It is particularly
problematic for UM coverage to be completely denied to a class I insured because he or
she has paid for that coverage. And finally, the concern that the limits of liability
coverage would be effectively and inappropriately raised is not implicated here because
Smith has not recovered under the liability portion of his policy.
In Reid, Dawn Marie Reid was injured in a car accident while a passenger
in her father's car. Her sister was driving. The vehicle was insured by State Farm.
Reid sought coverage under the liability and UM portions of the State Farm policy. She
was denied liability coverage based on a family-household exclusion because the
alleged tortfeasor was her sister and they resided in the same household. She was
denied UM coverage based on an exclusion providing that an uninsured vehicle could
not be the vehicle defined in the policy as the insured vehicle because the vehicle at
issue was the family car listed as insured under the policy. It was in this narrow context
that the supreme court determined that an insured vehicle "does not become uninsured
because liability coverage may not be available to a particular individual." Reid, 352 So.
2d at 1173.
- 30 -
Reid is distinguishable from the instant case because Smith was not
driving the vehicle explicitly listed as insured under his policy. Indeed, the court made
clear that the facts of the case made it an exception to the general rule "that an insurer
may not limit the applicability of uninsured motorist protection." Id. Additionally, an
important factor in the supreme court's decision in Reid was that Reid's sister, a family
member who lived in the same household, was driving at the time of the accident. The
supreme court stated that to allow recovery under the UM portion of the policy under
these circumstances "would completely nullify the family-household exclusion," a valid
type of exclusion intended to prevent collusive lawsuits between family members. Id. at
1173-74.
In Olah, Daniel Lattanzio was driving a vehicle owned by Theodore and
Margaret Simon, and the Simons and Aileen Lattanzio were passengers. Due to Mr.
Lattanzio's negligent operation of the vehicle, it struck a vehicle occupied by Mr. and
Mrs. Born, and all of the occupants of both vehicles were killed. The vehicle that Mr.
Lattanzio had been driving was covered under the Simons' policy with Allstate.
Lattanzio also had a policy on his own vehicles with Nationwide. Olah, 662 So. 2d at
981.
After the decedents' estates made various claims against these two
policies, Allstate paid its liability limits of $100,000 to Lynn Olah, on behalf of the Estate
of Ms. Lattanzio, and Nationwide tendered its liability limits of $300,000 to the Simon
and Born estates. The estate then sought payment under the liability as well as UM
portions of the Nationwide policy. The estate's claim under the liability portion of the
Nationwide policy was rejected because Ms. Lattanzio was a member of Mr. Lattanzio's
- 31 -
household. The issue in Olah was whether the estate could recover under the UM
portion of the Nationwide policy. Id.
This court held that the estate was not entitled to UM coverage under the
Nationwide policy because it provided that an uninsured vehicle does not include "any
motor vehicle insured under the liability coverage of this policy," and the Simon vehicle
was covered under the liability portion of the Nationwide policy because Lattanzio had
been driving it. Id. at 982. The court explained that the exclusion was "clear and
unambiguous." Id. The Olah court noted the Brixius opinion and the later amendment
to section 627.727(3), concluding that the amendment was not applicable because "it
affects claims invoking nonfamily tortfeasors." See Olah, 662 So. 2d at 982 n.3.
Olah is distinguishable from the instant case because Ms. Lattanzio was
killed in an accident caused by her family member's negligent driving. Like in Reid, to
allow Ms. Lattanzio to recover UM benefits under this circumstance would effectively
nullify the family-household exclusion. In this case, the family-household exclusion
found in Smith's policy is not implicated because Smith and Ackermecht are not family
members or members of the same household—a scenario much like that presented in
Brixius. Another significant difference between Olah and the instant case is that the
estate recovered $100,000 under the Allstate policy whereas Smith has not recovered
anything under either his policy or the Motzenbecker policy. This complete denial of
coverage makes the facts of this case more akin to those in Brixius as opposed to those
in Olah.
A final point that distinguishes the instant case from Harrington, Warren,
Reid, and Olah is that those cases each involved a single negligent party. Here, on the
- 32 -
other hand, Ackermecht recovered from the Smith policy claiming that Smith had
negligently operated the vehicle, but Smith sought to recover under the Motzenbecker
policy as well as the UM portion of his policy claiming that Ackermecht had negligently
maintained the vehicle. He was unable to recover anything under this theory. The fact
that Ackermecht and Smith sought recovery under two completely separate and distinct
theories of negligence is an additional reason that allowing Smith to recover UM
benefits under the facts of this case would not constitute improper stacking.
In my view, the facts presented in State Farm Mutual Automobile
Insurance Co. v. Workman, 421 So. 2d 660 (Fla. 3d DCA 1982), are more like those of
the instant case than any of the other cases addressed thus far.11 In Workman, Naomi
Workman was killed while driving a car owned by Kenneth Willis, a non-family member
who was riding as a passenger at the time of the accident. Workman's estate recovered
liability coverage under Willis's insurance policy with Allstate, but the limits of that policy
were less than Workman's own UM coverage with State Farm. Workman's estate
sought UM coverage under the State Farm policy, claiming that Willis was negligent.
State Farm denied coverage based on a policy provision essentially identical to the one
at issue in this case which excluded UM coverage for vehicles insured under the liability
portion of the policy. Despite the fact that Workman had been afforded liability
coverage for her liability while operating a nonowned vehicle, the Third District
determined that UM benefits must be available to Workman's estate. The court
reasoned "that the focus of our inquiry should be whether the injury for which a claim is
11
Interestingly, the Harrington, Warren, and Olah decisions failed to
mention Workman.
- 33 -
made is covered by liability insurance, rather than a general inquiry into whether some
kind of insurance covered, for some purposes, the automobile involved in the accident."
Id. at 660. The court noted that Reid was "distinguishable in that it involved a family-
household exclusion, not applicable here." Workman, 421 So. 2d at 661 n.1.
I agree with the Workman court's analysis, and I believe that it should be
applied to the instant case. Both cases involve a permissive driver's claim for UM
coverage under his or her own insurance policy where a non-family member
passenger's negligence allegedly contributed to an accident. Despite a provision in
Workman's policy excluding UM coverage for a vehicle insured under the liability portion
of the policy, the Workman court held that UM coverage was appropriate. I would hold
that coverage is similarly appropriate in this case. Indeed, Workman had already
recovered under Willis's policy whereas Smith could not recover under the
Motzenbecker policy at all—so the equities weigh even more heavily in favor of
coverage under the facts presented here.
Accordingly, I conclude that applying the exclusion in Smith's policy under
the facts of this case is contrary to the purpose of UM insurance and Smith should be
entitled to UM coverage. I respectfully request that the legislature clarify section
627.727 to address factual scenarios like this one so that this inequity will not be
repeated.
- 34 -