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Amica Mutual Insurance Co. v. Willis

Florida Court of Appeals, Second District

January 17, 2018

AMICA MUTUAL INSURANCE COMPANY, Appellant,
v.
SYLVIA WILLIS, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Hillsborough County; Claudia R. Isom, Judge.

          Douglas M. Fraley of Molhem & Fraley, P.A., Tampa, for Appellant.

          Kristin A. Norse and Stuart C. Markman of Kynes, Markman & Felman, P.A., Tampa; and Anthony T. Martino of Clark & Martino, P.A., Tampa, for Appellee.

          SILBERMAN, Judge.

         In September 2014, Sylvia Willis was walking on a paved pathway in Sun City Center when she was hit by an underinsured golf cart. Her underinsured/uninsured motorist (UM) insurance carrier, Amica Mutual Insurance Company, denied benefits because the golf cart was not an "uninsured motor vehicle" under a policy exclusion. Amica and Willis took the dispute to court, and the court entered final summary judgment in favor of Willis. The court ruled that the exclusion was invalid as against the public policy requiring UM coverage to be reciprocal to its liability coverage. We affirm.

         The insurance policy provides liability coverage to an "insured" which it defines as "[y]ou or any family member for the ownership, maintenance or use of any auto or trailer." It contains an exclusion for vehicles "designed mainly for use off public roads" with an exception for "any non-owned golf cart." Thus, the policy provides liability coverage for certain damages caused by an insured's use of a non-owned golf cart.

         The policy provides corresponding UM coverage for certain damages sustained by an insured or any family member that "arise out of the ownership, maintenance or use of the uninsured motor vehicle." It contains an exclusion for vehicles "[d]esigned mainly for use off public roads while not on public roads." However, unlike the liability portion of the policy, the exclusion does not provide an exception for non-owned golf carts. Thus, the policy excludes UM coverage for damages sustained by an insured that arise out of the use of an uninsured, non-owned golf cart while not on public roads.

         The underlying action was filed by Amica as a declaratory judgment action seeking a ruling regarding coverage. Willis filed a counterclaim seeking entitlement to coverage.[1] Amica maintained that the UM exclusion for vehicles "[d]esigned mainly for use off public roads while not on public roads" applied, and Willis maintained that it was invalid as inconsistent with the policy of the UM statute as set forth in section 627.727, Florida Statutes (2014). Both parties eventually filed motions for summary judgment.

         Willis asserted that the UM exclusion was inconsistent with the statutory intent that policies provide UM coverage that is reciprocal to liability coverage. Willis argued that because her policy provided liability coverage for damages she caused while operating a non-owned golf cart, the UM provision could not exclude coverage for bodily injury she sustained from an uninsured motorist operating a non-owned golf cart. In support of her argument, Willis cited this court's decision in Sommerville v. Allstate Insurance Co., 65 So.3d 558 (Fla. 2d DCA 2011). Amica asserted that the case was controlled by Carguillo v. State Farm Mutual Automobile Insurance Co., 529 So.2d 276 (Fla. 1988).

         The trial court determined that Willis was entitled to UM coverage. Among other things, the court found merit in Willis' argument that, under Sommerville, the UM policy exclusion was invalid because there was no reciprocal limitation on liability coverage. The court entered a final judgment awarding Willis $50, 000 in UM benefits.

         We conclude that the trial court properly relied on Sommerville to determine that the UM exclusion was invalid.[2] The issue of the validity of a UM exclusion is a question of law that this court reviews de novo. Travelers Commercial Ins. Co. v. Harrington, 154 So.3d 1106, 1108 n.2 (Fla. 2014).

          Section 627.727(1) states that "[n]o motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued" unless UM coverage is also provided. Furthermore, "[t]he limits of uninsured motorist coverage shall not be less than the limits of bodily injury liability insurance purchased by the named insured." § 627.727(2). These provisions apply and protect the insured unless the insured rejects them or selects lower limits in writing. § 627.727(1).

         Section 627.727(9) sets forth several limitations that may be included in UM policy provisions. "An insurance policy may contain other general conditions affecting coverage or exclusions on coverage as long as the limitations are unambiguous and 'consistent with the purposes of the UM statute.' " Varro v. Federated Mut. Ins. Co., 854 So.2d 726, 728-29 ...


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