42
Fla. L. Weekly D2652aTop of Form

Insurance
— Uninsured motorist — Collector or antique vehicle policy that restricts
coverage requires insurer to provide uninsured motorist coverage for accidents
not involving the collector vehicle unless insurer has obtained insured’s
written consent on an approved form selecting limitations on uninsured motorist
coverage — Conflict certified

LOUIS PHILIP LENTINI, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF MICHAEL E. LENTINI, JR., Appellant, v. AMERICAN
SOUTHERN HOME INSURANCE COMPANY, Appellee. 5th District. Case No. 5D17-326.
Opinion filed December 15, 2017. Appeal from the Circuit Court for Hernando County,
Richard Tombrink, Jr., Judge. Counsel: John N. Bogdanoff, of The Carlyle
Appellate Law Firm, The Villages, for Appellant. Maureen G. Pearcy and Andrew
E. Grigsby, of Hinshaw & Culbertson LLP, Coral Gables, for Appellee.

(PER CURIAM.) The issue presented in
this appeal is whether a collector vehicle insurance policy that restricts
coverage requires an insurer to provide uninsured motorist coverage for
accidents not involving the collector vehicle. Michael Lentini purchased a
collector vehicle insurance policy from American Southern Home Insurance
Company for his 1992 Chevrolet Corvette. The policy included $300,000 in
coverage for bodily injury and property damage and $300,000 in stacked
uninsured motorist coverage. The premium for the policy was $416 per year, $58
of which was for the uninsured motorist coverage. In 2015, Lentini was involved
in a fatal accident while riding his motorcycle. His estate sought uninsured
motorist coverage for the accident under the collector vehicle policy. American
Southern denied the claim.

Lentini’s estate filed suit. In
response, American Southern asserted that it was not required to provide
uninsured motorist coverage because Lentini was not occupying the insured
collector vehicle when the accident occurred. Specifically, the collector
vehicle policy contained several limitations on the use of the collector
vehicle and excluded uninsured motorist coverage “for bodily injury sustained .
. . [b]y an insured while occupying, or when struck by, any motor vehicle owned
by that insured which is not insured for this coverage under this policy.” In
addition, the definition of an “insured” under the policy endorsement specified
that it applied to Lentini while occupying the “covered auto.” The policy also
required Lentini to own a principal means of transportation insured by a
separate policy; if he did not, then no coverage would apply to his collector
vehicle.

Both parties moved for summary
judgment. American Southern relied on Martin v. St. Paul Fire & Marine
Insurance Co., 670 So. 2d 997, 998 (Fla. 2d DCA 1996), where the court held
that section 627.727, Florida Statutes (1992), does “not require a specialty
insurance policy covering only an antique automobile with restricted highway
usage to provide uninsured motorist coverage for accidents not involving the
antique.” American Southern argued that it was not required to provide
uninsured motorist coverage for the accident because of the special nature of
the collector vehicle and the language of the insurance policy. It also pointed
out that Lentini’s policy had a reduced premium because the coverage was
limited; only specific “collector” vehicles qualified for such coverage; the
coverage limited the use of the vehicle; and the specific policy language
limited the liability coverage by restricting the definition of an “insured.”
The estate countered that Martin was wrongly decided, in contravention
of both section 627.727, Florida Statutes (2015), and Florida Supreme Court
precedent interpreting its provisions.

The trial court opined that Martin
appeared to conflict with section 627.727 but concluded that it was bound to
follow Martin because it was factually analogous to the instant case. See
State v. Washington, 114 So. 3d 182, 185 (Fla. 3d DCA 2012) (“While a lower
court is free to disagree and to express its disagreement with an appellate
court ruling, it is duty-bound to follow it.”). The court entered final summary
judgment in favor of American Southern. This appeal followed.

Section 627.727, Florida Statutes,
governs “[m]otor vehicle insurance; uninsured and underinsured vehicle
coverage; [and] insolvent insurer protection.” It provides, in relevant part:

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 registered or
principally garaged in this state 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. However, the coverage required under this
section is not applicable when, or to the extent that, an insured named in the
policy makes a written rejection of the coverage on behalf of all insureds
under the policy.

§ 627.727(1), Fla. Stat. (2015). The
statute delineates specific limitations that insurers may place on uninsured
motorist coverage, which include:

(a) The
coverage provided as to two or more motor vehicles shall not be added together
to determine the limit of insurance coverage available to an injured person for
any one accident, except as provided in paragraph (c).

(b) If at
the time of the accident the injured person is occupying a motor vehicle, the
uninsured motorist coverage available to her or him is the coverage available
as to that motor vehicle.

(c) If the
injured person is occupying a motor vehicle which is not owned by her or him or
by a family member residing with her or him, the injured person is entitled to
the highest limits of uninsured motorist coverage afforded for any one vehicle
as to which she or he is a named insured or insured family member. Such
coverage shall be excess over the coverage on the vehicle the injured person is
occupying.

(d) The
uninsured motorist coverage provided by the policy does not apply to the named
insured or family members residing in her or his household who are injured
while occupying any vehicle owned by such insureds for which uninsured motorist
coverage was not purchased.

(e) If, at
the time of the accident the injured person is not occupying a motor vehicle,
she or he is entitled to select any one limit of uninsured motorist coverage
for any one vehicle afforded by a policy under which she or he is insured as a
named insured or as an insured resident of the named insured’s household.

See id. § 627.727(9)(a)-(e). In order to limit coverage, however,
the insurer must obtain the insured’s written consent on an approved form
selecting the limitations on uninsured motorist coverage. Id. §
627.727(1), (9). The parties agree that American Southern did not secure
Lentini’s consent to any of these limitations in this case.

The Florida Supreme Court has
concluded that uninsured motorist coverage follows a class I insured,1 not the insured vehicle:

Whenever
bodily injury is inflicted upon named insured . . . by the negligence of an
uninsured motorist, under whatever conditions, locations, or circumstances, any
of such insureds happen to be in at the time, they are covered by uninsured
motorist liability insurance issued pursuant to requirements of Section
627.0851.[2] They may be pedestrians at the time
of such injury, they may be riding in motor vehicles of others or in public
conveyances and they may occupy motor vehicles (including Honda motorcycles)
owned by but which are not “insured automobiles” of [the] named insured.

Mullis v. State Farm Mut. Auto. Ins.
Co., 252 So. 2d 229, 237-38 (Fla.
1971).

The Court subsequently explained
that an insurer may limit uninsured motorist coverage but can only do so if it
satisfies “the statutorily-mandated requirement of notice to the insured and
obtain[s] a knowing acceptance of the limited coverage.” Gov’t Emps. Ins.
Co. v. Douglas, 654 So. 2d 118, 120 (Fla. 1995). Without compliance with
the statutory exceptions found in section 627.727, an insured is entitled to
uninsured motorist coverage. Id. at 120-21; see also Young v.
Progressive Se. Ins. Co., 753 So. 2d 80, 83 (Fla. 2000) (“[P]rovisions in
uninsured motorist policies that provide less coverage than required by the
statute are void as contrary to public policy.”).

In Martin, the Second
District concluded section 627.727 does not apply to antique vehicle policies.
670 So. 2d at 1000-01. The court found that while public policy strongly favors
requiring uninsured motorist coverage, “the legislature has never intended to
mandate class I, family-style uninsured motorist coverage in such a specialty
policy.” Id. at 999. The court distinguished Mullis inasmuch as
it dealt with “family coverage,” and noted that “such broad uninsured motorist
coverage has never been legislatively required for motorcycles or other specialty
recreational vehicles.” Id. at 1001. Several policy concerns influenced
the court’s decision: an opposite result would increase the cost of coverage on
specialty policies; the increased premiums would lead consumers to reject
uninsured motorist coverage on antique car policies; and requiring expansive
coverage that essentially duplicated family automobile coverage would “force
the legislature to amend this statute on yet another occasion in its
never-ending efforts to provide cost-effective UM coverage for Florida
residents.” Id.

While the concerns raised by the Martin
court are understandable, those concerns are more appropriately addressed by
the Legislature. Nothing in section 627.727 excludes collector or antique
vehicle insurance policies from its application. To the contrary, section
627.727 explicitly states that “[n]o motor vehicle liability insurance
policy . . . shall be delivered or issued for delivery in this state . . .
unless uninsured motor vehicle coverage is provided therein.” § 627.727(1),
Fla. Stat. (2015) (emphasis added).3 The only exceptions to this rule are
if the “insured named in the policy makes a written rejection of the coverage,”
or if the insurer complies with the statutory mandates for limiting uninsured
motorist coverage in section 627.727(9)(a)-(e). Id. § 627.727(1), (9).
Here, Lentini did not reject uninsured motorist coverage; instead, he selected
stacked uninsured motorist coverage under the collector vehicle policy.
Moreover, although American Southern could have obtained Lentini’s informed
consent to limit uninsured motorist coverage while occupying a vehicle for
which uninsured motorist coverage was not purchased, see id. §
627.727(9)(d), it is undisputed that it made no attempt to do so in this case.

Mullis and its progeny counsel that uninsured motorist coverage
follows the class I insured, not the vehicle. 252 So. 2d at 237-38. As explained
in Douglas, “if the policy exclusion is valid despite noncompliance with
the statute, the provision of section 627.727(9)(d) is rendered meaningless.”
654 So. 2d at 120-21. This is not to say that insurance companies cannot limit
uninsured motorist coverage in collector or antique vehicle policies. It simply
means that in order to do so, the insurer must comply with the statutory
mandates of section 627.727(9).

Accordingly, we reverse final
summary judgment in favor of American Southern and remand for further
proceedings consistent with this opinion. In doing so, we certify conflict with
Martin v. St. Paul Fire & Marine Insurance Co., 670 So. 2d 997, 998
(Fla. 2d DCA 1996).

REVERSED AND REMANDED. CONFLICT
CERTIFIED. (COHEN, C.J., EISNAUGLE, J., and EGAN, R., Associate Judge, concur.)

__________________

1There are two types of insureds
under automobile insurance policies: class I and class II. “[C]lass I insureds
are named insureds and resident relatives of named insureds.” Travelers
Commercial Ins. Co. v. Harrington, 154 So. 3d 1106, 1109 n.3 (Fla. 2014)
(quoting Travelers Ins. Co. v. Warren, 678 So. 2d 324, 326 n.2 (Fla.
1996)). “Class II insureds are all other lawful occupants of an insured vehicle
who are not the named insureds or a resident relative of the named insured;
essentially, they are ‘third party beneficiaries to the named insureds’
policy.’ ” Id. (quoting Warren, 678 So. 2d at 326 n.2). Class I
insureds are entitled to the full benefits of uninsured motorist coverage. See
Alamo Rent-A-Car, Inc. v. Hayward, 858 So. 2d 1238, 1241 (Fla. 5th DCA
2003). Here, Lentini was a class I insured.

2Mullis was decided before section 627.0851 was renumbered as
section 627.727. See § 627.0851, Fla. Stat. (2015).

3For this reason, the Martin
court’s conclusion that uninsured motorist coverage as delineated in section
627.727 does not apply to antique vehicle policies is untenable. The statute
specifically states that no vehicle insurance policy shall issue without
uninsured motorist coverage. § 627.727(1), Fla. Stat. (2015). While it would
seem logical that the full benefits of uninsured motorist coverage would not
apply to a specialty policy based on the reduced premiums and limited use of
the vehicle, it falls upon the insurer to obtain the insured’s written informed
consent to such policy exclusions under section 627.727(9). Thus, the Martin
court’s fear that applying the mandates of section 627.727 to an antique
vehicle policy would “force the legislature to amend this statute on yet
another occasion” is unpersuasive. See 670 So. 2d at 1001.

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