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October 20, 2017 by admin

Insurance — Uninsured motorist — Conditions precedent to insured’s action against insurer to collect UM benefits — Waiver — Insurer waived defense that insured failed to comply with condition precedent of exhausting remedies against primary insurer before proceeding against it as excess insurer where defendant failed to plead the defense with sufficient particularity

42
Fla. L. Weekly D2182aTop of Form

Insurance
— Uninsured motorist — Conditions precedent to insured’s action against
insurer to collect UM benefits — Waiver — Insurer waived defense that insured
failed to comply with condition precedent of exhausting remedies against primary
insurer before proceeding against it as excess insurer where defendant failed
to plead the defense with sufficient particularity

AMANDA SCHOECK, Appellant, v.
ALLSTATE INSURANCE COMPANY, Appellee. 2nd District. Case No. 2D16-3161. Opinion
filed October 13, 2017. Appeal from the Circuit Court for Pinellas County;
Bruce Boyer, Judge. Counsel: Wm. Newt Hudson of Law Office of Wm. Newt Hudson,
Tarpon Springs, for Appellant. Kansas R. Gooden of Boyd & Jenerette, PA,
Jacksonville, and Jacqueline M. Bunty of Law Offices of Jacqueline M. Bunty,
Tampa, for Appellee.

(NORTHCUTT, Judge.) The circuit
court ruled that Amanda Schoeck failed to satisfy a condition precedent to her
suit against Allstate Insurance Company, and on that basis it granted summary
judgment to Allstate. We reverse because Allstate waived Schoeck’s alleged
noncompliance with the condition at issue.

In 2009, Schoeck was injured while a
passenger in a vehicle owned and driven by her father. Schoeck alleged in her
complaint that the driver of another vehicle caused the collision in which she
was injured but lacked liability coverage sufficient to fully satisfy her
damages claims. At the time of the accident Schoeck was covered by two
uninsured motorists provisions, under her father’s Geico policy and her
mother’s Allstate policy. The Geico policy provided $20,000 in UM coverage; the
Allstate policy provided $25,000 in UM coverage.

In 2013, Schoeck sued Allstate
seeking UM benefits under its policy; the record before us does not disclose
why Schoeck did not also file suit against Geico at that time. Schoeck alleged
generally that all conditions precedent to maintaining suit against Allstate
had been met or else had been waived. Allstate’s answer did not address that
allegation directly, but “denie[d] the allegations in all Paragraphs pertaining
to this Defendant unless otherwise specifically admitted.”

Allstate eventually moved for summary
judgment, disclosing the existence of the Geico policy and requesting among
other things that the court prioritize the Geico policy and reduce Allstate’s
total excess exposure to $5000. In support, Allstate relied on a statutory
provision providing that insurers may write UM policies limiting an injured
insured’s recovery to the highest UM limits afforded to any vehicle insured
under that policy. See § 627.727(9)(c), Fla. Stat. (2015). Allstate
argued that Schoeck would only be entitled to the highest limit from among all
vehicles covered under both the Geico and Allstate UM policies. Since $25,000
was the highest limit available under the Allstate policy, and since Allstate
was the excess carrier, Allstate asserted that its policy limit should be reduced
by the highest available limit available under the primary Geico coverage,
$20,000.

The circuit court agreed, and it
entered a preliminary order that found the Geico policy primary and the
Allstate policy excess, and that limited Allstate’s maximum liability exposure
to $5000. Schoeck moved for reconsideration, urging that section 627.727(9)(c)
only limits UM recovery to the highest limit applicable to a vehicle covered
under the Allstate policy itself, and that there was no basis for “crediting”
the excess carrier for proceeds owed by a primary carrier. Schoeck also argued
that Allstate had waived any argument relating to the “Other Insurance” clause
because Allstate had not pleaded an affirmative defense seeking to preclude or
diminish recovery in reliance on that clause.

In its reply to the motion for
reconsideration, Allstate for the first time argued that “a closer look” at its
policy suggested that Schoeck had not satisfied a condition precedent contained
in the “Other Insurance” clause — that she must fully exhaust all other
sources of recoverable insurance before suing Allstate. Allstate also
anticipated that the Geico limits were probably unrecoverable due to the
statute of limitation. Allstate asserted that because Schoeck had failed to
timely proceed against the primary Geico benefits, she was therefore precluded
from recovering any excess coverage from Allstate.

The circuit court again agreed with
Allstate and entered a final summary judgment declaring that Schoeck’s claims
against Allstate were barred for failure to meet a condition precedent. The
court specified that “the primary Geico [UM] coverage which was available at
the time of the automobile accident . . . had not been actually paid and is now
unpayable,” and therefore Schoeck would be unable to proceed against Allstate.
The court again found that even had such condition precedent been satisfied,
Allstate’s maximum liability would have been reduced to $5000 to account for
the primary Geico proceeds. Schoeck appealed, and we have jurisdiction. See
Fla. R. App. P. 9.030(b)(1)(A).

The express terms of the Allstate
contract provide that prior to taking action against Allstate, no insured or
injured person may sue “unless there is full compliance with all the terms of
the policy.” Later, the operative language of the UM section provides:

If the
injured person was in, on, getting into or out of a vehicle [that the insured
does] not own which is insured for this coverage under another policy, this
coverage will be excess. . . . [W]hen the injured person is legally entitled to
recover damages in excess of the other policy limit, [Allstate] will pay up to
[the UM] policy limit, [excluding special damages], but only after all other
collectible insurance has been exhausted
.

(Emphasis added.)

We agree with the circuit court’s
order insofar as this contract language was meant to impose a condition
precedent to an action against Allstate. But Allstate waived this defense by
failing to plead the issue with sufficient specificity. Whereas Florida Rule of
Civil Procedure 1.120(c) permits the satisfaction of a condition precedent to
be alleged generally, the rule requires a pleader to deny the
performance or occurrence of a condition precedent “specifically and with
particularity.”

Allstate contends that it
specifically raised the condition precedent in its seventh affirmative defense,
which alleged that “any recovery should be reduced or barred to the extent of
available insurance coverage . . . available to any individual or entity
which may be wholly or partially responsible for the damages
alleged in
connection with the subject matter of the incident described in the Complaint.”
(Emphasis added.) Although this allegation generically evoked other sources of
insurance coverage, the emphasized language limited the defense to coverage
that was available to the instigating tortfeasor or tortfeasors. The defense
did not specifically allege that Schoeck failed to exhaust proceeds available
to her from her father’s Geico policy. Because Allstate failed to plead the
affirmative defense of noncompliance with a condition precedent, it waived the
defense. See Fla. R. Civ. P. 1.140(h)(1). The court therefore erred by
basing its final judgment on that ground.

Because we reverse the summary
judgment due to Allstate’s waiver of the contractual condition precedent, we
need not decide whether Allstate’s position — that Schoeck could not sue until
she exhausted Geico’s benefits — in fact would have barred Schoeck’s recovery
under legal principles governing UM coverage. We note that Allstate apparently
advocates a position that is contrary to the policies underlying the UM
enactments and the caselaw interpreting UM contract language. “[S]ection
627.727 was intended to place the injured party in the same position as he or
she would have been had the tortfeasor been insured.” State Farm Mut. Auto.
Ins. Co. v. Curran
, 135 So. 3d 1071, 1077 (Fla. 2014). “[T]he statute is
not designed ‘for the benefit of insurance companies or motorists who cause
damage to others.’ ” Id. (quoting Young v. Progressive Se. Ins. Co.,
753 So. 2d 80, 83 (Fla. 2000)). “As a creature of statute rather than a matter
for contemplation of the parties in creating insurance policies, the uninsured
motorist protection is not susceptible to the attempts of the insurer to
limit or negate that protection
.” Sommerville v. Allstate Ins. Co.,
65 So. 3d 558, 562 (Fla. 2d DCA 2011) (quoting Gilmore v. St. Paul Fire
& Marine Ins.
, 708 So. 2d 679, 681 (Fla. 1st DCA 1998)). “[C]onditions
or exclusions must be carefully scrutinized first to determine whether the
condition or exclusion unambiguously excludes or limits coverage, and then to
determine, if so, whether enforcement of a specific provision would be contrary
to the purpose of the uninsured motorist statute.” Flores v. Allstate Ins.
Co.
, 819 So. 2d 740, 745 (Fla. 2002).

We also clarify that limiting
Allstate’s maximum exposure to $5000 was error. First, section 627.727(9)(c)
authorizes an insurer to offer a policy restricting an insured’s maximum UM
benefits to the highest limits afforded to any car covered under the policy
itself. In insurance parlance, the statute permits carriers to offer
“unstacked” or “nonstacked” UM options. Section 627.727(9)(c) does not provide
that insurers may credit their excess UM benefits with a primary insurer’s
payouts. Second, the Allstate policy itself provides: “[W]hen the injured
person is legally entitled to recover damages in excess of the [primary] policy
limit, [Allstate] will pay up to [the UM] policy limit . . . .” This language
unambiguously entitles Schoeck to recover up to the $25,000 UM policy limit,
provided that her damages exceed the amount of primary coverage.

Based on the foregoing, we reverse
the final summary judgment and remand for further proceedings consistent with
this opinion.

Reversed and remanded. (LaROSE,
C.J., and SILBERMAN, J., Concur.)

* * *

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