43
Fla. L. Weekly D161bTop of Form

Insurance
— Uninsured motorist — Coverage — Trial court did not err in finding that
insured was entitled to UM coverage for injuries sustained when she was struck
by an underinsured golf cart while walking on paved pathway, despite UM
exclusion for vehicles designed “mainly for use off public roads while not on
public roads,” where policy provided liability coverage for certain damages
caused by insured’s use of non-owned golf cart — Public policy requires UM
coverage to be reciprocal to liability coverage

AMICA MUTUAL INSURANCE COMPANY,
Appellant, v. SYLVIA WILLIS, Appellee. 2nd District. Case No. 2D16-2319.
Opinion filed January 17, 2018. Appeal from the Circuit Court for Hillsborough
County; Claudia R. Isom, Judge. Counsel: 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 (Fla. 2d DCA 2003) (quoting Flores v. Allstate Ins. Co.,
819 So. 2d 740, 745 (Fla. 2002)).

UM coverage was intended to enable
an insured to receive the same recovery that would have been available had the
tortfeasor been covered by an automobile liability policy that complied with
the Financial Responsibility Law (FRL). Salas v. Liberty Mut. Fire Ins. Co.,
272 So. 2d 1, 3 (Fla. 1972); Mullis v. State Farm Auto. Ins. Co., 252 So.
2d 229, 236 (Fla. 1971). Stated another way, UM coverage is intended to provide
the reciprocal of liability coverage. Flores, 819 So. 2d at 744; Mullis,
252 So. 2d at 237-38.

“As a creature of statute rather
than a matter of 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.” Salas, 272 So. 2d at 5. “It
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.” Mullis, 252 So. 2d at 238; see also Flores,
819 So. 2d at 745; Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 83
(Fla. 2000).

In Sommerville, this court
applied these general principles to determine that a UM exclusion for persons
occupying rented autos was invalid. 65 So. 3d at 563. The insurance policy at
issue provided both liability and UM coverage to “[a]nyone ‘occupying’ a
covered ‘auto.’ ” Id. at 561. While the policy provided liability
coverage for injuries the insured caused while operating a rented auto, it
excluded UM coverage for injuries the insured sustained while occupying a
rented auto. Id.

This court concluded that the UM
exclusion was inconsistent with the policy of the UM statute by defining
“covered autos” more narrowly than in the liability provision. Id. at
563. The court recognized that section 627.727(9) of the UM statute authorized
certain limitations on coverage but explained that section did not provide for
the exclusion of particular insured vehicles. 65 So. 3d at 562.

As in Sommerville, the
insurance policy in this case contains a UM limitation that excludes particular
vehicles. The policy provides liability coverage for injuries Willis causes
while operating a non-owned golf cart, but it excludes UM coverage for injuries
she sustains from an uninsured motorist operating a non-owned golf cart.
However, section 627.727(9) does not provide for the exclusion of particular
uninsured vehicles. By failing to provide Willis UM coverage that is reciprocal
to its liability coverage, the UM exclusion is inconsistent with the policy of
the UM statute. See also Mullis, 252 So. 2d at 231, 238 (holding
invalid a UM exclusion for “bodily injury to an insured while occupying or
through being struck by a land motor vehicle owned by the named insured or any
resident of the same household, if such vehicle is not an ‘insured automobile’
”).

Amica argues that the UM exclusion
does not violate the intent of the UM statute because the FRL does not require
liability insurance for a golf cart. See § 324.021(1), Fla. Stat. (2014)
(defining “[m]otor vehicle” for purposes of the FRL). Thus, the exclusion of
golf carts from UM coverage would not reduce UM coverage below that which would
have been available if the tortfeasor had liability insurance that complied
with the FRL. In support of this argument, Amica cites Carguillo, 529
So. 2d 276.

In Carguillo, the supreme
court upheld a decision finding that coverage was precluded by a UM exclusion
for vehicles “designed for use mainly off public roads except while on public
roads.” 529 So. 2d at 277. The Carguillo court recognized that the UM
statute was intended to enable an insured to receive “at least the same
amount of protection” that would have been available had the tortfeasor been
covered by a policy that complied with the FRL. Id. at 278. However, the
FRL did not require the tortfeasor to maintain liability insurance on the
uninsured motor vehicle, which was an offroad motorcycle, because it did not
meet the definition of a “motor vehicle” under the law. Id. Therefore,
the UM exclusion did not reduce the UM coverage below that which would have
been available under the FRL. Id.

At first glance, it would appear
that Carguillo controls because it addressed the validity of a UM
exclusion virtually indistinguishable from that in this case. However, the Carguillo
analysis involved circumstances different from the particular facts of this
case. In Carguillo, there is no suggestion that the insured actually had
liability coverage for vehicles that are used on public roads even though they
are designed for use mainly off public roads. Thus, Carguillo did not
address the validity of a UM exclusion that reduced UM coverage below the
policy’s liability coverage.

We are not convinced that an
exclusion that leaves in place the minimum UM coverage required by the FRL is
sufficient to satisfy the intent of the UM statute when the insured purchases
liability insurance in excess of those requirements. In such cases, the UM
exclusion does not protect innocent persons who are injured by uninsured
motorists by providing the reciprocal of the liability coverage. As the supreme
court has explained, the policy of providing for UM coverage is to protect
Florida’s citizens against uninsured motorists by providing broad protections
and not to create exceptions. Salas, 272 So. 2d at 4.

We find support for this conclusion
in case law from other states with analogous UM laws that have concluded that
UM coverage must be the reciprocal of liability coverage which exceeds that
required by law. See, e.g., Bartning v. State Farm Fire & Cas.
Co., 783 P.2d 790, 794 (Ariz. 1989) (In banc); Mission Ins. Co. v. Brown,
407 P.2d 275, 276 (Cal. 1965) (en banc); State Farm Mut. Auto. Ins. Co. v.
Marquez, 28 P.3d 1132, 1134-35 (N.M. Ct. App. 2001).

In Bartning, the Arizona
Supreme Court declared invalid a UM provision that did not extend coverage to
losses occurring in Mexico because the liability provision provided such
coverage. 783 P.2d at 794. The court recognized that state law did not require
liability coverage in Mexico but concluded that UM coverage must be coextensive
with the actual liability coverage that was purchased. Id. at 792, 793.
The court adopted the following reasoning:

Taking the
minimum area requirement for issuing liability policies and imposing it as an
uninsured motorist coverage area restriction . . . overlooks the remedial
purpose of the uninsured motorist statute and the policy that it be liberally
construed to effectuate that purpose. . . . Efforts by insurers to frustrate
this statute by writing limitations into their policies . . . should not be
validated.

Uninsured
motorist coverage reasonably follows liability coverage. Thus, the statute sets
no boundaries because at a minimum, they must coincide with the liability
policy boundaries in view of the statutory language that “no” liability
policy is to issue without uninsured motorist coverage.

Id. at 792 (quoting Transamerica Ins. Co. v. McKee, 551
P.2d 1324, 1328 (Ariz. Ct. App. 1976) (Hathaway, J., specially concurring)).
The court concluded with language mirroring that used by the Florida Supreme
Court: “The statute clearly does not contemplate a piecemeal whittling away of
liability . . . territorially . . . for injuries caused by uninsured
motorists.” Id. at 793 (quoting Brown, 407 P.2d at 277).

In this case, as in Bartning,
the insured obtained liability coverage that exceeded the minimum required by
law. Because UM coverage follows liability coverage, the UM policy was required
to provide reciprocal coverage. A narrower interpretation would not be
consistent with the supreme court’s express prohibition against a piecemeal
whittling away of the UM statute. See Flores, 819 So. 2d at 745; Young,
753 So. 2d at 83; Mullis, 252 So. 2d at 238.

We therefore conclude that the trial
court properly determined that the UM exclusion for vehicles “[d]esigned mainly
for use off public roads while not on public roads” is invalid under the
circumstances of this case. Thus, we affirm the final summary judgment awarding
Willis UM benefits under the terms of her policy.

Affirmed. (BLACK and SALARIO, JJ.,
Concur.)

__________________

1Both Amica’s complaint and Willis’
counterclaim included issues regarding personal injury protection and med pay
benefits. However, those issues have been resolved and are not a subject of
this appeal.

2The trial court also concluded that
the term “public road” was ambiguous and that the ambiguity should be resolved
in favor of coverage. And the court ruled that the accident took place on a
public road. While Amica challenges these findings on appeal, our determination
that the UM exclusion is invalid renders these issues moot.

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