ROBERT QUINN, APPELLANT,
v.
AMERISURE INSURANCE COMPANY, APPELLEE

Fla. 4th DCA | 1990-05-16
No. 87-2497
ANSTEAD and WALDEN, JJ., concur., HERSEY, C.J., and DOWNEY, ANSTEAD, LETTS, GLICKSTEIN, DELL, WALDEN, GUNTHER, STONE, WARNER, POLEN and GARRETT, JJ., concur.
568 So. 2d 1277 Florida District Court of Appeal, Fourth District (1990)

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Synopsis

Quinn's insurer sought a declaratory judgment reducing uninsured motorist coverage by offsetting a settlement from the tortfeasor's liability insurer. The Fourth District reversed, holding that Florida law prohibits such offsets and that Quinn retained his contractual right to arbitration on damages.


Holding

The court held that the 1984 amendment to Florida law expressly prohibits offsetting UM coverage by the tortfeasor's liability insurance limits, and that Quinn retains his full $20,000 UM coverage and his contractual right to arbitrate issues relating to his entitlement to recover damages.


Headnotes

[1] Uninsured motorist coverage is not subject to reduction by a setoff of the tortfeasor's liability insurance when the tortfeasor's policy limits are less than the uninsure…

[2] An insurer's consent to a settlement between the insured and the tortfeasor's liability insurer may waive the insurer's right of subrogation.

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Key Quotes

“The 1984 amendment to section 627.727(1) (which applies to this policy of insurance) expressly prohibits reducing the amount of available UM coverage by a setoff of the tortfeasor's liability insurance.”

This establishes the core legal principle that UM coverage cannot be offset by tortfeasor liability insurance under Florida law.

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Facts & Procedural History

Amerisure issued Quinn a policy with $20,000 uninsured motorist coverage in 1985. The tortfeasor had only $10,000 in liability insurance, making him t…

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Opinion of the Court
WILLIAM C. OWEN, Jr., (Retired), Associate Judge.

WILLIAM C. OWEN, Jr., (Retired), Associate Judge.

This case involves uninsured motorist (UM) coverage. The trial court, on undisputed facts, entered a declaratory judgment (1) holding that the $20,000 UM coverage in the policy issued in 1985 by appel-lee to Robert Quinn (the named insured) was subject to offset for the $10,000 policy limits settlement which Quinn received (with appellee’s consent) from the tortfeasor’s liability insurer, and (2) denying Quinn’s demand for arbitration on the issues of liability and damages. We reverse on both issues.

The tortfeasor was, by definition, “uninsured” since the limits of his available liability insurance were less than the limits of the UM coverage issued by appellee to Quinn. See § 627.727(3)(b), Fla.Stat. (1984). The 1984 amendment to section 627.727(1) (which applies to this policy of insurance) expressly prohibits reducing the amount of available UM coverage by a setoff of the tortfeasor’s liability insurance. Accordingly, Quinn has $20,000 UM coverage available to him as the insured under the policy issued by appellee. See Shelby Mutual Ins. Co. v. Smith, 556 So. 2d 393 (Fla.1990); United States Fidelity & Guaranty Co. v. Woolard, 523 So. 2d 798 (Fla. 1st DCA 1988).

While appellee argues that Quinn’s settlement with the tortfeasor’s liability insurer has deprived appellee of its right of subrogation against the tortfeasor, the record is clear that appellee consented to the settlement and had no concern with a right of subrogation due to the fact that its claims manager felt Quinn’s injuries would not warrant a financial recovery in excess of the tortfeasor’s liability limits.

Before this declaratory judgment suit was filed by appellee, both it and Quinn had agreed to arbitration. The suit was filed by appellee after Quinn notified appellee that he claimed $20,000 UM benefits rather than the $10,000 he had initially requested. This case never involved a question of the existence of UM coverage. The only question was whether the amount of such coverage was subject to reduction by setoff of the amount paid by the tortfeasor’s insurer. There was no reason to deny Quinn his contractual right to arbitrate the issues relating to his entitlement to recover damages from the tortfeasor. See Allstate Ins. Co. v. Candreva, 497 So. 2d 980 (Fla. 4th DCA 1986); State Farm Fire & Cas. Co. v. Glass, 421 So. 2d 759, 761 (Fla. 4th DCA 1982).

Reversed and remanded for further proceedings consistent herewith.

ANSTEAD and WALDEN, JJ., concur.

Other
PER CURIAM.

PER CURIAM.

The appellee has moved for rehearing, and rehearing en banc, suggesting that this court’s opinion is in conflict with our previous opinion in Lumberman’s Mutual Casualty Co. v. Beaver, 355 So. 2d 441 (Fla. 4th DCA 1978). We recede from Beaver to the extent that it holds that once any aspect of an insurance controversy is before a court that no other aspect of the controversy may be decided by arbitration. See Allstate Insurance Co. v. Candreva, 497 So. 2d 980 (Fla. 4th DCA 1986); State Farm Fire & Casualty Co. v. Glass, 421 So. 2d 759 (Fla. 4th DCA 1982); Allstate Insurance Co. v. Banaszak, 561 So. 2d 465 (Fla. 4th DCA 1990).

We deny the petitions for rehearing and rehearing en banc.

HERSEY, C.J., and DOWNEY, ANSTEAD, LETTS, GLICKSTEIN, DELL, WALDEN, GUNTHER, STONE, WARNER, POLEN and GARRETT, JJ., concur.


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