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REVISITING FLORIDA’S UNINSURED MOTORIST LAW AFTER TRAVELERS COMMERCIAL INS CO v. HARRINGTON

Valerie A. Dondero | October 4, 2013

In May, 2012, in Travelers Commercial Ins. Co. v. Harrington, 86 So. 3d 1274 (Fla. 1st DCA 2012), review granted, 116 So. 3d 1264 (Fla. 2013), the First District Court of Appeal ruled that the daughter of a Named Insured was entitled to stacked Uninsured Motorist coverage because the daughter had not personally selected UM coverage nor signed the UM selection/rejection form. In the only ruling of its kind, the First District affirmed Summary Judgment in favor of the daughter, Crystal Harrington, finding that the non-stacking election form, signed by her mother, did not apply to reduce UM coverage available to the daughter under the auto policy issued by Travelers Commercial Insurance Company. Harrington argued that §627.727(1), Fla.. Stat., permitted a rejection (or selection) of UM coverage "on behalf of all insureds" to be signed by the Named Insured. Conversely, §627.727(9), Fla. Stat., provides for non-stacking elections to be signed by "a named insured, applicant or lessee." In light of the differing language, Harrington argued that the subsection (9) waiver must be personally made by the insured who is claiming benefits under the policy. The trial court agreed with Harrington’s analysis and the First District affirmed under these same theories. At least the First District had the wisdom to certify the issue to the Florida Supreme Court as a matter of great public importance and the supreme court has accepted jurisdiction.

In the meantime, insurers have been flooded with demands for UM coverage by any insured who did not personally sign the UM Selection/Rejection form, arguing that long-standing rejections or selections of UM coverage made by a Named Insured were no longer binding and enforceable against non-signing insureds under the Harrington holding. Most insurers, however, appear to be defending these claims, asserting the validity of their signed forms and the decades of legal authorities that permit the named insured to select or reject UM coverage for themselves and in behalf of all insureds under the policy.

The Florida Legislature has quickly taken up the gauntlet. In March 2013, Travelers Commercial Insurance Company filed its Initial Brief in the Florida Supreme Court urging the reversal of the Summary Judgment entered in favor of Harrington and calling on the Court to enforce the validity of UM Rejection/Selection forms signed by the Named Insured. Thereafter, in April 2013, House Bill 341 was passed by both Florida’s Senate and House of Representatives to "return insurance law governing Uninsured Motorist (UM) coverage to the status quo that existed before a recent judicial decision by Florida’s First District Court of Appeal." (See Summary Analysis, HB 341, House of Representatives Final Bill Analysis). The House Bill clarifies that if the Named Insured signs a selection of non-stacked UM coverage, that selection is binding as to every family member or passenger insured under the policy. As a result of this House Bill, §627.727(9), Fla. Stat., has been amended effective June 14, 2013, to add the phrase "on behalf of all insureds" to subsection (9), so that the language parallels subsection (1). See Ch. 2013-195, laws of Fla. (amending §627.727(9)). This amendment should remove any assertion of ambiguity between the subsections, which led to the result in Harrington. The Legislature, by quickly amending the UM statute, correctly recognized that insurers would never have a way of contemplating all persons who may ride as passengers in an insured’s vehicle (thereby subjecting them to potential UM coverage) and would never be in a position to obtain those passengers’ consent to the selected UM coverage in advance. To uphold the ruling in Harrington, Florida insurers would never be in a position to offer any type of UM coverage other than stacked UM, causing significant increases in insurance premiums to Florida consumers.

Florida’s House Bill 341, amending §627.727(9), Fla. Stat., and the Florida Supreme Court’s anticipated ruling in Harrington will hopefully result in a return to the true state of UM coverage in Florida and confirm that when the Named Insured rejects UM coverage, or selects non-stacked UM coverage, that selection is binding and enforceable against all insureds under the policy. Until that ruling is made, insurers should continue to defend these types of UM coverage challenges.

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