The Florida Supreme Court held an insurer was required to advise the insured of the right to secure UM benefits equal to liability limits (UM waiver/rejection) and obtain a written waiver of UM benefits prior to reducing the benefits when a listed driver became a named insured for the first time.
- Facts
Horace Mann issued a policy to its named insured, Richard Chase, that remained in effect for approximately three-(3) years. Mann secured a rejection for lower UM limits from Richard Chase initially as required by statute. (§ 627.727 UM waiver/rejection) His daughter, Allision Chase, was listed as a driver under the policy, but not as a named insured. Horace Mann removed Richard Chase as the sole named insured, and designated Allison Chase as the new (sole) named insured under the policy. The policy number remained the same. Horace Mann did not provide Allision Chase UM waiver/rejection opportunity. Two years later, Richard Chase was killed and Allison was injured in a motor vehicle accident.
- Trial and Appellate Decisions
The trial court granted partial summary judgment in favor of the insureds finding that both Allison Chase as well as the estate were both entitled to the greater amount of coverage, not the rejection amount that was lower. The 1st DCA reversed the trial court except for Allison Chase, individually, because she did not sign UM waiver as an insured. The 1st DCA noted the policy limits were not changed, the policy was not renewed, not extended, not superseded, and not replaced, so the earlier UM waiver was binding citing State Farm Insurance Co. v. Shaw, 967 So.2d 1011 (Fla. 1st DCA 2007) and Atlanta Cas. Co. v. Evans, 668 So.2d 287, 289 (Fla. 1st
- Supreme Court
The Court noted a conflict between Shaw relied on by Horace Mann, and on Creighton v. State Farm Automobile Insurance Co., 696 So.2d 1305 (Fla. 2d DCA 1997) relied on by Chase. The Court found that Allison’s policy was a “new” policy for purposes of section § 627.727.
The Court found “dispositive language” in the requirement that “a named insured ” (emphasis in the opinion) be given the opportunity to waive those coverages. The Court found the fact that Allison Chase being listed as the named insured on the Horace Mann’s insurance policy created a new policy for the purposes of section § 627.727(1) because it was the first time that the only named insured on the policy had the opportunity to make statutorily required waivers. Therefore, Horace Mann did not obtain a valid waiver of UM coverage under Allison Chase’s policy when it issued the policy to Allison Chase only in her name as named insured.
- Impact/UW Practices
While I think the dissent was correct its opinion that there were insufficient facts to determine whether there was a direct conflict between Shaw and Creighton, this case does not appear to provide any more clarity in UM waiver/rejection area. In fact, I think it muddies the water.
The Court found that the Chase policy was a “new” policy, even though it was the same instrument with the same policy number, because Allison Chase as “named insured” never had an opportunity to select/reject UM waiver. The opinion was silent whether there was a different application taken or any underwriting of the risk, and I naively believed these steps are indicative whether a new risk and new policy is being issue. The Florida Supreme Court found as a matter of law when a listed driver becomes a named insured, a new policy is created regardless of actually underwriting or risk transfer. It is now necessary to secure a UM rejection/waiver anytime a listed driver subsequently becomes the sole named insured on a policy whether a new policy is actually issued or not. I am not certain how many risks would actually trigger this need. Any input from an underwriter or agent would be appreciated.
Although Evans Atlanta Cas. Co. v. Evans, 668 So. 2d 287, 289 (Fla.1st DCA 1996) is still technically good law, it probably would be a best practice to secure a UM waiver/rejection in light of a divorce between a husband and wife. Remember, the Court seemed to ignore the fact that a named insured is the person listed in declarations “and the spouse,” if a resident, when analyzing Creighton. The named insured should always be both husband and wife by definition. You can read Evans and Allison in concert, or I think an interesting coverage dec. action would lie trying to distinguish Evans in light of Allison when a spouse becomes a named insured independently of the former spouse’s policy for the first time.
The link to the opinion:
http://www.floridasupremecourt.org/decisions/2015/sc13-2013.pdf