No. 78-2396 | Fla. Dist. Ct. App. | Aug 7, 1979
Lead Opinion
Appellants, plaintiffs below, bring this appeal from an order entered by the trial court dismissing their fourth amended complaint with prejudice.
While a pedestrian, appellant Florentino Carrazana was struck and injured by an uninsured vehicle. At the time of the accident, Florentino was covered by an automobile insurance policy which had been issued to his daughter-in-law, appellant Maria Carrazana, by Gateway Insurance Company. Appellee, Florida Insurance Guaranty Association, (FIGA) is the statutory successor to Gateway. See Chapter 631, Florida Statutes (1977). Approximately one year before the accident, Maria had renewed her policy and, allegedly, signed a written rejection of the uninsured motorist coverage (UIM) which she had previously carried. About two and one-half years after the accident, appellants made an UIM claim against FIGA which refused to arbitrate the matter. Thereafter, appellants filed a declaratory judgment action against appel-lee and in their fourth amended complaint alleged, among other things, that any rejection of UIM coverage by Maria was ineffective because it was unknowingly and unin-
In our opinion, based upon the pleadings before the trial court at the time appellee’s motion to dismiss with prejudice was granted, the fourth amended complaint stated a cause of action which should not have been dismissed. See, e. g., Raney v. Jimmie Diesel Corp., 362 So. 2d 997" court="Fla. Dist. Ct. App." date_filed="1978-09-26" href="https://app.midpage.ai/document/raney-v-jimmie-diesel-corp-1789656?utm_source=webapp" opinion_id="1789656">362 So.2d 997 (Fla.3d DCA 1978); United States Fidelity & Guaranty Co., 338 So. 2d 37" court="Fla. Dist. Ct. App." date_filed="1976-08-17" href="https://app.midpage.ai/document/us-fidelity--guaranty-co-v-darden-1097095?utm_source=webapp" opinion_id="1097095">338 So.2d 37 (Fla.3d DCA 1976); and Weathers v. Mission Insurance Co., 258 So. 2d 277" court="Fla. Dist. Ct. App." date_filed="1972-02-15" href="https://app.midpage.ai/document/weathers-v-mission-insurance-company-1613671?utm_source=webapp" opinion_id="1613671">258 So.2d 277 (Fla.3d DCA 1972). See also § 627.727(1), Fla.Stat. (1977). Accordingly, the order appealed is reversed and the cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Dissenting Opinion
(dissenting).
In my view, the controlling question on this appeal is whether appellee Florida Insurance Guaranty Association is responsible for mistakes made by an insolvent insurer in issuing a policy, i. e., in failing properly to advise the policyholder prior to the policyholder’s signing a rejection of uninsured motorist coverage. I would hold that such conduct is not a “covered claim” as defined in Section 631.54(4), Florida Statutes (1977). See also Section 631.57(1)(a)(3), Florida Statutes (1977). Admittedly, there is authority for the majority view that the Association stands in the shoes of the insolvent insurer. See Peoples v. Florida Insurance Guaranty Association, 313 So. 2d 40" court="Fla. Dist. Ct. App." date_filed="1975-04-02" href="https://app.midpage.ai/document/peoples-v-florida-insurance-guaranty-association-inc-1905623?utm_source=webapp" opinion_id="1905623">313 So.2d 40 (Fla.2d DCA 1975). I simply would hold that the statutory language must be confined only to the liability created by the provisions within the four corners of the insurance policy and that appellee Florida Insurance Guaranty Association “. . .is not vicariously liable for tortious acts of member insurers.” Rivera v. Southern American Fire Insurance Company, 361 So. 2d 193" court="Fla. Dist. Ct. App." date_filed="1978-07-05" href="https://app.midpage.ai/document/rivera-v-southern-am-fire-ins-co-1701082?utm_source=webapp" opinion_id="1701082">361 So.2d 193 (Fla.3d DCA 1978).