469 So. 2d 925 | Fla. Dist. Ct. App. | 1985
Lead Opinion
This case presents the now familiar problem of
Of the decidedly non-uniform Florida decisions in this field, we conclude that Sunshine Dodge, Inc. v. Ketchem, 445 So.2d 395 (Fla. 5th DCA 1984) embodies a correct analysis of the legal situation before us and therefore follow its holding. In our view, Sunshine Dodge properly recognizes both (a) the binding effect of the provisions of the respective policies of the lessor and the lessee-driver, see Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977), and (b) the rule that an insurer, such as the appellee Southeastern, cannot seek
Finally, we do not understand — as Southeastern seems to argue and Reliance Ins. Co. and DeSerio seem to indicate—why the failure of the lessor and its insurer successfully to invoke sec. 627.7263 as interpreted in Guemes so as to shift from the lessor’s to the driver’s carrier the statutorily-provided primary responsibility for coverage within the $10,000 limits should have any effect upon either the statutory obligation or the effect of the applicable policies. As we have noted, both state that they are excess policies only as to non-owned vehicles with the result that the vehicle owner’s policy provides primary and the driver’s only excess or secondary coverage. Indeed, this is the virtually universal rule in this common legal situation. Fidelity & Casualty Co. of New York v. Cope, 444 So.2d 1041 (Fla. 2d DCA 1984); 7A Am.Jur.2d Automobile Insurance § 432 n. 48 (1980). Since there is no statutory or contractual reason for confining the application of this principle to the $10,000 statutory requirement, or to any limits other than those stated in the owner’s policy, we direct that, on remand, Southeastern’s coverage be declared to be primary to the full extent of its liability limits.
Affirmed in part, reversed in part.
FERGUSON, J., concurs.
. The statute provides:
(1) The valid and collectible liability insurance or personal injury protection insurance providing coverage for the lessor of a motor vehicle for rent or lease shall be primary unless otherwise stated in bold type on the face of the rental or lease agreement. Such insurance shall be primary for the limits of liability and personal injury protection coverage as required by ss. 324.021(7) and 627.736.
(2) Each rental or lease agreement between the lessee and the lessor shall contain a provision on the face of the agreement, stated in bold type, informing the lessee of the provisions of subsection (1) and shall provide a space for the name of the lessee's insurance company if the lessor’s insurance is not to be primary.
Dissenting Opinion
dissenting.
I would agree with the court but for the clear language of section 627.7263(1), Florida Statutes (1983), which states “[s]uch insurance shall be primary for the limits of liability and personal injury protection coverage as required by ss. 324.021(7) and 627.736” (emphasis added). See Reliance Insurance Co. v. Maryland Casualty Co., 453 So.2d 854 (Fla. 4th DCA 1984).
I would affirm the judgment below.