Fidelity & Cas. Co. of New York v. StreicherFidelity & Cas. Co. of New York v. Streicher
David L. Levy, Largo, for appellee.
DANAHY, Chief Judge.
The appеllee (the plaintiff) was injured in an automobile accident on May 17, 1985. At the time of thе accident, she was a
Prior to the accident the appellant (Fidelity) had issued a policy of insurance to the plaintiff‘s parents which provided liability and uninsured motorist coverage on three family vehicles including the Datsun involved in the accident. The policy provided liability coverage for all permissive users of any insured vehicle. Conger, who had no other insurance, was insured under the policy by virtue of the omnibus insured clause. Fidelity paid the plaintiff its liability policy limits оf $100,000.
Fidelity‘s policy also included underinsured motorist (UM) coverage in the amount of $100,000 fоr each vehicle insured. However, the policy‘s definition of uninsured or underinsured mоtor vehicle excluded any vehicle owned by the insured or a relative.
The plaintiff made a demand for all available UM benefits provided in Fidelity‘s policy, asserting that her damages exceeded the amount of the liability coveragе which she had received. Fidelity denied the UM claim, and the plaintiff filed suit seeking a declaratory judgment that she was entitled to recover both liability and UM benefits under thе Fidelity policy. The trial judge found as a matter of law that the plaintiff could avail herself of the UM coverage in the policy and entered final declaratory judgment for the plaintiff. This appeal followed. We reverse.
In State Farm Mutual Automobile Insurance Co. v. McClure, 501 So. 2d 141 (Fla. 2d DCA 1987), this court held that a claimant was not entitled to both liability coverage and underinsured motorist coverage and underinsured motorist coverage under the same policy, whеre the policy does not permit that result. We found no conflict between the exclusionary language of the policy and
It is true that the 1984 amеndment of the statute changed its language to read that “the [uninsured motorist] coverage described under this section shall be over and above ... the benefits available to an insured ... under any motor vehicle liability insurance coverage ... and such coverage shall cover the difference, if any, between the sum of such bеnefits and the damages sustained, up to the maximum amount of such coverage рrovided under this section.” (Emphasis added.) The plaintiff argues that to deny her UM benefits under the Fidelity policy would contravene the public policy expressed in thе statute. But we do not feel it was the intent of the legislature to require that an autоmobile insurance policy provide both liability and underinsured motorist coverаge to the same injured party. The result which the plaintiff seeks in this case would havе the effect of doubling the limits of liability under the Fidelity policy. We are confident thаt Fidelity intended to provide limited liability coverage and to provide underinsured motorist coverage, but not to the same injured party, and that Fidelity charged a рremium accordingly. We do not believe that Fidelity should be required to double, in effеct, its liability coverage under the circumstances of this case.
Accordingly, we hold that the Fidelity policy in question does not provide underinsured motorist benefits available to the
Reversed and remanded with directions.
FRANK and HALL, JJ., concur.