McClendon v. United States Fire Insurance , 1974 Fla. App. LEXIS 7419 ( 1974 )

PER CURIAM.

Plaintiff in the trial court filed a notice of appeal to review an order of affirmance entered by the circuit court sitting in its appellate capacity. We hereby treat this notice of appeal as a petition for writ of certiorari.

On April 26, 1972 an uninsured vehicle owned by one Noah Thompkins and operated by the petitioner, Leroy McClendon, collided with another vehicle which was in-; sured. As a result thereof petitioner, who at the time was insured under a non-owner policy issued by the respondent, United States Fire Insurance Company, sustained personal injuries. Thereafter, petitioner filed in county court a complaint and an amended complaint wherein he sought benefits under his contract of insurance with respondent insurer on the theory that the uninsured motorist endorsement to his policy provided him with the statutory “no fault” insurance benefits ¹ because the vehicle he was driving was not insured. In response thereto, respondent filed a motion to dismiss for failure to state a cause of action in that (1) the uninsured motorist endorsement does not provide personal injury protection coverage under § 627.727 Fla.Stats., F.S.A. and (2) an individual not owning a vehicle is not required to carry insurance to cover losses pursuant to § 627.730 Fla.Stat., F.S.A. After a hearing was held thereon, the trial court entered an order dismissing the complaint with prejudice. Thereupon, petitioner appealed the order of dismissal to the circuit court which subsequently entered an order of af-firmance. Petitioner then sought review thereof by filing the instant petition for writ of certiorari.

It is well established that on petition for common law certiorari the scope of the appellate court’s review is limited to a determination of whether the court below has exceeded its jurisdiction or has deviated from the essential requirements of law. See 5 Fla.Jur. Certiorari § 24 (19S5) and cases cited therein. A review of the record on its face demonstrates that there was competent substantial evidence contained therein to support the circuit court’s af-firmance of the county court’s order of dismissal which we conclude was correct as a matter of law in that the vehicle which plaintiff was operating collided with a vehicle which was insured.

Accordingly, the petition for writ of cer-tiorari is hereby denied.

It is so ordered.

1 . Personal injury protection benefits.