Schoeck v. Allstate Insuance Company , 235 So. 3d 953 ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
AMANDA SCHOECK, )
)
Appellant, )
)
v. ) Case No. 2D16-3161
)
ALLSTATE INSURANCE COMPANY, )
)
Appellee. )
________________________________ )
Opinion filed October 13, 2017.
Appeal from the Circuit Court for Pinellas
County; Bruce Boyer, Judge.
Wm. Newt Hudson of Law Office of
Wm. Newt Hudson, Tarpon Springs,
for Appellant.
Kansas R. Gooden of Boyd &
Jenerette, PA, Jacksonville, and
Jacqueline M. Bunty of Law Offices
of Jacqueline M. Bunty, Tampa,
for Appellee.
NORTHCUTT, Judge.
The circuit court ruled that Amanda Schoeck failed to satisfy a condition
precedent to her suit against Allstate Insurance Company, and on that basis it granted
summary judgment to Allstate. We reverse because Allstate waived Schoeck's alleged
noncompliance with the condition at issue.
In 2009, Schoeck was injured while a passenger in a vehicle owned and
driven by her father. Schoeck alleged in her complaint that the driver of another vehicle
caused the collision in which she was injured but lacked liability coverage sufficient to
fully satisfy her damages claims. At the time of the accident Schoeck was covered by
two uninsured motorists provisions, under her father's Geico policy and her mother's
Allstate policy. The Geico policy provided $20,000 in UM coverage; the Allstate policy
provided $25,000 in UM coverage.
In 2013, Schoeck sued Allstate seeking UM benefits under its policy; the
record before us does not disclose why Schoeck did not also file suit against Geico at
that time. Schoeck alleged generally that all conditions precedent to maintaining suit
against Allstate had been met or else had been waived. Allstate's answer did not
address that allegation directly, but "denie[d] the allegations in all Paragraphs pertaining
to this Defendant unless otherwise specifically admitted."
Allstate eventually moved for summary judgment, disclosing the existence
of the Geico policy and requesting among other things that the court prioritize the Geico
policy and reduce Allstate's total excess exposure to $5000. In support, Allstate relied
on a statutory provision providing that insurers may write UM policies limiting an injured
insured's recovery to the highest UM limits afforded to any vehicle insured under that
policy. See § 627.727(9)(c), Fla. Stat. (2015). Allstate argued that Schoeck would only
be entitled to the highest limit from among all vehicles covered under both the Geico
and Allstate UM policies. Since $25,000 was the highest limit available under the
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Allstate policy, and since Allstate was the excess carrier, Allstate asserted that its policy
limit should be reduced by the highest available limit available under the primary Geico
coverage, $20,000.
The circuit court agreed, and it entered a preliminary order that found the
Geico policy primary and the Allstate policy excess, and that limited Allstate's maximum
liability exposure to $5000. Schoeck moved for reconsideration, urging that section
627.727(9)(c) only limits UM recovery to the highest limit applicable to a vehicle covered
under the Allstate policy itself, and that there was no basis for "crediting" the excess
carrier for proceeds owed by a primary carrier. Schoeck also argued that Allstate had
waived any argument relating to the "Other Insurance" clause because Allstate had not
pleaded an affirmative defense seeking to preclude or diminish recovery in reliance on
that clause.
In its reply to the motion for reconsideration, Allstate for the first time
argued that "a closer look" at its policy suggested that Schoeck had not satisfied a
condition precedent contained in the "Other Insurance" clause—that she must fully
exhaust all other sources of recoverable insurance before suing Allstate. Allstate also
anticipated that the Geico limits were probably unrecoverable due to the statute of
limitation. Allstate asserted that because Schoeck had failed to timely proceed against
the primary Geico benefits, she was therefore precluded from recovering any excess
coverage from Allstate.
The circuit court again agreed with Allstate and entered a final summary
judgment declaring that Schoeck's claims against Allstate were barred for failure to
meet a condition precedent. The court specified that "the primary Geico [UM] coverage
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which was available at the time of the automobile accident . . . had not been actually
paid and is now unpayable," and therefore Schoeck would be unable to proceed against
Allstate. The court again found that even had such condition precedent been satisfied,
Allstate's maximum liability would have been reduced to $5000 to account for the
primary Geico proceeds. Schoeck appealed, and we have jurisdiction. See Fla. R.
App. P. 9.030(b)(1)(A).
The express terms of the Allstate contract provide that prior to taking
action against Allstate, no insured or injured person may sue "unless there is full
compliance with all the terms of the policy." Later, the operative language of the UM
section provides:
If the injured person was in, on, getting into or out of a
vehicle [that the insured does] not own which is insured for
this coverage under another policy, this coverage will be
excess. . . . [W]hen the injured person is legally entitled to
recover damages in excess of the other policy limit, [Allstate]
will pay up to [the UM] policy limit, [excluding special
damages], but only after all other collectible insurance has
been exhausted.
(Emphasis added.)
We agree with the circuit court's order insofar as this contract language
was meant to impose a condition precedent to an action against Allstate. But Allstate
waived this defense by failing to plead the issue with sufficient specificity. Whereas
Florida Rule of Civil Procedure 1.120(c) permits the satisfaction of a condition precedent
to be alleged generally, the rule requires a pleader to deny the performance or
occurrence of a condition precedent "specifically and with particularity."
Allstate contends that it specifically raised the condition precedent in its
seventh affirmative defense, which alleged that "any recovery should be reduced or
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barred to the extent of available insurance coverage . . . available to any individual or
entity which may be wholly or partially responsible for the damages alleged in
connection with the subject matter of the incident described in the Complaint."
(Emphasis added.) Although this allegation generically evoked other sources of
insurance coverage, the emphasized language limited the defense to coverage that was
available to the instigating tortfeasor or tortfeasors. The defense did not specifically
allege that Schoeck failed to exhaust proceeds available to her from her father's Geico
policy. Because Allstate failed to plead the affirmative defense of noncompliance with a
condition precedent, it waived the defense. See Fla. R. Civ. P. 1.140(h)(1). The court
therefore erred by basing its final judgment on that ground.
Because we reverse the summary judgment due to Allstate's waiver of the
contractual condition precedent, we need not decide whether Allstate's position—that
Schoeck could not sue until she exhausted Geico's benefits—in fact would have barred
Schoeck's recovery under legal principles governing UM coverage. We note that
Allstate apparently advocates a position that is contrary to the policies underlying the
UM enactments and the caselaw interpreting UM contract language. "[S]ection 627.727
was intended to place the injured party in the same position as he or she would have
been had the tortfeasor been insured." State Farm Mut. Auto. Ins. Co. v. Curran, 135
So. 3d 1071, 1077 (Fla. 2014). "[T]he statute is not designed 'for the benefit of
insurance companies or motorists who cause damage to others.' " Id. (quoting Young v.
Progressive Se. Ins. Co., 753 So. 2d 80, 83 (Fla. 2000)). "As a creature of statute
rather than a matter for contemplation of the parties in creating insurance policies, the
uninsured motorist protection is not susceptible to the attempts of the insurer to limit or
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negate that protection." Sommerville v. Allstate Ins. Co., 65 So. 3d 558, 562 (Fla. 2d
DCA 2011) (quoting Gilmore v. St. Paul Fire & Marine Ins., 708 So. 2d 679, 681 (Fla.
1st DCA 1998)). "[C]onditions or exclusions must be carefully scrutinized first to
determine whether the condition or exclusion unambiguously excludes or limits
coverage, and then to determine, if so, whether enforcement of a specific provision
would be contrary to the purpose of the uninsured motorist statute." Flores v. Allstate
Ins. Co., 819 So. 2d 740, 745 (Fla. 2002).
We also clarify that limiting Allstate's maximum exposure to $5000 was
error. First, section 627.727(9)(c) authorizes an insurer to offer a policy restricting an
insured's maximum UM benefits to the highest limits afforded to any car covered under
the policy itself. In insurance parlance, the statute permits carriers to offer "unstacked"
or "nonstacked" UM options. Section 627.727(9)(c) does not provide that insurers may
credit their excess UM benefits with a primary insurer's payouts. Second, the Allstate
policy itself provides: "[W]hen the injured person is legally entitled to recover damages
in excess of the [primary] policy limit, [Allstate] will pay up to [the UM] policy limit . . . ."
This language unambiguously entitles Schoeck to recover up to the $25,000 UM policy
limit, provided that her damages exceed the amount of primary coverage.
Based on the foregoing, we reverse the final summary judgment and
remand for further proceedings consistent with this opinion.
Reversed and remanded.
LaROSE, C.J., and SILBERMAN, J., Concur.
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