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Florida Third DCA reverses trial court's denial of summary judgment for defendant insurer, finding that policy was an "excess policy" not subject to the requirement of a written waiver of UM coverage

On February 22, 2017, in Zurich American Insurance Company v. Cernogorsky, No. 3D16-689, the Florida Third DCA reversed the trial court’s ruling denying a summary judgment motion by the defendant insurer. The plaintiff had been injured as a pedestrian and after collecting the insurance BI policy limits of the motorist who struck him, he rejected his own UM policy limits of $10,000 and sought UM coverage under his employer’s insurance policy issued by the defendant. The basis of his claim was that: (1) he was a covered individual under the company’s policy because the policy covered autos not owned by the company, which according to the plaintiff included vehicles owned by employees; and, (2) the policy provided primary coverage which included UM coverage that extended to him because the company had failed to execute a UM coverage waiver as required by section Fla. Stat. 627.727(1). The Third DCA ruled that the case should have been resolved by the trial court on summary judgment because there was neither a factual dispute nor an ambiguity in the language of the policy. The Court ruled that the undisputed facts established that no vehicle other than the at-fault driver’s vehicle were involved in the accident, hence rendering the policy provisions about “covered autos” irrelevant; that the plaintiff was not a named insured under the policy; and that the waiver of UM coverage mandate imposed by Fla. Stat. 627.727(1) did not apply to the policy because the policy was not a primary liability policy, but an excess policy not subject to the requirement of a written waiver of UM coverage. Since plaintiff’s employer owned no vehicles of its own, the excess coverage simply insured employees driving their own vehicles while in the course and scope of their employment.