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Fifth DCA rules that where two UM policies provided coverage for the same loss, one of which provided pro rata coverage and the other pure excess coverage, the pure excess provision controlled

On July 24, 2020, in Progressive Express Insurance Company v. Ferris, et al., No. 5D19-1967, the Florida Fifth DCA reversed a trial court ruling in a case involving a dispute between insurance companies over which company’s uininsured/underinsured motorist (“UM”) coverage was primary.  At the time of the accident, the injured party was driving a motor vehicle owned by his business and insured by Progressive which provided UM coverage to anyone occupying the insured motor vehicle. Meanwhile, the injured party’s wife had UM coverage under a State Farm policy which also provided coverage to the injured party as a resident relative of the named insured. Both policies have other insurance clauses within the section of each policy’s UM provisions, which in general terms state how coverage will be prioritized or shared if more than one policy provides UM coverage, but the policies have conflicting “other insurance” or excess UM clauses. The Progressive policy provides that the UM coverage is excess to any other UM coverage except if the injured party is the named insured or a relative of the named insured who was occupying an insured auto.  The Fifth DCA concluded that this provision did not apply to make the Progressive policy primary because the only named insureds under the policy were the injured party’s incorporated businesses.  The Fifth DCA rejected the trial court’s attempt to import other definitions of “insured” from elsewhere in the contract,   quoting from Intervest Constr. of Jax, Inc. v. Gen. Fid. Ins., 133 So. 3d 494, 497 (Fla. 2014) that “[c]ourts may not ‘rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.’”  The Fourth DCA concluded that the State Farm policy provisions allowing for primary UM coverage also did not apply in this case, leaving applicable only the State Farm provision  of what is known as “pro rata excess coverage”, which means that it will contribute to satisfying a UM claim by paying its fractional share based upon all the UM coverage applicable to the claim. The Fourth DCA observed that in a scenario where two policies provide coverage for the same loss, one of which is pro rata and the other is pure excess, courts give effect to the pure excess provision, citing Progressive Am. Ins. v. Nationwide Ins., 949 So. 2d 293, 294 (Fla. 1st DCA 2007) (citing Demshar v. AAACon Auto Transp., Inc., 337 So. 2d 963, 965 (Fla. 1976)). Thus, contrary to the trial court’s conclusion, State Farm’s pro rata policy is primary and Progressive’s is excess.

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