ORFINGER, Chief Judge.
Two issues are raised on appeal: (1) Is a vehicle an uninsured vehicle when a policy of liability insurance covers it, but the policy does not provide coverage for the particular occurrence; (2) Is the insured "legally entitled to recover" from the operator of an uninsured motor vehicle when there is a statutory bar to an action against the operator, but for which bar, recovery would lie? In this action to recover uninsured motorist benefits, the trial court entered a summary judgment in favor of the insurer and the insured appeals. We reverse.
Richard O. Boynton, appellant, was employed by Sears, Roebuck & Company as an auto mechanic. James Luke was also employed by Sears as a mechanic and worked in the same garage as did Boynton. While both were on the job, Boynton was injured when he was struck by a car on which Luke was working. Boynton sought damages under Luke's automobile liability policy, but the carrier denied coverage because Luke was on the job when the accident occurred and Luke's policy excluded coverage for injury occasioned during the pursuit of a business.
The auto which ran into Boynton was owned by Gelco Corporation and leased to Xerox Corporation. Xerox had left it with Sears for repairs and maintenance. The Boyntons filed suit against Sears and Xerox and their respective insurance carriers. Sears was later voluntarily dismissed, and a final summary judgment was entered in favor of Xerox under the principles announced in Castillo v. Bickley, 363 So.2d 792 (Fla. 1978). This order was not appealed, but it is significant here in that it demonstrates that the owner's liability insurance is not available to Boynton. The Boyntons then amended their complaint, alleging that Luke was an uninsured motorist when he negligently ran the car into Boynton so that Boynton was entitled to recover his damages from Allstate under his (Boynton's) uninsured motorist coverage. The court entered final summary judgment in favor of Allstate, and this order is the subject of this appeal.
In Boynton's automobile insurance policy, Allstate has agreed that:
There is no contention that Boynton's injury was not caused by accident, nor from the maintenance or use of an automobile. Allstate contends, however, that the automobile in question was not "uninsured" and that Boynton was not "legally entitled to recover" damages from Luke. Thus, argues Allstate, Boynton is not entitled to recover uninsured motorist benefits.
I. IS THE AUTO IN QUESTION "UNINSURED"?
Boynton's policy provides us with this definition:
Wausau, Xerox's carrier, has denied coverage for this accident because Xerox is not responsible for it. The question thus presented is whether a vehicle is "uninsured" although covered by a liability policy, when the policy provides no coverage for the particular loss for which damages are claimed.
In Brown v. Progressive Mutual Insurance Company, 249 So.2d 429 (Fla. 1971), the supreme court held:
249 So.2d at 430.
In American Fire and Casualty Company v. Boyd, 357 So.2d 768 (Fla. 1st DCA 1978), the court found the vehicle which caused plaintiff's injury to be "uninsured," though covered by a liability policy, because of a provision which excluded coverage when the insured was travelling under military orders. The court said:
357 So.2d at 768.
Allstate relies on Centennial Insurance Company v. Wallace, 330 So.2d 815 (Fla. 3d DCA), cert. denied, 341 So.2d 1087 (Fla. 1976), as support for the judgment here. Wallace held that a self-insured vehicle was not an uninsured vehicle, and that it could not be considered "uninsured" "simply because coverage may not be available to the injured party under the circumstances." Id. at 817. We cannot agree, and we hold, as in Boyd, that a motor vehicle is uninsured, as that term pertains to a specific loss, if the offending motorist has no insurance coverage available for the protection of the injured party. Brown. In our view, a policy which, because of exclusions, provides no coverage for a particular loss, is tantamount to no insurance at all as respects that loss. Additionally, the existence of the "owner's" insurance here is really irrelevant, because Xerox cannot be held liable as owner, absent its own negligence, for the operation of the vehicle when that vehicle has been turned over to a repair shop or garage. Castillo. We find nothing in the applicable
II. IS BOYNTON "LEGALLY ENTITLED TO RECOVER" DAMAGES FROM LUKE, AS THE OPERATOR OF THE VEHICLE WHICH CAUSED THE INJURY?
Luke and Boynton were fellow employees at Sears, so section 440.11, Florida Statutes (Supp. 1978), applies here and precludes suit by Boynton against Luke.
The majority of courts which have construed the words "legally entitled to recover as damages" have construed them to mean simply that the insured must be able to establish fault on the part of the uninsured motorist which gives rise to the damages and to prove the extent of the damages. See, e.g., Winner v. Ratzlaff, 211 Kan. 59, 505 P.2d 606 (1973), and cases cited in Anno., 73 A.L.R.3d 632, 649. Recovery may be had under this coverage when the claimant shows conduct on the part of the tortfeasor which would entitle claimant to recover damages even though a defense available to the tortfeasor would defeat actual recovery. Allstate Insurance Co. v. Elkins, 77 Ill.2d 384, 33 Ill.Dec. 139, 396 N.E.2d 528 (1979).
In other cases, it has been held that the expiration of the statute of limitations which would bar an action against the tortfeasor does not bar recovery of uninsured motorist benefits, Sahloff v. Western Casualty & Surety Company, 45 Wis.2d 60, 171 N.W.2d 914 (1969); DeLuca v. Motor Vehicle Accident Indemnity Corporation, 17 N.Y.2d 76, 268 N.Y.S.2d 289, 215 N.E.2d 482 (1966); Transnational Insurance Company v. Simmons, 19 Ariz.App. 354, 507 P.2d 693 (1973); that the inability of the injured party to recover against the tortfeasor because of interspousal immunity does not prevent recovery of uninsured motorist benefits, Elkins; that a discharge in bankruptcy of the tortfeasor which bars suit against him does not preclude recovery of uninsured motorist benefits, Wilkinson v. Vigilant Insurance Company, 236 Ga. 456, 224 S.E.2d 167, on remand, Wilkinson v. Craft, 138 Ga.App. 380, 226 S.E.2d 478 (1976); and that the insured's dismissal of an uninsured tortfeasor who is joined in a suit seeking uninsured motorist benefits does not bar the insured's recovery from the insurer of uninsured motorist benefits, Reese v. Preferred Risk Mutual Insurance Company, 457 S.W.2d 205 (Mo. App. 1970).
In Watkins v. United States, 462 F.Supp. 980 (S.D.Ga. 1977); aff'd 587 F.2d 279 (5th Cir.1979), the widow of a serviceman who was killed on the base by a shuttle bus driven by a civilian employee sued the United States, the driver, and Government
On the uninsured motorist claim, GEICO contended that no benefits were payable because plaintiff could not recover judgment against the driver in view of the immunity afforded by the Federal Drivers Act. Thus, argued GEICO, plaintiff was not "legally entitled to recover" damages. The court rejected this argument and held that if an insured can establish tort liability, he can recover from his uninsured motorist carrier "regardless of whether he can recover against the uninsured motorist." Id. at 990.
A claim for uninsured motorist benefits is a claim under the insurance contract. Hartford Accident and Indemnity Company v. Mason, 210 So.2d 474 (Fla. 3d DCA 1968). Without the policy provision, there would be no claim against the carrier. Allstate contends, however, that if the vehicle involved is uninsured, then the injured party's carrier stands in the shoes of the tortfeasor, and should have all its rights. This argument is often made, but has been aptly restricted in this context as explained in Sahloff v. Western Casualty & Surety Company, where the Wisconsin Supreme Court said:
171 N.W.2d at 918.
We agree. The insured has paid a premium for insurance coverage which protects him when he is injured through the negligence of an uninsured motorist. He need not secure a recovery against such motorist as a condition to his securing uninsured motorist benefits (and in fact may not do so under the policy without the carrier's consent.) He is "legally entitled to recover" in the context of the insurance policy if he can show liability on the part of the uninsured motorist and damages resulting therefrom.
The judgment appealed from is reversed and the cause is remanded for further proceedings consistent herewith.
REVERSED and REMANDED.
DAUKSCH, J., concurs.
FRANK D. UPCHURCH, Jr., J., dissents with opinion.
FRANK D. UPCHURCH, Jr., Judge, dissenting.
I respectfully dissent. The majority opinion directly conflicts with Centennial Insurance Co. v. Wallace, 330 So.2d 815
330 So.2d at 817.
The majority equates "legally entitled to recover" with the establishment of fault on the part of the uninsured motorist. I cannot conclude this is correct for two reasons. First, "legally entitled" means something more than simply "entitled." In the instant case, Boynton was perhaps "entitled" to recover but he was not "lawfully or legally" entitled to recover because he was barred by law from recovery. See § 440.11, Fla. Stat. (Supp. 1978). Had he been legally entitled to recover, Boynton could recover from Luke who had a liability policy in effect. Second, the wording of the uninsured motorist statute includes "lawfully entitled to recover from the operator of an uninsured motor vehicle." The vehicle was not uninsured by the definition in the policy or as provided by law. In fact, the vehicle had in effect all the liability insurance required by law.
In Hayston v. Allstate Insurance Company, 290 So.2d 67 (Fla. 3d DCA 1974), Hayston was injured in an accident with another vehicle operated by David McConnell and owned by John Jordan. McConnell had no automobile liability policy. However, Jordan had a policy in effect which provided coverage to McConnell as a permissive user of the automobile. On appeal from a final summary judgment in favor of Allstate, Hayston argued that the uninsured motorist provision was applicable where the operator of the vehicle, McConnell, did not own a policy, even though the owner, Jordan, did have a policy covering the driver of the car with the permission and consent of the owner. The court rejected this argument, stating:
In Reid v. Allstate Ins. Co., 344 So.2d 877, 879 (Fla. 4th DCA 1977), approved, Reid v. State Farm Fire & Casualty Co., 352 So.2d 1172 (Fla. 1978), where a daughter was prevented from recovering from her father, the court stated:
While philosophically I may agree that the cases cited reflect an omission in uninsured motorist protection, I cannot agree that we have any authority to rewrite the clear and unambiguous policy terms which define an uninsured motor vehicle as "a motor vehicle which has no bodily injury liability bond or insurance policy in effect at the time of the accident", in the absence of statutory mandate or unless the definition contravenes public policy.
In Salas v. Liberty Mutual Fire Insurance Co., 272 So.2d 1, 3 (Fla. 1972), the Florida Supreme Court said:
Therefore, it follows that the insurance carrier stands in the shoes of the tortfeasor and if there can be no recovery against the
The majority opinion has created a large class of uninsured vehicles. Every automobile left with a garage for repairs is uninsured as to employees injured by its negligent operation. While this risk may not be as great as I envision it, it is certainly not a risk contemplated by the carrier in establishing its rates. I would affirm.