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Zeichner v. City of Lauderhill12/2/1998
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert Lance Andrews, Judge; L.T. Case No. 95-014026(09).
Judith Zeichner, individually and as personal representative of the Estate of Jacob Artman, appeals a final declaratory judgment in favor of appellee, Hartford Casualty Insurance Company (Hartford). Appellant claims that the trial court erred in finding that the tortfeasor, the City of Lauderhill (City), was self-insured, and that she was not entitled to receive underinsured motorist benefits, based on appellee's policy exclusion for vehicles owned by a self-insurer. We agree and reverse the trial court's entry of summary judgment for Hartford.
On January 25, 1995, Jacob Artman was killed in an automobile accident involving a City of Lauderhill police officer. At the time of the accident, Artman had an insurance policy with Hartford that included uninsured motorist (UM) coverage with bodily injury limits of $100,000 per person and $300,000 per accident.
Appellant, the deceased's daughter and executor of his estate, sued the City for wrongful death and, later, added a claim against Hartford for UM benefits. In her complaint, appellant alleged that she was entitled to UM benefits because the City was uninsured and did not maintain liability insurance. Hartford denied coverage and moved to dismiss the complaint based on its policy exclusion for vehicles owned or operated by a self-insurer. In defining "uninsured motor vehicle," the policy provided:
"However, uninsured motor vehicle does not include any vehicle or equipment
2. Owned or operated by a self-insurer under any applicable motor vehicle law, except a self-insurer which is or becomes insolvent."
Appellant then amended her complaint and included a count for declaratory judgment as to entitlement to UM coverage. The trial court granted Hartford's motion to stay the declaratory relief count pending the outcome of the underlying negligence action against the City. While this stay was in effect, on June 3, 1996, Hartford made an Offer of Judgment in settlement of all claims with the condition that " ach party is to bear their own costs and attorneys' fees."
Through discovery, appellant found out that the City did, in fact, have a liability insurance policy with Lloyd's of London. The City's policy with Lloyd's of London provided in pertinent part, as follows:
"As respects any one loss and/or accident or disease and/or claim(s) and/or occurrence(s), including suit(s) brought in connection therewith, the Assured's Loss Fund shall not be charged with
1) any amount in excess of $75,000 Ultimate Net Loss as respects any one loss and/or accident or disease and/or claim(s) and/or occurrence(s), including suit(s) brought in connection therewith, under Section I or II or any combination thereof, . . . LIMITS OF LIABILITY: The Underwriters' Limits of Liability under this Agreement shall be only for the excess of loss over $75,000 Ultimate Net Loss each and every loss and/or accident or disease and/or claim(s) and/or occurrence(s), including suit(s) brought in connection therewith . . . The liability limits on the policy were $100,000 per claim or judgment by any one person and $200,000 per occurrence."
Section II referred to above is the Casualty Insurance section. Agreement E of that section provides:
"AUTOMOBILE LIABILITY: Underwriters hereby agree, subject to the limitations, terms and conditions hereunder mentioned, to indemnify the Assured for all sums which the Assured shall be obligated to pay by reason of the liability imposed upon the Assured by law or assumed by the Named Ass
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