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Auto-Owners Insurance o. v. Petrik10/7/2005
s insurance over this policy.
The West Coast policy, with its $500,000 liability limit, does not contain a similar duplication of coverage provision.
The trial court relied on the duplication of coverage clause in the Petrik policy to limit Jarallah's recovery to a maximum of $1 million. Jarallah argues, and we agree, that this provision is contrary to the public policy of Florida as expressed in the Florida Insurance Code, which provides in pertinent part:
Stacking of coverages prohibited.-If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, personal injury protection, or other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage she or he has on the vehicle involved in the accident. However, if none of the insured's or named insured's vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section does not apply:
(1) To uninsured motorist coverage, which is separately governed by s. 627.727.
(2) To reduce the coverage available by reason of insurance policies insuring different named insureds.
ยง 627.4132, Fla. Stat. (1999) (emphasis added). "Under this statute, the key to whether or not two policies may be stacked is simply whether the named insureds for the policies are different or are the same." S.C. Ins. Co. v. Kokay, 398 So. 2d 1355, 1357 (Fla. 1981). In an earlier decision from this court, we held that a policy's anti-stacking provision relating to uninsured motorist coverage was contrary to section 627.4132 and therefore unenforceable. Auto-Owners Ins. Co. v. Prough, 463 So. 2d 1184 (Fla. 2d DCA 1985). Likewise here, we conclude that because the policies were issued to different named insureds, the duplication of coverage provision in one policy cannot be used to reduce the available coverage under both policies.
We have found scant Florida case law addressing anti-stacking policy provisions in policies issued to different insureds. In Hartford Insurance Co. of the Midwest v. Bellsouth Telecommunications, Inc., 824 So. 2d 234 (Fla. 4th DCA 2002), the Fourth District interpreted a similar but not identical anti-stacking clause that limited maximum liability to the highest limit under any one coverage form or policy " f this Coverage Form and any other Coverage Form or policy issued to you by us or any company affiliated with us apply to the same 'accident'[.]" Id. at 236 (emphasis added). But that case is distinguishable because it involved two coverage parts within a single, multi-flex policy. This case involves entirely separate policies issued to entirely separate insureds.
Where, as here, separate policies were issued to different named insureds, applying the duplication of coverage provision as the trial court did would permit Auto-Owners to avoid covering a risk it agreed to insure and thus obtain a windfall of one of the two premiums it received. See Aetna Cas. & Surety Co. v. Home Ins. Co., 689 N.E. 2d 1355, 1358 (Mass. App. Ct. 1998). Accordingly, we reverse the trial court's application of the duplication of coverage clause and remand for the trial court to award the policy limits so that Jarallah's judgment will be fully satisfied.
Affirmed in part, reversed in part, and remanded.
KELLY and VILLANTI, JJ., Concur.
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