On January 8, 2009, the 1st DCA decided O’Brien v. State Farm Mut. Automobile Ins. Co., 34 FLW D110a. In O’Brien, Mr. O’Brien purchased a $1,000,000 umbrella policy from State Farm. He rejected UM coverage in writing on the umbrella. Thereafter, Mr. O’Brien added vehicles which were covered under the umbrella policy, and ultimately added his 4 children as they began to drive.
Tragically, sometime later, Mr. O’Brien’s daughter was killed by an underinsured driver. State Farm tendered the limits on the underlying policies which included UM, but refused to pay anything under the umbrella.
The trial court agreed with State Farm about the lack of coverage, and the 1st DCA affirmed. The 1st DCA analyzed Section 627.727(2), Fla. Stat., (the section of the UM statute dealing with umbrella policies), and held that it only requires an insurer to make UM “available as part of the application, and at the written request of an insured.” The Court stated there was no need to obtain another waiver of UM coverage under the umbrella after the initial waiver was obtained. The Court noted that subsection (2) does not contain the same strict notice requirements as subsection (1) (the section dealing with primary policies), but implied that even under subsection (1) there would have been no need for additional waivers under these circumstances as long as the other requirements of subsection (1) had been met.
The 1st DCA distinguished Strochak v. Federal Ins. Co., 717 So. 2d 453 (Fla. 1998)(holding that when moving from New Jersey to Florida, excess insurer was required to obtain a new UM rejection/selection form when vehicles first become registered or principally garaged in Florida and when the policy is delivered or issued for delivery in Florida); and Fireman’s Fund Ins. Co. v. Pohlman, 485 So. 2d 418 (Fla. 1986)(holding that insured entered a “separate and severable contract of insurance” when an automobile policy endorsement added coverage for an additional vehicle after Section 627.4132, Fla. Stat., had been amended to permit stacking.)