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T.H.E. Insurance Co. v. Dollar Rent-A-Car Systems4/22/2005
n plain language.
Although section 627.421 requires delivery of a copy of an automobile policy within sixty days after the effectual date, no sanction or penalty for noncompliance is prescribed. The trial court's remedy of eliminating policy exclusions seems harsh in view of T.H.E.'s placement of the notice of the alcohol impairment exclusion in the rental agreement, the most conspicuous document available at any time during the inception of the rental transaction, in view of the short duration of the rental term, and in view of the occurrence of the accident weeks before delivery of the policy was mandated.
Prejudice to the insured should be considered when imposing any sanction for failure to deliver a policy of insurance as required by section 627.421. McGrath cannot show that he was prejudiced by the failure to receive his insurance policy prior to the accident when he was provided with notice of the alcohol impairment exclusion in the rental agreement signed by and delivered to him before he obtained possession of the rented vehicle.
Public Policy
The trial court relied upon P & H Vehicle Rental and Leasing Corp. v. Garner, 416 So. 2d 503 (Fla. 5th DCA 1982), to void the alcoholic impairment exclusion of the SLI insurance policy because it violates public policy. However, P & H Vehicle Rental and Leasing Corp. v. Garner dealt with primary liability insurance coverage, whereas the instant case involves excess liability insurance coverage. We consider this to be an important distinction when considering public policy. The Florida Legislature declared it to be the public policy of this state that owners and operators of motor vehicles carry primary liability insurance coverage when it passed the Financial Responsibility Laws requiring each motorist to have minimum liability insurance coverage regardless of fault. See §§ 324.011; 324.021; 324.022, Fla. Stat. (2004). However, the statutes do not mandate that supplemental liability insurance coverage be obtained once the statutorily mandated minimum level of insurance has been met. Additionally, no Florida statute exists which precludes an exclusion for coverage in an excess or supplemental liability policy when the driver of the vehicle is intoxicated. We find persuasive T.H.E.'s argument that public policy dictates against mandating excess liability insurance coverage when an exclusion for losses that stem from intoxication is clearly spelled out. See, e.g., Hrynkiw v. Allstate Floridian Insur. Co., 844 So. 2d 739, 742 (Fla. 5th DCA 2003) (recognizing that "public policy against insuring for losses resulting from intentional or criminal acts is usually justified by the assumption that such acts would be encouraged, or at least not dissuaded, if insurance were available to shift the financial burden of the loss from the wrongdoer to the insurer").
We vacate the summary final judgment finding coverage notwithstanding the alcohol impairment exclusion and remand for further proceedings to determine whether McGrath was impaired at the time of the accident.
REVERSED AND REMANDED.
SAWAYA, C.J., and THOMPSON, J., concur.
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