Citations
- 226 So. 2d 465
Full opinion text
PEARSON, Chief Judge.
The appellant, Concepcion Raspall, brought a complaint in the circuit court in which she alleged that she was injured as a result of an automobile collision; that at the time of the injury she was a passenger in an automobile insured by the appellee, Beneficial Fire & Casualty Insurance Company; that the collision resulted from the negligence of an uninsured motorist whose identity is unknown. She then sought recovery under the uninsured motorist provision of the policy issued by the appellee, Beneficial Fire & Casualty Insurance Company. The appellee moved to dismiss, pointing out that while the policy which was attached as an exhibit provided coverage for harm caused by a hit-and-run automobile, it did not provide coverage for harm caused by a hit-and-run automobile which did not make physical contact with the automobile which an insured occupied. The trial judge granted the motion to dismiss, and this appeal followed. We affirm.
Appellant presents a single point on appeal urging that it is unnecessary tO' allege that there was physical contact between a hit-and-run automobile and the automobile in which the insured was riding.
The appellant relies upon City of St. Petersburg v. Shannon, Fla.App.1963, 156 So.2d 870, and Butts v. State Farm Automobile Mutual Ins. Co., Fla.App.1968, 207 So.2d 73, for reversal. We do not think either of these cases is governing. The City of St. Petersburg case stands for the proposition that physical contact is not necessary in order for a court to find negligence. This proposition is an element of plaintiff’s argument but is not in dispute. The result in the Butts case does not control the result in the present case for two reasons. First, we did not state it to be a fact that there was no physical contact between the vehicle the plaintiff was driving and the driver of the hit-and-run vehicle. Second, the decision in the Butts case turned upon a holding by this court that a driver exclusion indorsement which was appended to an insurance policy and which was more restrictive than the terms of § 627.0851, Fla.Stat, F.S.A., was void. In the present case the statute is more restrictive than the policy, i. e., we understand § 627.0851 to permit recovery for harm caused by the owner or operator of an uninsured motor vehicle only if the identity of that owner or operator is known, whereas the policy permits uninsured motorist recovery for harm caused by a hit-and-run automobile even though the identity of the owner or operator is unknown. Having enlarged the definition of “uninsured motorist” the company had a legal right to limit such enlargement to cases in which there was physical contact. In other words what the policy gives the policy may take away, but what the statute gives the policy may not take away.
It should be noted that the holding in this case does not affect a situation in which a known uninsured motorist causes damage whether he does so with or without physical contact, nor does the holding affect a situation in which coverage is extended by contract to cover an unknown motorist who has physical contact with a vehicle in which the insured is riding.
We think Inter-Insurance Exchange of Auto Club of So. Cal. v. Lopez, 238 Cal. App.2d 441, 47 Cal.Rptr. 834 (1966), which involved a California statute rather than an insurance contract, sets forth the basic public policy and reasoning for our holding.
Affirmed.
. “1. Damages for Bodily Injury Caused by Uninsured Automobiles : The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this Coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
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“ (c) ‘uninsured automobile’ means:
(1) an automobile with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder ; or
(2) a hit-and-run automobile as defined :
but the term ‘uninsured automobile’ shall not include: