O'Donnell v. Colonial Penn Insurance Co.
O'Donnell v. Colonial Penn Insurance Co.
Opinion of the Court
There is not the slightest indication in this case, much less any allegation in the O’Donnells’ complaint, that the primary and derivative damages allegedly suffered by them when Francis O’Donnell fell from the back of a pickup truck exceed or even come close to the amount of $300,000 which the defendant insurance company admits is the amount of uninsured motorist insurance coverage available to the plaintiffs. Since it is apodictic that a suit for declaratory relief must involve a bona fide controversy between the parties, Miller v. Miller, 151 So.2d 869 (Fla. 2d DCA 1963); Grable v. Hillsborough County Port Authority,
Affirmed.
BASKIN, J., concurs.
Dissenting Opinion
(dissenting).
This case came before the trial court on pleadings which give “not the slightest indication” that the O’Donnells’ damages are less than $300,000. There is a controversy because Mr. O’Donnell contends that the policy provides $750,000 in coverage whereas the insurer’s position is that the policy provides a maximum coverage of only $300,000.
The question presented by this appeal is whether an uncertainty as to the amount of coverage provided by a policy of insurance raises a coverage question which is determinable by the court when presented by a complaint for declaratory relief. The majority says that until the O’Donnells prove damages in excess of $300,000, the question is “academic.” I disagree.
Section 86.021, Florida Statutes (1985), Declaratory Judgments, provides that:
Any person ... who may be in doubt about his rights under a ... contract ... may have determined any question of construction or validity arising under such ... contract_
Section 86.031 provides that a contract may be construed “before ... there has been a breach of it.”
The possibility that the O’Donnells’ damages could be less than $300,000 does not preclude the right to a declaratory judgment determining the amount of coverage. See Talcott v. Central Bank & Trust Co., 220 So.2d 411 (Fla. 3d DCA 1969) (test for sufficiency of complaint in declaratory judgment proceeding is not whether complaint shows possibility that plaintiff will succeed in getting a declaration of rights in accordance with his theory and contentions).
If the disparity in the claimed amount of coverage had been greater, e.g., $100 versus $1,000,000, it could not be seriously maintained that there is no bona fide coverage issue. It makes no difference, for the sake of controversy, that the contentions here are $300,000 versus $750,000. The plaintiff was entitled to a pre-breach declaration to resolve any doubt as to the amount of coverage.
Reference
- Full Case Name
- Francis O'DONNELL and Alice O'Donnell v. COLONIAL PENN INSURANCE COMPANY
- Cited By
- 2 cases
- Status
- Published