Third District Court of Appeal

State of Florida 

Opinion filed March 30, 2022.

Not final until disposition of timely filed motion for rehearing.

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No. 3D21-1455

Lower Tribunal No. 18-4414

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Marvin White,

Appellant,

vs.

Ascendant Commercial Insurance, Inc., et al.,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Lourdes 

Simon, Judge.

Wasson & Associates, Chartered, and Annabel C. Majewski; and 

Hevia Law Firm, and Anthony Carlos Hevia, for appellant.

Alexander C. Annunziato, for appellee Ascendant Commercial 

Insurance Inc.

Before LINDSEY, HENDON and LOBREE, JJ. 

HENDON, J.
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Marvin White (“White”) appeals from a final summary judgment in favor 

of his employer’s uninsured motorist (“UM”) insurance carrier, Ascendant 

Commercial Insurance, Inc. (“Ascendant”). We affirm. 

White was injured in an accident with a Miami-Dade County School 

Board (“School Board”) bus while riding as a passenger in his employer’s 

work vehicle. He subsequently sued both the School Board and his 

employer’s liability carrier, Ascendant. White settled with the School Board 

for $175,000.00, and the School Board was dismissed with prejudice. 

Subsequently, White sought to collect UM benefits from Ascendant. 

On Ascendant’s motion for summary judgment, White asserted the School 

Board is self-insured, is statutorily classified as an “uninsured” or 

“underinsured” tortfeasor, and UM benefits are available. The trial court 

rejected that argument and determined the School Board was fully insured, 

not self-insured, and as the School Board’s policy provided a limit of liability 

for single occurrence claims up to $200,000.00, White failed to exhaust those 

limits. The trial court concluded that, as a result, White cannot seek 

additional damages via Ascendant’s UM coverage, which is triggered by a 

tortfeasor’s underinsurance or lack of insurance. The trial court granted 

summary judgment for Ascendant. White appeals. 
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Our review of an order granting summary judgment is de novo, as is 

our review of the trial court's interpretation of an insurance policy to 

determine coverage as a matter of law. World Fin. Grp., LLC v. Progressive 

Select Ins. Co., 300 So. 3d 1220, 1222 (Fla. 3d DCA 2020).

Discussion

We first address White’s argument that the School Board is a selfinsured government entity and as such is classified as uninsured or 

underinsured pursuant to section 627.727(3), Florida Statutes (2020), 

thereby making UM benefits available. Florida’s uninsured motorist statute, 

section 627.727(3), provides the circumstances under which a vehicle is 

considered “uninsured,” even when the vehicle is actually insured. An 

“uninsured motor vehicle” shall be deemed to include an insured motor 

vehicle when the liability insurer: “. . . (b) has provided limits of bodily injury 

liability for its insured which are less than the total damages sustained by the 

person legally entitled to recover damages.” Id. Statutory uninsured or 

underinsured motorist coverage is meant to compensate the insured for a 

deficiency in the tortfeasor's coverage. Allstate Ins. Co. v. Marotta, 125 So. 

3d 956, 962 (Fla. 4th DCA 2013) (citing Dewberry v. Auto-Owners Ins. Co., 

363 So. 2d 1077, 1081 (Fla. 1978)); see also Young v. Progressive Se. Ins. 

Co., 753 So. 2d 80, 84 (Fla. 2000) (determining that a person or entity who 
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is a “self-insurer” is not a “liability insurer,” and concluding that Florida's 

uninsured motorist statute treats a motorist who is self-insured as an 

uninsured motorist).

The School Board, however, regularly pays premiums to United 

Educators Insurance, A Reciprocal Risk Retention Group, for coverage that 

provides a combined limit of liability of $500,000.00 for each occurrence, a 

$500,000.00 annual aggregate, and a retained limit of $200,000.00 for any 

one occurrence. Even if the School Board retains a portion of the overall 

risk, this self-retention limit does not constitute self-insurance. See Zeichner 

v. City of Lauderhill, 732 So. 2d 1109, 1113 (Fla. 4th DCA 1999) (holding 

that city's $75,000 retained limit did not render it a self-insurer). The School 

Board’s policy plainly indicates that the School Board is not self-insured, and 

consequently is not “uninsured” pursuant to section 627.727(3). Because 

the School Board was obligated to pay judgments and settlements up to 

$200,000.00, White had up to $200,000.00 in available coverage through the 

School Board.

Ascendant’s policy states that uninsured motorist benefits are payable 

only when the tortfeasor’s insurance coverage has been exhausted through 

the payment of judgments or settlements. The Young case did not eliminate 

the exhaustion requirement, and White’s settlement did not exhaust the 
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School Board’s liability coverage limit. Ultimately, UM coverage exists solely 

to protect claimants who, because of a lack of insurance or not enough 

insurance, cannot be made whole.1 See Young, 753 So. 2d at 86 (“The 

critical question in determining whether a motorist is uninsured or 

underinsured is whether the tortfeasor possesses insurance that will make 

the injured party whole.”). In the present case, White failed on motion for 

summary judgment to demonstrate that the School Board is uninsured or 

underinsured. See also Allstate Ins. Co. v. Boynton, 486 So. 2d 552, 557 

(Fla.1986) (noting that in making a “claim against his UM carrier instead of 

suing the tortfeasor,” the insured “has a policy prerequisite, namely, proof 

that the tortfeasor is uninsured”). Because the School Board’s insurance 

policy provides a liability limit of $200,000.00, and White did not exhaust 

benefits under that policy by settling for less than the policy limits, we agree 

with the trial court that UM coverage was not triggered. See §627.727(3), 

Fla. Stat. (2020). 

1 The record on appeal is silent as to whether White’s damages exceeded 

the settlement amount. See Neff v. Prop. & Cas. Ins. Co. of Hartford, 133 

So. 3d 530, 532 (Fla. 2d DCA 2013) (permitting a direct action but requiring

the insured to show that she was entitled to UM coverage based on showing

her damages exceeded the amount available to her under the tortfeasor's 

liability policy).
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White next asserts that his settlement with the School Board was not 

the final determination of his damages. He argues that a jury should first 

determine his total damages, and only then can the court make a 

determination whether the School Board is underinsured, and trigger UM 

coverage. We disagree. 

An injured insured may bring a direct action against his own uninsured 

motorist carrier without first resolving a claim against the tortfeasor.2 See, 

e.g., Woodall v. Travelers Indem. Co., 699 So. 2d 1361, 1363 (Fla. 1997). 

However, in bringing a direct action against an uninsured motorist carrier, 

the insured must first demonstrate his entitlement to UM coverage on the 

basis that the tortfeasor is an uninsured or underinsured motorist. Neff, 133

So. 3d at 532. “[N]o [UM-coverage] coverage exists if the offending motorist 

is not actually un- or underinsured.” Id. (quoting Vigilant Ins. Co. v. Kelps, 

372 So. 2d 207, 208 (Fla. 3d DCA 1979) (emphasis added)). Contrary to 

White’s assertion, it is the trial court, not a jury, which makes the initial 

determination as a matter of law whether the tortfeasor possesses insurance 

or is uninsured or underinsured. See Vigilant, 372 So. 2d at 208 (holding it 

2 Ascendant’s insurance policy language does not impose a condition 

precedent to filing suit. 
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is the trial court that must first determine the insurance status of the 

tortfeasor). “The insured status of the vehicle. . . goes to the existence of 

coverage, which only the court has the power to resolve.” Id. at 209; see also

Bradley v. Gov't Emps. Ins. Co., 460 So. 2d 981, 981 (Fla. 3d DCA 1984) 

(“In deciding whether the plaintiff-appellant was entitled to uninsured 

motorist coverage under the GEICO policy, the trial court, not the arbitrators, 

was required to determine whether the uninsured motorist policy applied to 

the case at hand.”). White’s argument that only after a jury determination of 

damages can the court determine the insurance status of the School Board

would overturn the trial court’s proper function to make the initial 

determination of law whether UM coverage is available. 

Based on the above analysis, we affirm the trial court’s final summary 

judgment in favor of Ascendant. 

Affirmed.