NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

AMANDA SCHOECK, ) ) Appellant, ) ) v. ) Case No. 2D16-3161 ) ALLSTATE INSURANCE COMPANY, ) ) Appellee. ) ________________________________ )

Opinion filed October 13, 2017. Appeal from the Circuit Court for Pinellas County; Bruce Boyer, Judge.

Wm. Newt Hudson of Law Office of Wm. Newt Hudson, Tarpon Springs, for Appellant. Kansas R. Gooden of Boyd & Jenerette, PA, Jacksonville, and Jacqueline M. Bunty of Law Offices of Jacqueline M. Bunty, Tampa, for Appellee.

NORTHCUTT, Judge.

The circuit court ruled that A manda Schoeck failed to satisfy a condition precedent to her suit against Allstate Insurance Company, and o n that basis it granted- 2 - summary judgment to Allstate. We reverse because Allstate waiv ed Schoeck's alleged noncompliance with the condition at issue. In 2009, Schoeck was injured while a passenger in a vehicle o wned and driven by her father. Schoeck alleged in her complaint that th e driver of another vehicle caused the collision in which she was injured but lacked liabil ity coverage sufficient to fully satisfy her damages claims. At the time of the accident Schoeck was covered by two uninsured motorists provisions, under her father's Geico po licy and her mother's Allstate policy. The Geico policy provided $20,000 in UM cover age; the Allstate policy provided $25,000 in UM coverage. In 2013, Schoeck sued Allstate seeking UM benefits under its policy; the record before us does not disclose why Schoeck did not also fil e suit against Geico at that time. Schoeck alleged generally that all conditions prece dent to maintaining suit against Allstate had been met or else had been waived. Allstat e's answer did not address that allegation directly, but "denie[d] the allegations in all Paragraphs pertaining to this Defendant unless otherwise specifically admitted ." Allstate eventually moved for summary judgment, disclosing the existence of the Geico policy and requesting among other things that the court prioritize the Geico policy and reduce Allstate's tot al excess exposure to $5000. I n support, Allstate relied on a statutory provision providing that insurers may write UM p olicies limiting an injured insured's recovery to the highest UM limits afforded to any veh icle insured under that policy. See § 627.727(9)(c), Fla. Stat. (2015). Allstate argu ed that Schoeck would only be entitled to the highest limit from among all vehicles covere d under both the Geico and Allstate UM policies. Since $25,000 was the highest limit available under the- 3 - Allstate policy, and since Alls tate was the excess carrier, All state asserted that its policy limit should be reduced by the highest available limit availabl e under the primary Geico coverage, $20,000. The circuit court agreed, and it entered a preliminary order that found the Geico policy primary and the Allstate policy excess, and that l imited Allstate's maximum liability exposure to $5000. Schoeck moved for reconsideration , urging that section 627.727(9)(c) only limits UM recovery to the highest limit appl icable to a vehicle covered under the Allstate policy itself, and that there was no basis f or "crediting" the excess carrier for proceeds owed by a primary carrier. Schoeck also a rgued that Allstate had waived any argument relating to the "Other Insurance" clause be cause Allstate had not pleaded an affirmative defense seeking to preclude or diminish recovery in reliance on

that clause. In its reply to the motion for reconsideration, Allstate for the first time argued that "a closer look" at its policy suggested that Schoec k had not satisfied a condition precedent contained in the "Other Insurance" clause—t hat she must fully exhaust all other sources of recoverable insurance before suing Allstate. Allstate also anticipated that the Geico limits were probably unrecoverable d ue to the statute of

limitation. Allstate assert ed that because Schoeck had failed to timely proceed against the primary Geico benefits, she was therefore precluded from re covering any excess coverage from Allstate. The circuit court again agreed with Allstate and entered a fi nal summary judgment declaring that Schoeck's claims against Allstate were barred for failure to meet a condition precedent. The court specified that "the prim ary Geico [UM] coverage- 4 - which was available at the time of the automobile accident . . . had not been actually paid and is now unpayable," and therefore Schoeck would be unab le to proceed against Allstate. The court again found that even had such condition p recedent been satisfied, Allstate's maximum liability would have been reduced to $5000 t o account for the primary Geico proceeds. Schoeck appealed, and we have jurisdic tion. See Fla. R. App. P. 9.030(b)(1)(A). The express terms of the Allstate contract provide that prior to taking action against Allstate, no insured or injured person may sue " unless there is full compliance with all the terms of the policy." Later, the opera tive language of the UM section provides: If the injured person was in, on, getting into or out of a vehicle [that the insured does] not own which is insured for this coverage under another policy, this coverage will be excess. . . . [W]hen the injured person is legally entitled to recover damages in excess of the other policy limit, [Allstate] will pay up to [the UM] policy limit, [excluding special damages], but only after all other collectible insurance has been exhausted. (Emphasis added.) We agree with the circuit court's order insofar as this contr act language was meant to impose a condition precedent to an action against Allstate. But Allstate waived this defense by failing to plead the issue with sufficie nt specificity. Whereas Florida Rule of Civil Procedure 1.120(c) permits the satisfacti on of a condition precedent to be alleged generally, the rule requires a pleader to deny th e performance or occurrence of a condition precedent "specifically and with part icularity." Allstate contends that it specif ically raised the condition p recedent in its seventh affirmative defense, which alleged that "any recovery s hould be reduced or- 5 - barred to the extent of available insurance coverage . . . avai lable to any individual or entity which may be wholly or partially responsible for the dam ages alleged in connection with the subject matter of the incident described in the Complaint." (Emphasis added.) Although this allegation generically evoked other sources of insurance coverage, the emphasized language limited the defense to coverage that was available to the instigating tortfeasor or tortfeasors. The de fense did not specifically allege that Schoeck failed to exhaust proceeds available to her from her father's Geico policy. Because Allstate failed to plead the affirmative defen se of noncompliance with a condition precedent, it waived the defense. See Fla. R. Civ. P . 1.140(h)(1). The court therefore erred by basing its final judgment on that ground. Because we reverse the summary judgment due to Allstate's wai ver of the contractual condition precedent, we need not decide whether All state's position—that

Schoeck could not sue until she exhausted Geico's benefits—in f act would have barred Schoeck's recovery under legal principles governing UM coverage . We note that Allstate apparently advocates a position that is contrary to th e policies underlying the

UM enactments and the caselaw interpreting UM contract language . "[S]ection 627.727 was intended to place the injured party in the same position as he or she would have

been had the tortfeasor been insured." State Farm Mut. Auto. I ns. Co. v. Curran, 135 So. 3d 1071, 1077 (Fla. 2014). "[T]he statute is not designed 'for the benefit of insurance companies or motorists who cause damage to others.' " Id. (quoting Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 83 (Fla. 2000)). "As a creature of statute rather than a matter for contemplation of the parties in creati ng insurance policies, the uninsured motorist protection is not susceptible to the attempt s of the insurer to limit or- 6 - negate that protection." Sommerville v. Allstate Ins. Co., 65 So. 3d 558, 562 (Fla. 2d DCA 2011) (quoting Gilmore v. St. Paul Fire & Marine Ins., 708 So. 2d 679, 681 (Fla. 1st DCA 1998)). "[C]onditions or exclusions must be carefully scrutinized first to determine whether the condition or exclusion unambiguously excl udes or limits coverage, and then to determine, if so, whether enforcement of a specific provision would be contrary to the purpose of the uninsured motorist stat ute." Flores v. Allstate Ins. Co., 819 So. 2d 740, 745 (Fla. 2002). We also clarify that limiting Allstate's maximum exposure to $5000 was error. First, section 627.727(9)(c ) authorizes an insurer to o ffer a policy restricting an insured's maximum UM benefits to the highest limits afforded to any car covered under the policy itself. In insurance parlance, the statute permits carriers to offer "unstacked" or "nonstacked" UM options. Section 627.727(9)(c) does not pro vide that insurers may credit their excess UM benefits with a primary insurer's payout s. Second, the Allstate policy itself provides: "[W]hen the injured person is legally e ntitled to recover damages in excess of the [primary] policy limit, [Allstate] will pay up to [the UM] policy limit . . . ." This language unambiguously entitles Schoeck to recover up to t he $25,000 UM policy limit, provided that her damages exceed the amount of primary c overage. Based on the foregoing, we reverse the final summary judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

LaROSE, C.J., and SILB ERMAN, J., Concur.