What happens when a tortfeasor is in the car with you? Whether this be a single car accident or a larger pileup— in situations where a tortfeasor is the driver of the vehicle and the alleged injured party is a passenger, the passenger normally has one option: collect through bodily injury coverage (“BI Coverage”) only. However, under very limited circumstances, that passenger also gets the benefit of the tortfeasor’s uninsured motorist coverage (“UM Coverage”).
The Florida Supreme Court explained that the “your car” exception found in most insurance contracts specifically limits a party from collecting under the BI Coverage and UM Coverage under the same policy. Travelers Ins. Co. v. Warren, 678 So. 2d 324, 326 (Fla. 1996). Subrogation is a big part of this analysis, as an insurance carrier has no right of subrogation against its own insured. Id. at 328 (internal citations omitted). For this reason, a party seeking UM benefits from the same policy it received BI Coverage extinguishes an insurer’s right of subrogation, which is a specific right under Florida Statutes Section 627.727. For this reason, a plaintiff may not collect twice under one policy for the same theory of liability. Importantly, however, Plaintiff may still benefit from his or her own UM coverage.
What happens, however, if there are two or more theories of liability? When an uninsured motorist exists, whether it be a known party or phantom vehicle, issues related to subrogation are moot. As such, where the theory of liability for the UM coverage is different than the reason for BI coverage, a Plaintiff may collect under both coverages. Stated differently, there are two separate tortfeasors: the first tortfeasor, which allows for BI coverage, and the second tortfeasor which allows for UM coverage.
In Armstrong v. Allstate, a passenger was injured in a two-vehicle accident. He received a BI Coverage payout from the driver of the vehicle in which he was a passenger. Armstrong v. Allstate Ins. Co., 712 So. 2d 788, 789 (Fla. 2d DCA 1998). He could not receive a payout from the other vehicle involved as that driver was not insured. Id. As such, the theory of liability is related to a separate uninsured motorist—not the policyholder. This specific distinction allows a limited circumstance in which BI and UM Coverage are paid out through the same policy. See generally Woodard v. Pennsylvania Nat. Mut. Ins. Co., 534 So. 2d 716, 717 (Fla. 1st DCA 1988).
This distinction is important because it prevents Class II insureds—individuals who are covered under a policy but are neither named insureds nor resident relatives of a named insured—from recovering both BI and UM benefits under a policy for which they did not pay. The circumstances in Armstrong, however, align with the purpose of Florida Statutes section 627.727. This is because the Class II insured is receiving the benefit of UM Coverage, and that benefit is separate and distinct from the benefit of BI Coverage.
Imagine this— you are a passenger in your friend’s vehicle. A vehicle cuts your friend off and keeps driving (“Phantom Vehicle”). This, however, causes your friend to make an evasive movement to avoid a collision. In that evasive movement, however, your friend quickly changes lanes and impacts the vehicle to your right. Here, there are two distinct theories of liability: the negligence of your friend and that of the Phantom Vehicle. For this reason, it is possible to collect under both your friend’s BI Coverage due to your friend’s negligence and your friend’s UM Coverage under the same policy due to the Phantom Vehicle.
Importantly, the ability to pursue both BI and UM coverage under the same policy does not guarantee recovery under both coverages. The insured and the insurer retain the same rights and defenses available to them as in any other litigation.
In short, the ability to collect both BI Coverage and UM Coverage through a single policy is an incredible niche and fact-specific. However, regardless of whether a Plaintiff can collect both coverages, Plaintiff is still able to receive the benefit of his or her UM Coverage, if in existence.