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MCGLINCHEY v. HARTFORD ACCIDENT & INDEM. CO.

August 5, 1988

HERBERT J. McGLINCHEY, CATHERINE J. McGLINCHEY, Plaintiffs,
v.
HARTFORD ACCIDENT AND INDEMNITY COMPANY, ET AL., Defendants



The opinion of the court was delivered by: DITTER

 DITTER, UNITED STATES DISTRICT JUDGE.

 Presently before me is the motion for summary judgment of defendant Liberty Mutual Insurance Company with regard to count I of plaintiffs' complaint. The following facts are apparent from the parties' briefs:

 Plaintiff Herbert J. McGlinchey was injured in an accident with an uninsured motorist in Naples, Florida, on November 11, 1983. At the time of the accident, plaintiff was driving a car he had rented from Budget Rent-A-Car of Fort Myers, Florida. Defendant Liberty Mutual provided liability insurance coverage to Budget for its fleet of rental cars. Under the terms of his rental agreement with Budget, plaintiff was insured under the insurance policy Liberty Mutual issued to Budget.

 In accordance with Florida law, under its policy with Liberty Mutual, Budget was entitled to uninsured motorist coverage equal to its general liability coverage unless it rejected that coverage or selected uninsured motorist coverage in a lesser amount. Fla. Stat. Ann. ยง 627.727(1) (1984 & Supp. 1988). *fn1" Liberty Mutual moves for summary judgment on count I of plaintiffs' complaint, plaintiffs' claim for uninsured motorist benefits against it, on the basis that Paul Lee, Budget's general manager, rejected uninsured motorist coverage for Budget (and thus for plaintiff) for the policy period covering the date of plaintiff's accident.

 Plaintiffs argue, first, that the rejection of uninsured motorist benefits effected by Lee was not a knowing and intelligent act and that the question whether it was or not must be submitted to the jury, thereby making summary judgment on count I inappropriate. Florida courts have consistently held that a valid rejection of the uninsured motorist coverage provided by Florida statute must be knowingly and intelligently made. E.g., American Fire & Indem. Co. v. Spaulding, 442 So. 2d 206, 208 (Fla. 1983); Kimbrell v. Great American Ins. Co., 420 So. 2d 1086, 1088 (Fla. 1982). See also Lancaster Oil Co., Inc. v. Hartford Acc. & Indem. Co., 486 F. Supp. 399 (N.D. Fla. 1980). In Kimbrell, the Florida Supreme Court stated that the question whether an insured has knowingly rejected uninsured motorist coverage is an issue to be decided by the trier of fact. Kimbrell, 420 So. 2d at 1088. In a more recent decision, however, the Florida Supreme Court affirmed the reversal by the district court of appeals of a trial court's denial of a directed verdict to an insurer on the question whether there had been a knowing rejection of coverage. Vasquez v. Bankers Ins. Co., 502 So. 2d 894 (Fla. 1987). Finding that the insured had signed a form written in bold print which unambiguously rejected uninsured motorist coverage, the Florida Supreme Court concluded that there was no evidence supporting the contention that the rejection of uninsured motorist was not knowingly and intelligently made. Id. at 896. The Florida Supreme Court thus stated that a directed verdict should have been entered in favor of the insurer. Id. The court emphasized that where no evidence has been presented supporting the contention that a rejection was not knowing, the issue need not be submitted to the jury. Id.

 In this case, Lee, on behalf of Budget, *fn2" signed, on March 25, 1983, for the policy year March 18, 1983, to March 18, 1984, *fn3" a form written in bold print which clearly explained the uninsured motorist coverage options available to Budget as its insured. Under the heading "Important - Uninsured Motorist Insurance," the form stated:

 
We are required by Florida law to notify you of all options available to you regarding Uninsured Motorists Coverage. They are:
 
1. You are entitled to Uninsured Motorists coverage in an amount equal to your limits for Bodily Injury Liability coverage.
 
2. Regardless of any lower limits you may carry for Bodily Injury Liability, you are entitled upon written request, to limits up to $ 300,000 each accident.
 
3. You may select Uninsured Motorists limits as low as $ 20,000 each accident, if your Bodily Injury limits are higher than that.
 
4. You may entirely reject Uninsured Motorists coverage.
 
5. You are entitled, upon written request, to select Excess Underinsured Motorist Coverage, which includes the benefits of Uninsured Motorists but applies the amount purchased in addition to ...

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