Nunez v. Capital Assurance Co.

PER CURIAM. This is an appeal by the insured Ricardo Nunez from an adverse final summary judgment in a declaratory decree action wherein it was determined that the insured has no excess uninsured motorist coverage with the insurer Capital Assurance Co. We reverse the summary judgment under review upon a holding that genuine issues of material fact exist on this record as to whether the insured knowingly rejected the subject uninsured motorist coverage. Although the insured signed a written rejection of all excess uninsured motorist coverage some weeks after the underlying and excess policy was sold to him, there is considerable confusion on this record as to whether this was a knowing rejection. The insured testified by deposition that he originally purchased $1,000,000 in excess uninsured motorist coverage and that he rejected $2,000,000 of such coverage when offered by the insurer’s agent. The insured’s original insurance application arguably corroborates this testimony in that it tends to indicate (although does not compel a finding) that the insured wanted some type of excess uninsured motorist coverage. The insured further testified by deposition that he thought his subsequent written rejection 298 related solely to the $2,000,000 uninsured motorist coverage which he says he did not want. This being so, we think that the confusion shown on this record as to whether this was a knowing rejection of all excess uninsured motorist coverage precludes a summary judgment in this case. See Lumbermen’s Mut Casualty Co. v. Beaver, 355 So.2d 441, 444 (Fla. 4th DCA 1978); Wilson v. National Indem. Co., 302 So.2d 141, 141-42 (Fla. 1st DCA 1974); cf. United States Fidelity & Guar. Co. v. Darden, 338 So.2d 37 (Fla. 3d DCA 1976), cert. dismissed, 353 So.2d 680 (Fla.1977). But cf. Liberty Mut. Ins. Co. v. Wright, 406 So.2d 1261, 1262 (Fla. 4th DCA 1981), rev. denied, 413 So.2d 877 (Fla.1982). Reversed and remanded.