Crosby v. Nationwide Mutual Fire Insurance Co.

KLEIN, Judge. This appeal involves the issue of whether uninsured motorist benefits are available to a resident of the insured’s household, who was struck by an uninsured motorist while operating a motorcycle owned by him but not insured under the policy. We affirm the trial court’s conclusion that there is no coverage and certify conflict. The policy provisions and facts in the present case are the same as in Nationwide Mutual Fire Insurance v. Phillips, 609 So.2d 1385 (Fla. 5th DCA 1992), rev. granted, 620 So.2d 761 (Fla.1993), in which the fifth district concluded there was coverage. The insurer relies on Government Employees Ins. Co. v. Wright, 543 So.2d 1320 (Fla. 4th DCA 1989), in which this court held that where the claimant is not insured under the liability section of the policy, UM coverage is not mandated by Mullis v. State Farm Mutual Automobile Ins. Co., 252 So.2d 229 (Fla.1971). The insurer also argues that the Florida Supreme Court came to the same conclusion in Valiant Ins. Co. v. Webster, 567 So.2d 408 (Fla.1990). Claimant recognizes that there is language in Valiant which supports the insurer’s argument, but points out the fifth district concluded in Phillips that it was dicta and not controlling. We affirm because of Wright and certify conflict with Phillips. Affirmed. GUNTHER and POLEN, JJ., concur.