Opinion
No. 86-629.
June 23, 1987. Rehearing Denied July 28, 1987.
Appeal from the Circuit Court for Dade County, Michael Salmon, J.
Adams, Hunter, Angones, Adams, Adams McClure and Christopher Lynch, Miami, for appellants.
Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham Lane and Shelley H. Leinicke, Fort Lauderdale, for appellee.
Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
There is not the slightest indication in this case, much less any allegation in the O'Donnells' complaint, that the primary and derivative damages allegedly suffered by them when Francis O'Donnell fell from the back of a pickup truck exceed or even come close to the amount of $300,000 which the defendant insurance company admits is the amount of uninsured motorist insurance coverage available to the plaintiffs. Since it is apodictic that a suit for declaratory relief must involve a bona fide controversy between the parties, Miller v. Miller, 151 So.2d 869 (Fla. 2d DCA 1963); Grable v. Hillsborough County Port Authority, 132 So.2d 423 (Fla. 2d DCA 1961); Colby v. Colby, 120 So.2d 797 (Fla. 2d DCA 1960), we are of the view that the trial court was eminently correct in refusing to labor over the presently academic question of whether there was uninsured motorist coverage in the still higher amount of $750,000, declining to issue an advisory opinion on that question, and dismissing the count of the complaint seeking declaratory relief without prejudice to the plaintiffs to refile it after the defendant's liability and the extent of the plaintiffs' damages, if any, are determined in arbitration. This is not a case where a person is seeking to have a dispute about the amount of his insurance coverage resolved in order to satisfy himself that he has the amount of coverage that he believed he bought or, if he has not, to be made aware that he must obtain additional protection. Such a person, unlike the O'Donnells, not only demonstrates that he is in doubt as to the existence of his rights under the policy, but also, as is required, "that he is entitled to have such doubt removed." Tindall v. Allstate Insurance Co., 472 So.2d 1291, 1292 (Fla. 2d DCA 1985) (quoting Hildebrandt v. Department of Natural Resources, 313 So.2d 73, 75 (Fla. 3d DCA 1975)).
Affirmed.
BASKIN, J., concurs.
This case came before the trial court on pleadings which give "not the slightest indication" that the O'Donnells' damages are less than $300,000. There is a controversy because Mr. O'Donnell contends that the policy provides $750,000 in coverage whereas the insurer's position is that the policy provides a maximum coverage of only $300,000.
The question presented by this appeal is whether an uncertainty as to the amount of coverage provided by a policy of insurance raises a coverage question which is determinable by the court when presented by a complaint for declaratory relief. The majority says that until the O'Donnells prove damages in excess of $300,000, the question is "academic." I disagree.
Section 86.021, Florida Statutes (1985), Declaratory Judgments, provides that:
Any person . . . who may be in doubt about his rights under a . . . contract . . . may have determined any question of construction or validity arising under such . . . contract. . . .
Section 86.031 provides that a contract may be construed "before . . . there has been a breach of it."
The possibility that the O'Donnells' damages could be less than $300,000 does not preclude the right to a declaratory judgment determining the amount of coverage. See Talcott v. Central Bank Trust Co., 220 So.2d 411 (Fla. 3d DCA 1969) (test for sufficiency of complaint in declaratory judgment proceeding is not whether complaint shows possibility that plaintiff will succeed in getting a declaration of rights in accordance with his theory and contentions).
If the disparity in the claimed amount of coverage had been greater, e.g., $100 versus $1,000,000, it could not be seriously maintained that there is no bona fide coverage issue. It makes no difference, for the sake of controversy, that the contentions here are $300,000 versus $750,000. The plaintiff was entitled to a pre-breach declaration to resolve any doubt as to the amount of coverage.