Excess insurer waived defense of failure to comply with condition precedent of exhausting remedies before proceeding against excess insurer when the excess insurer failed to plead the defense with sufficient particularity.

After being injured in a motor vehicle accident, the plaintiff filed a lawsuit against her excess insurer seeking uninsured motorist benefits. The excess insurer moved for summary judgment on the grounds that: (1) the plaintiff failed to comply with the condition precedent of recovering against the primary insurer before seeking benefits from the excess insurer; and (2) Florida Statute § 627.727(9)(c) limits its exposure to the difference between the excess insurer’s uninsured motorist limits and the primary insurer’s uninsured motorist limits.

On appeal, the Second District Court of Appeal held that the excess insurer waived any defenses with respect to the plaintiff’s failure to exhaust remedies against the primary insurer because the excess insurer failed to plead it specifically and with particularity as required by Florida Rule of Civil Procedure 1.120(c). The court further found that, because Florida Statute § 627.727(9)(c) does not provide that insurers may credit their excess uninsured motorist benefits with a primary insurer’s payouts, and because the policy unambiguously provided that the excess insurer would pay up to the policy limit when the injured person is legally entitled to recover damages in excess of the primary policy limit, the plaintiff could recover up to the policy’s uninsured motorist limit.

To avoid a waiver of the defense of the insured’s failure to comply with the condition precedent of exhausting remedies against primary insurers, excess insurers should assert the defense specifically and with particularity. When evaluating the amount of exposure for a particular claim, excess insurers must take both the policy language and Florida Statute § 627.727(9)(c) into consideration.

^{Case Law Alerts, 1st Quarter, January 2018}

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