               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                         IN THE DISTRICT COURT OF APPEAL

                                         OF FLORIDA

                                         SECOND DISTRICT


AMANDA SCHOECK,                  )
                                 )
           Appellant,            )
                                 )
v.                               )             Case No. 2D16-3161
                                 )
ALLSTATE INSURANCE COMPANY, )
                                 )
           Appellee.             )
________________________________ )


Opinion filed October 13, 2017.

Appeal from the Circuit Court for Pinellas
County; Bruce Boyer, Judge.

Wm. Newt Hudson of Law Office of
Wm. Newt Hudson, Tarpon Springs,
for Appellant.

Kansas R. Gooden of Boyd &
Jenerette, PA, Jacksonville, and
Jacqueline M. Bunty of Law Offices
of Jacqueline M. Bunty, Tampa,
for Appellee.


NORTHCUTT, Judge.

             The circuit court ruled that Amanda Schoeck failed to satisfy a condition

precedent to her suit against Allstate Insurance Company, and on that basis it granted
summary judgment to Allstate. We reverse because Allstate waived Schoeck's alleged

noncompliance with the condition at issue.

              In 2009, Schoeck was injured while a passenger in a vehicle owned and

driven by her father. Schoeck alleged in her complaint that the driver of another vehicle

caused the collision in which she was injured but lacked liability coverage sufficient to

fully satisfy her damages claims. At the time of the accident Schoeck was covered by

two uninsured motorists provisions, under her father's Geico policy and her mother's

Allstate policy. The Geico policy provided $20,000 in UM coverage; the Allstate policy

provided $25,000 in UM coverage.

              In 2013, Schoeck sued Allstate seeking UM benefits under its policy; the

record before us does not disclose why Schoeck did not also file suit against Geico at

that time. Schoeck alleged generally that all conditions precedent to maintaining suit

against Allstate had been met or else had been waived. Allstate's answer did not

address that allegation directly, but "denie[d] the allegations in all Paragraphs pertaining

to this Defendant unless otherwise specifically admitted."

              Allstate eventually moved for summary judgment, disclosing the existence

of the Geico policy and requesting among other things that the court prioritize the Geico

policy and reduce Allstate's total excess exposure to $5000. In support, Allstate relied

on a statutory provision providing that insurers may write UM policies limiting an injured

insured's recovery to the highest UM limits afforded to any vehicle insured under that

policy. See § 627.727(9)(c), Fla. Stat. (2015). Allstate argued that Schoeck would only

be entitled to the highest limit from among all vehicles covered under both the Geico

and Allstate UM policies. Since $25,000 was the highest limit available under the



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Allstate policy, and since Allstate was the excess carrier, Allstate asserted that its policy

limit should be reduced by the highest available limit available under the primary Geico

coverage, $20,000.

               The circuit court agreed, and it entered a preliminary order that found the

Geico policy primary and the Allstate policy excess, and that limited Allstate's maximum

liability exposure to $5000. Schoeck moved for reconsideration, urging that section

627.727(9)(c) only limits UM recovery to the highest limit applicable to a vehicle covered

under the Allstate policy itself, and that there was no basis for "crediting" the excess

carrier for proceeds owed by a primary carrier. Schoeck also argued that Allstate had

waived any argument relating to the "Other Insurance" clause because Allstate had not

pleaded an affirmative defense seeking to preclude or diminish recovery in reliance on

that clause.

               In its reply to the motion for reconsideration, Allstate for the first time

argued that "a closer look" at its policy suggested that Schoeck had not satisfied a

condition precedent contained in the "Other Insurance" clause—that she must fully

exhaust all other sources of recoverable insurance before suing Allstate. Allstate also

anticipated that the Geico limits were probably unrecoverable due to the statute of

limitation. Allstate asserted that because Schoeck had failed to timely proceed against

the primary Geico benefits, she was therefore precluded from recovering any excess

coverage from Allstate.

               The circuit court again agreed with Allstate and entered a final summary

judgment declaring that Schoeck's claims against Allstate were barred for failure to

meet a condition precedent. The court specified that "the primary Geico [UM] coverage



                                              -3-
which was available at the time of the automobile accident . . . had not been actually

paid and is now unpayable," and therefore Schoeck would be unable to proceed against

Allstate. The court again found that even had such condition precedent been satisfied,

Allstate's maximum liability would have been reduced to $5000 to account for the

primary Geico proceeds. Schoeck appealed, and we have jurisdiction. See Fla. R.

App. P. 9.030(b)(1)(A).

              The express terms of the Allstate contract provide that prior to taking

action against Allstate, no insured or injured person may sue "unless there is full

compliance with all the terms of the policy." Later, the operative language of the UM

section provides:

              If the injured person was in, on, getting into or out of a
              vehicle [that the insured does] not own which is insured for
              this coverage under another policy, this coverage will be
              excess. . . . [W]hen the injured person is legally entitled to
              recover damages in excess of the other policy limit, [Allstate]
              will pay up to [the UM] policy limit, [excluding special
              damages], but only after all other collectible insurance has
              been exhausted.

(Emphasis added.)

              We agree with the circuit court's order insofar as this contract language

was meant to impose a condition precedent to an action against Allstate. But Allstate

waived this defense by failing to plead the issue with sufficient specificity. Whereas

Florida Rule of Civil Procedure 1.120(c) permits the satisfaction of a condition precedent

to be alleged generally, the rule requires a pleader to deny the performance or

occurrence of a condition precedent "specifically and with particularity."

              Allstate contends that it specifically raised the condition precedent in its

seventh affirmative defense, which alleged that "any recovery should be reduced or

                                            -4-
barred to the extent of available insurance coverage . . . available to any individual or

entity which may be wholly or partially responsible for the damages alleged in

connection with the subject matter of the incident described in the Complaint."

(Emphasis added.) Although this allegation generically evoked other sources of

insurance coverage, the emphasized language limited the defense to coverage that was

available to the instigating tortfeasor or tortfeasors. The defense did not specifically

allege that Schoeck failed to exhaust proceeds available to her from her father's Geico

policy. Because Allstate failed to plead the affirmative defense of noncompliance with a

condition precedent, it waived the defense. See Fla. R. Civ. P. 1.140(h)(1). The court

therefore erred by basing its final judgment on that ground.

              Because we reverse the summary judgment due to Allstate's waiver of the

contractual condition precedent, we need not decide whether Allstate's position—that

Schoeck could not sue until she exhausted Geico's benefits—in fact would have barred

Schoeck's recovery under legal principles governing UM coverage. We note that

Allstate apparently advocates a position that is contrary to the policies underlying the

UM enactments and the caselaw interpreting UM contract language. "[S]ection 627.727

was intended to place the injured party in the same position as he or she would have

been had the tortfeasor been insured." State Farm Mut. Auto. Ins. Co. v. Curran, 135

So. 3d 1071, 1077 (Fla. 2014). "[T]he statute is not designed 'for the benefit of

insurance companies or motorists who cause damage to others.' " Id. (quoting Young v.

Progressive Se. Ins. Co., 753 So. 2d 80, 83 (Fla. 2000)). "As a creature of statute

rather than a matter for contemplation of the parties in creating insurance policies, the

uninsured motorist protection is not susceptible to the attempts of the insurer to limit or



                                            -5-
negate that protection." Sommerville v. Allstate Ins. Co., 65 So. 3d 558, 562 (Fla. 2d

DCA 2011) (quoting Gilmore v. St. Paul Fire & Marine Ins., 708 So. 2d 679, 681 (Fla.

1st DCA 1998)). "[C]onditions or exclusions must be carefully scrutinized first to

determine whether the condition or exclusion unambiguously excludes or limits

coverage, and then to determine, if so, whether enforcement of a specific provision

would be contrary to the purpose of the uninsured motorist statute." Flores v. Allstate

Ins. Co., 819 So. 2d 740, 745 (Fla. 2002).

               We also clarify that limiting Allstate's maximum exposure to $5000 was

error. First, section 627.727(9)(c) authorizes an insurer to offer a policy restricting an

insured's maximum UM benefits to the highest limits afforded to any car covered under

the policy itself. In insurance parlance, the statute permits carriers to offer "unstacked"

or "nonstacked" UM options. Section 627.727(9)(c) does not provide that insurers may

credit their excess UM benefits with a primary insurer's payouts. Second, the Allstate

policy itself provides: "[W]hen the injured person is legally entitled to recover damages

in excess of the [primary] policy limit, [Allstate] will pay up to [the UM] policy limit . . . ."

This language unambiguously entitles Schoeck to recover up to the $25,000 UM policy

limit, provided that her damages exceed the amount of primary coverage.

               Based on the foregoing, we reverse the final summary judgment and

remand for further proceedings consistent with this opinion.

               Reversed and remanded.


LaROSE, C.J., and SILBERMAN, J., Concur.




                                               -6-
