In an earlier posting I discussed the application of exclusionary language in an automobile liability insurance policy that contained an “other insurance” clause. In yet another example dealing with an automobile liability insurance policy dealing with uninsured motorist coverage, the policy contained language that stated that if the insured was in a vehicle he/she does not own that is covered under another policy, this policy is excess but only after all other insurance is exhausted.
In this case, the insured was in a vehicle she did not own and there was coverage under another policy. The insurer argued that the other insurance policy was primary and because it was not exhausted, there was no uninsured motorist coverage under this policy. The “other insurance” provision was not satisfied; thus, the insured failed to satisfy conditions precedent.
However, the appellate court held that the insurer WAIVED the right to argue and rely on this provision because it failed to specifically assert as an affirmative defense that the insured failed to satisfy conditions precedent under the policy. The defense of noncompliance with a conditions precedent — this this case, the insured’s failure to exhaust the other insurance–must be pled specifically as an affirmative defense. The insurer’s failure to properly plead this affirmative defense resulted in a waiver of the defense! See Schoeck v. Allstate Ins. Co., 42 Fla.L.Weekly D2182a (Fla. 2d DCA 2017).
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