November 6, 1990.
Appeal from the Circuit Court for Dade County, Leonard Rivkind, J.
Maguire Friend and Michael P. Maguire, Coral Gables, for appellant.
Bender, Bender, Chandler Adair and George C. Bender, Coral Gables, for appellee.
Before FERGUSON, COPE and LEVY, JJ.
Gita Romano, the insured, appeals an adverse final summary judgment entered in favor of her insurer, Travelers Insurance Company. Under the peculiar circumstances present here, we conclude that the insured's underinsured motorist claim had in essence become moot during the pendency of the proceedings below. In affirming, we do not condone Travelers' handling of the claim.
Travelers initially took the position below that for purposes of underinsured motorist coverage, its insured was bound by the amount of the judgment its insured had obtained against the tortfeasor (less the amount of the tortfeasor's insurance), while simultaneously saying that Travelers was not bound by the same judgment and could relitigate the amount of its own insured's injury. We see no indication that the rule in United States Fidelity Guaranty Co. v. Warmack, 386 So.2d 1284 (Fla. 1st DCA 1980), review denied, 392 So.2d 1381 (Fla. 1981), was intended to be applied in a one-sided manner by an insurer against its own insured.