District Court of Appeal of Florida, Fourth District.
Robert F. Jordan of Grimmett, Scherer & James, Fort Lauderdale, for appellant.
Wilton L. Strickland of Ferrero, Middlebrooks & Strickland, Fort Lauderdale, for appellee.
BERANEK, Judge.
This is an appeal by an automobile insurer from a final judgment determining available uninsured risk coverage and awarding attorneys' fees. The action below was for declaratory decree and is based on stipulated facts. Appellant raises three points.
Under Point I appellant contends the trial court erroneously stacked coverages. We have reviewed the evidence and the judgment below and find the court's disposition of this point to be without error. The coverages in question were provided under policies under which appellee was in fact an insured. These policies provided a total of $40,000 uninsured motorists coverage.
Appellant's second point challenges the computation of the total insurance fund available to appellee. The trial court found the total uninsured fund available to be $40,000. Appellant claims that the amount of $25,000 which was paid by the negligent tortfeasor under his liability should have been set off. We conclude that appellant is correct in this regard in view of the Supreme Court's decision in Dewberry v. Auto Owners Insurance Company, 363 So. 2d 1077 (Fla. 1978). Thus, the finding by the trial court is reversed and the matter remanded to the trial court to determine the appellant's pro rata share of the available $15,000 in uninsured motorists coverage which the carrier is obligated to pay in accordance with the opinion cited above.
The third and last point raises the issue of attorneys' fees. Appellee was not in fact a contracting insured of appellant and the award of attorneys' fees is, therefore, reversed in light of Roberts v. Carter, 350 So. 2d 78 (Fla. 1977).
The cause is affirmed in part and reversed in part in accordance with the above.
*729 AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH INSTRUCTIONS.
CROSS, J., and SMITH, CHARLES E., Associate Judge, concur.
