
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
    No. 76-146.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Rehearing Denied May 4, 1977.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for appellee.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff, Liberty Mutual Insurance Company, appeals a final summary judgment for defendant, Florida Farm Bureau Casualty Insurance Company, in this action to recover a prorata contribution of uninsured motorist coverage from the defendant.

On March 4, 1970 a collision occurred between a vehicle driven by William Mace, an uninsured motorist, and a vehicle operated by Emanuel E. Meyer who was insured by Florida Farm Bureau Casualty Insurance Company. As a result of the accident Isadore Fuss, a passenger in the Meyer car, was fatally injured. Isadore’s widow, Frieda, filed a wrongful death action against Meyer and Florida Farm (case # 70-17752) claiming damages in excess of $19,000. This case was dismissed on May 10, 1971 after Frieda negotiated a settlement for $10,000 and executed a general release on April 29,1971 in favor of Meyer and Florida Farm. Although Isadore was an insured under the uninsured motorist provision of Meyer’s policy, Florida Farm paid nothing to Frieda under this provision. Thereafter Frieda filed a claim under the uninsured motorist provision of her deceased husband’s policy issued by Liberty Mutual Insurance Company. This claim was submitted to arbitration, and on March 1, 1972 the American Arbitration Association awarded Frieda $20,000. On March 27 Liberty Mutual filed a complaint for declaratory judgment (case # 72-6333) seeking to have the $10,000 paid by Florida Farm declared a set-off from the $20,000 arbitration award. By order of September 15,1972 the set-off was denied and the arbitration award affirmed. Thereupon, Liberty Mutual filed the instant complaint against Florida Farm for a prorated contribution from the uninsured motorist provision of Florida Farm’s policy issued to Meyer. After pretrial discovery, Liberty Mutual filed a motion for summary judgment. After a hearing thereon, the trial judge determined that the release and the May 10, 1971 dismissal of Frieda’s action against Florida Farm and Meyer concluded any claims which were or might have been litigated in that action, including any and all claims which Liberty Mutual had or might have had against Florida Farm. The judge then denied Liberty Mutual’s motion for summary judgment and entered summary judgment for Florida Farm. Liberty Mutual appeals. We affirm.

Liberty Mutual did not appeal the September 15, 1972 order finding that the $10,-000 paid Frieda in case # 70-17752 on behalf of Meyer was not a set-off or deduction from the $20,000 arbitration award. Therefore, this issue cannot now be raised. Also, Frieda Fuss never made a claim against Florida Farm for the uninsured motorist benefits provided by the policy issued to Meyer. The case of State Fire & Casualty Co. v. National Indemnity Co., 225 So.2d 570 (Fla. 3d DCA 1969) upon which Liberty Mutual relies is distinguishable from the instant case because in that case the widow of the deceased filed uninsured motorist claims against both insurance carriers and she did not bring a civil action against the insurance carrier with whom she negotiated a settlement. In addition, in the State Fire & Casualty case there was no order dismissing any and all claims which were or might have been litigated.

Affirmed.

HUBBART, Judge

(dissenting):

I must respectfully dissent. Although both Florida Farm and Liberty Mutual are admittedly obligated to pay Mrs. Fuss under the uninsured motorist provisions of their respective insurance policies, only Liberty Mutual has paid. By its decision, the Court has barred Liberty Mutual from now seeking pro rata contribution from Florida Farm. This result is squarely contrary to the decisions of the Supreme Court of Florida in Sellers v. United States Fidelity and Guaranty Co., 185 So.2d 689 (Fla.1966), and Allstate Insurance Co. v. Dairyland Insurance Co., 271 So.2d 457 (Fla.1972).

In Sellers the Court established the principle that there should be pro rata contribution between multiple uninsured motorist carriers for injuries sustained by an insured and caused by an uninsured motorist. The Court stated:

“To recapitulate, if there exists more than one automobile liability insurance policy protecting the same insured, then in case of loss each of the insurers would pro-rate the amount paid to cover the loss of the insured * * * As a practical matter when settlement or recovery of the loss between insured and insurer or insurers is effected it will then be in order for the insurers to make pro-ration inter se * * * This construction requires pro-ration among multiple insurers issuing policies pursuant to F.S. § 627.0851, F.S.A.” Sellers v. United States Fidelity and Guaranty Co., 185 So.2d at 692.

In Allstate Insurance Co. the Court again reaffirmed this principle. An uninsured motorist had caused a collision with a car occupied by a driver and a passenger. The passenger made a claim against the driver’s uninsured motorist carrier and settled for a certain amount of money. This carrier in turn sued the passenger’s uninsured motorist carrier for pro rata contribution. The trial court granted the pro rata contribution, the First District Court of Appeal reversed, and the Supreme Court reversed reinstating the trial court’s judgment. The Court stated:

“In our view, the Sellers decision lays down policy guidelines and an interpretation of the uninsured motorist statute which must govern the result in the instant case. Proration of claims between insurers was suggested in Sellers as a method of carrying out the acknowledged goal of Fla.Stat. § 627.0851 that every policy provide uninsured motorist protection. We took the view in Sellers that in order to most fully effectuate this goal all insurers should share a proportion of the risk, rather than utilizing the conventional method of assigning the entire loss to one ‘primary’ insurer.” Allstate Insurance v. Dairyland Insurance Co., 271 So.2d at 458.

These cases directly control the case at bar. Liberty Mutual and Florida Farm are both uninsured motorist carriers responsible to pay Mrs. Fuss under their respective policies. Yet only Liberty Mutual has paid. Clearly, Liberty Mutual is entitled to a pro rata contribution against Florida Farm.

I am not impressed with the fact that Florida Farm got a full release from Mrs. Fuss and the trial court accordingly dismissed Mrs. Fuss’ lawsuit against Florida Farm. This in no sense decided Liberty Mutual’s right to contribution against Florida Farm. Liberty Mutual was not a party to that litigation and its contribution claim against Florida Farm could hardly be released by Mrs. Fuss nor decided by the court in its order of dismissal.

In State Fire and Casualty Co. v. National Indemnity Co., 225 So.2d 570 (Fla. 3d DCA 1969), this Court held that a similar release from the insured could not bar the second insurance carrier’s right to contribution. An uninsured motorist had caused a collision with a car occupied by a driver and a passenger. The passenger’s widow made an uninsured motorist claim against the driver’s insurance carrier. She settled her claim and issued a general release to that carrier. She later secured an arbitration award from her husband’s uninsured motorist insurance carrier. The latter carrier in turn sought pro rata contribution against the driver’s carrier. The driver’s carrier denied the claim, much as Florida Farm does in this ease, by asserting the widow’s release. This Court flatly rejected the argument and allowed pro rata contribution based on the principle established in the Sellers case.

If anything, the facts of the present case are more compelling than State Fire because here there was never any purported release of the widow’s uninsured motorist claim against Florida Farm. No uninsured motorist claim was ever made against Florida Farm. In State Fire there was such a claim, but quite rightly the Court held that this could not bar the second carrier’s admitted right to contribution. In any event, Mrs. Fuss’ release and the order of dismissal on her claim by the court cannot bar Liberty Mutual’s admitted right to pro rata contribution against Florida Farm.

I am also unimpressed with the fact that Liberty Mutual did not appeal from an adverse decision in its declaratory judgment suit against Mrs. Fuss. That was not a suit for contribution against Florida Farm. It was a suit seeking a set-off or reduction of Mrs. Fuss’ total award against Liberty Mutual. The decree denying such a set-off in no sense decided the contribution issue since it was not involved in the lawsuit. As such, the decree is hardly res judicata or estoppel by judgment against Liberty Mutual’s contribution claim.

The trial court erred in denying Liberty Mutual’s motion for summary judgment seeking a pro rata contribution against Florida Farm. I would accordingly reverse and remand.  