Governmental Agencies With Self-Insured Motor Vehicle Liability Policies With Limits That Are Exhausted

In Michigan Millers Mutual Insurance Co. v. Bourke, 607 So. 2d 418 (Fla. 1992), the school board had in effect a liability insurance policy, and its policy limits of $ 325,000 were exhausted. The issue did not involve a self-insured governmental agency. Rather, the issue was the statutory construction of the words "legally entitled to recover" in section 627.727(1) as related to the limits for judicial recovery against a state agency under section 768.28. This Court only reached the logical conclusion that because the Legislature can pay claims in excess of the limits of section 768.28, sovereign immunity under section 768.28 is not absolute. Id. at 421. The majority's analysis of the effect of holding a self- insured not to be uninsured does not logically follow. Furthermore, this Court held in Allstate Insurance Co. v. Boynton, 486 So. 2d 552 (Fla. 1986), that as a prerequisite to recovering from an uninsured motorist carrier, the policyholder must prove that the tort-feasor is uninsured. Id. at 557. This Court then indicated that this could be done by showing that the tort-feasor "is without insurance or has not complied with the self-insurance provisions of the statutes." Id. at 558. It is apparent to me that the Court did not belabor the point of a self-insured not being uninsured because it saw no need to belabor the obvious. Finally, this Court's decisions in Lipof v. Florida Power & Light Co., 596 So. 2d 1005 (Fla. 1992), and Diversified Services v. Avila, 606 So. 2d 364 (Fla. 1992), do not support the incongruous result that, while a self-insured motor vehicle qualified under section 324.031(4), Florida Statutes, is not an underinsured motor vehicle, the vehicle is an uninsured motor vehicle.