Ronnie WOODALL, et ux., Petitioners, v. TRAVELERS INDEMNITY COMPANY, Respondent, 699 So. 2d 1361

GRIMES, Justice. We have for review a decision certifying the following question as one of great public importance: Whether the holding in [State Farm Mutual Automobile Insurance Co. v. Kilbreath, 419 So.2d 632 (Fla.1982),] applies when a plaintiffs UM policy contains a no-action/exhaustion clause providing that payment will be made only after the limits of liability have been used up under all applicable bodily injury liability policies. Woodall v. Travelers Indemnity Co., 695 So.2d 735 (Fla. 1st DCA 1996). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Because of the manner in which this case was argued, we rephrase the question as follows: Whether the holding in State Farm Mutual Automobile Insurance Co. v. Kilbreath, 419 So.2d 632 (Fla.1982), still applies to underinsured motorist claims. If so, what is the effect of a no-action/exhaustion clause in a plaintiffs UM policy providing that payment will be made only after the limits of liability have been used up under all applicable bodily injury liability policies? The facts giving rise to this case are as follows.

On December 15, 1987, Ronnie Woodall was injured when his motor vehicle was struck from behind by a motor vehicle operated by John D. Stewart, Jr. Stewart had bodily injury liability insurance coverage of $10,000. Woodall and his wife were insured by Travelers Indemnity Company with uninsured motorist coverage applicable to the accident of $60,000. On September 9, 1993, almost six years after the accident, Stewart’s insurance carrier tendered its $10,000 liability limits to the Woodalls.

Four days later, the Woodalls requested authorization from Travelers to accept the $10,000 offer in settlement of the claim against Stewart. On November 12, 1993, Travelers advised the Woodalls that no underinsured motorist claim was possible because the statute of limitations had expired. Shortly thereafter, the Woodalls filed suit against Travelers for recovery of under-insured motorist benefits. The trial court entered

summary judgment in favor of Travelers on the ground that the suit was barred by the statute of limitations. The First District Court of Appeal affirmed the judgment on the authority of State Farm Mutual Automobile Insurance Co. v. Kilbreath, 419 So.2d 632 (Fla.1982), in which this Court held that a “cause of action for an uninsured/underin-sured motorist claim” arises on the date of the accident “since the right of action stems from the plaintiffs right of action against the tortfeasor.” Id. at 633.

However, the district court of appeal questioned whether the rule of Kilbreatk would apply in this case, because the Travelers policy contained a provision that payment would be made only after the limits of liability had been used up under all applicable bodily injury liability policies.

The Woodalls initially argue that unlike uninsured motorist claims, causes of action for underinsured motorist claims do not arise until either (1) the tortfeasor’s liability carrier agrees to a settlement which would not fully satisfy the personal injury claim or (2) the underinsured motorist carrier breaches the contract of insurance by denying the claim. They contend that

section 627.727(6), Florida Statutes (1987), enacted subsequent to the Kilbreath accident but before the Woo-dalls’ accident, rendered Kilbreatk inapplicable to underinsured motorist cases.

Section 627.727(6) reads as follows:

(6) If an injured person or, in the case of death, the personal representative agrees to settle a claim with a liability insurer and its insured for the limits of liability, and such settlement would not fully satisfy the claim for personal injuries or wrongful death so as to create an under-insured motorist claim against the underin-sured motorist insurer, then such settlement agreement shall be submitted in wilting to the underinsured motorist insurer, which shall have a period of 30 days from receipt thereof in which to agree to arbitrate the underinsured motorist claim and approve the settlement, waive its sub-rogation rights against the liability insurer and its insured, and authorize the execution of a full release.

If the underinsured motorist insurer does not agree within 30 days to arbitrate the underinsured motorist claim and approve the proposed settlement agreement, waive its subrogation rights against the liability insurer and its insured, and authorize the execution of a full release, the injured person or, in the case of death, the personal representative may file suit joining the liability insurer’s insured and the underinsured motorist insurer to resolve their respective liabilities for any damages to be awarded; however, in such action, the liability insurer’s coverage must first be exhausted before any award may be entered against the underin-sured motorist insurer, and any such award against the underinsured motorist insurer shall be excess and subject to the provisions of subsection (1).

Any award in such action against the liability insurer’s insured is binding and conclusive as to the injured person and underinsured motorist insurer’s liability for damages up to its coverage limits. The Woodalls argue that pursuant to

section 627.727(6), a cause of action against an underinsured motorist carrier does not arise until it is “created” by a settlement with the liability carrier. The Woodalls suggest that it is only when the liability insurer tenders the full limits of liability and the injured party agrees to accept such limits that the status of the injured person as being under-insured is established. Under the Woodalls’ theory, if the tortfeasor’s liability carrier refused to settle, a cause of action would never be “created.” A statute should not be interpreted so as to lead to an absurd result.

We cannot think of any policy reason why a cause of action for an underinsured motorist claim should accrue at a different time from when it accrues for an uninsured motorist claim. The philosophy behind both is to provide an alternative source of revenue to compensate for the inadequacy of the tortfeasor’s liability coverage. We interpret

section 627.727(6) as merely setting forth a procedure to be followed when a claimant settles with the tort-feasor’s liability carrier. Moreover, it is well established that an injured party may directly pursue a claim against its underinsured motorist earner, without having to first resolve the claim against the tortfeasor’s liability carrier. Weinstein v. American Mut. Ins. Co., 376 So.2d 1219 (Fla. 4th DCA 1979); Liberty Mut. Ins. Co. v. Reyer, 362 So.2d 390 (Fla. 3d DCA 1978); Arrieta v. Volkswagen Ins. Co., 343 So.2d 918 (Fla. 3d DCA 1977). Nothing in

section 627.727(6) purports to change this. Thus, even though the cause of action for an underinsured motorist claim accrues on the date of the accident, a claimant need not run the risk of having the statute of limitations run while waiting for the tortfeasor’s liability carrier to respond. We therefore conclude that under Kilbreath, the Woodalls’ underinsured motorist claim accrued on the date of the accident.

We now turn to those portions of the Travelers policy referred to by the court below, which read as follows: We will pay damages that the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury suffered by the insured and caused by accident. Liability for such damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle. We will make payment under this coverage only after the limits of liability have been used up under all applicable bodily injury liability bonds or policies. (Emphasis added.) A separate

section entitled “General Conditions” contained the following provision: Legal action may not be brought against us under any coverage provided under this policy, unless the insured has fully complied with all the provisions of the policy. (Emphasis added.) The Woodalls argue that Travelers was not contractually obligated to make payment until the limits of all the bodily injury liability policies had been used up. Accordingly, they contend that they were simply complying with the express language of the policy by filing suit against the tortfeasor in order to collect under the tortfeasor’s liability coverage.

When the tortfeasor’s liability carrier agreed to settle the case, the Woodalls also complied with the requirement of

section 627.727(6) by submitting the settlement to Travelers for its approval. As Travelers made no objection to the settlement, the Woodalls accepted payment of the liability coverage limits and did not seek an award from Travelers until the full limits of the liability coverage were exhausted. Travelers likens the provisions of its policy to the ones addressed by this Court in Kil-breath. Both policies contained a “no-action” clause that prevented any legal action against the insurer unless there had been full compliance with the terms of the policy.

However, the other policy provision at issue in Kilbreath required the underinsured claimant first to attempt to settle the claim and, failing that, to seek arbitration. Kilbreath, 419 So.2d at 634. We held that these were remedies against the insurer and were conditions precedent to an action against the insurer that did not toll the statute of limitations. Id. In contrast, the “exhaustion clause” in this case does not contain a remedy directed toward the insurer.

Rather, it requires a claimant for underinsured motorist benefits to first prosecute a claim against a third party, and there is no guarantee that this condition precedent can be successfully satisfied within the limitations period. Thus, the policy provisions at issue in this case cannot be equated with the ones in Kilbreath. It may be that Travelers intended its exhaustion clause to mean only that its liability for underinsured motorist coverage would be over and above the tortfeasor’s liability limits.

However, we think it more likely that this provision would be read to mean that an injured party must pursue a claim against the tortfeasor before seeking payment from Travelers for underinsured motorist benefits. At best, the provision is ambiguous, and it is well established that ambiguities in the terms of an insurance contract will be construed against the insurer. Travelers Ins. Co. v. Bartoszewicz, 404 So.2d 1053, 1054 (Fla.1981).

Therefore, we hold that the language of the Travelers policy had the effect of tolling the statute of limitations until such time as the Woodalls received payment from Stewart’s (the tortfeasor’

s) liability carrier. We are singularly unimpressed with Travelers’ argument that an insurance policy provision which requires an underinsured motorist claimant first to proceed against the tortfeasor’s liability carrier before pursuing an underinsured motorist claim is against public policy. It is true that in eases in which insurance carriers have attempted to invoke these provisions for their own benefit, such provisions have been held to be against public policy. Weinstein; Reyer.

However, it is quite a different matter to suggest that an insurer may include a provision in its policy and later claim that the insured cannot rely on the terms of that provision because the provision was invalid. Travelers cannot disavow the provisions of its own policy. As restated, we answer the first certified question in the affirmative. As to the second question, we hold that the effect of the no-action and exhaustion clauses was to toll the statute of limitations until the insured settled its claim against the tortfeasor’s liability carrier. We quash the decision below and remand for further proceedings.

It is so ordered. OVERTON, HARDING and WELLS, JJ., concur. ANSTEAD, J., concurs specially with an opinion in which KOGAN, C.J., and SHAW, J., concur. .Section 627.727(3), Florida Statutes (1987), provides that the term "uninsured motor vehicle” includes one for which a bodily injury liability policy has been provided that contains limits which are less than the uninsured motorist coverage limits applicable to the injured person, i.e., an underinsured motor vehicle. The Woodalls' policy contained a similar definition. . We agree with the parties that

section 95.11(2), (6), Florida Statutes (1987), the five-year statute of limitations for actions on written contracts, is the applicable statute of limitations. See Burnett v. Fireman’s Fund Ins. Co., 408 So.2d 838 (Fla. 2d DCA 1982). . Ch. 77-468, § 30, at 2075, Laws of Fla. . The statute as originally enacted used the term "uninsured," but it is clear that the statute was referring to underinsured claims. Any doubt was eliminated when the statute was amended in 1982, substituting the word "underinsured" wherever the word "uninsured” appeared. Ch. 82-243, § 544, at 1555-56, Laws of Fla. .

We reject the Woodalls' contention that under-insured motorist coverage is more analogous to PIP coverage in which the cause of action for PIP benefits arises on the date the insurance contract is breached. State Farm Mut. Auto. Ins. Co. v. Lee, 678 So.2d 818 (Fla.1996). A claim for PIP coverage is a first party contract claim, whereas a claim for uninsured/underinsured motorist coverage is predicated upon the cause of action against the tortfeasor.