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Jervis v. Castaneda

Florida Court of Appeals, Fourth District

April 25, 2018

JOHN H. JERVIS and LINDA JERVIS, individually and as husband and wife, Appellants,
v.
JOSE CASTANEDA and GEICO GENERAL INSURANCE COMPANY, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Gregory M. Keyser, Judge; L.T. Case No. 50-2011-CA-006657-XXXX-MB-AE.

          Kara Berard Rockenbach of Link & Rockenbach, P.A., West Palm Beach, Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, Daniel G. Williams of Gordon & Doner, P.A., Palm Beach Gardens, and Jeffrey M. Liggio and Geoff S. Stahl of Liggio Law, P.A., West Palm Beach, for appellants.

          Suzanne Youmans Labrit and James P. Terpening, III of Shutts & Bowen LLP, Tampa, Francis A. Zacherl, III of Shutts & Bowen LLP, Miami, and Amber Stoner of Shutts & Bowen LLP, Tallahassee, for appellees.

          GROSS, JUDGE.

         The core issue in this case is whether an insurance company that completely fails to comply with the written notice provisions of section 627.727(1) & (9), Florida Statutes (2010), [1] is entitled to establish that an insured knowingly rejected stacked coverage or knowingly accepted non-stacked uninsured motorist coverage. We hold that the failure to serve the mandatory notice precludes the insurance company from claiming that the insured orally made a knowing choice regarding the stacking of UM coverage.

         Appellant John Jervis purchased uninsured motorist coverage from Geico General Insurance, Co. for two vehicles. He completed an online form which, in the circuit court, Geico argued was an election of non-stacked coverage. The first circuit judge assigned to the case ruled on summary judgment that Geico's online form was void; the form was not actually signed by Jervis, Jervis had no ability to reject or deselect non-stacked coverage, and the signing page did not have the warning language required by statute. The judge ruled:

The Court has determined as a matter of law that the documentation used by GEICO does not comport with Florida statute 627.727 which requires that the insured be provided a form that in twelve (12) point type contains certain warnings. It further provides that this form is to be signed by the insured. If it is signed, then it is conclusively presumed that there was an informed knowing of rejection of coverage or election of lower limits. The court finds that the form containing the twelve (12) point bold type was not actually signed by the insured. The page on which the act of signing took place did not have any required warning language. It incorporated the warning by reference. It was not electronically possible to actually sign on the M9 form. One must sign on a precursor screen.
Therefore the M9 waiver of uninsured motorist coverage is void.
Secondly, the signer had no electronic ability to deselect the form's preselected waiver of stacked UM coverage. By law the presumption is that there is no waiver but this form defeats the presumption. The insured's only choices were to passively accept or else to cancel.
Therefore the M9 waiver of uninsured motorist coverage is void.

         Geico has not challenged this order on appeal. After summary judgment was granted, Geico amended its affirmative defenses to assert that Jervis "made an oral rejection of stacked UM coverage."

         The case went to a jury trial on the oral rejection issue and the jury ruled in favor of Geico.

         Section 627.727, Florida Statutes, lays certain ground rules for UM coverage. Subsection 627.727(1) sets the parameters for an insured's written rejection of UM coverage or selection of lower uninsured limits than the bodily injury liability limits of a policy. In great detail, the statute sets out the ...


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