NATIONWIDE PROP. & CAS. v. Marchesano

482 So. 2d 422, 11 Fla. L. Weekly 47
CourtDistrict Court of Appeal of Florida
DecidedDecember 20, 1985
Docket85-694
StatusPublished
Cited by15 cases

This text of 482 So. 2d 422 (NATIONWIDE PROP. & CAS. v. Marchesano) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
NATIONWIDE PROP. & CAS. v. Marchesano, 482 So. 2d 422, 11 Fla. L. Weekly 47 (Fla. Ct. App. 1985).

Opinion

482 So.2d 422 (1985)

NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant,
v.
Alfred MARCHESANO and Doris Marchesano, Appellees.

No. 85-694.

District Court of Appeal of Florida, Second District.

December 20, 1985.
Rehearing Denied February 5, 1986.

*423 A.H. Lane and Donald G. Jacobsen of Lane, Trohn, Clarke, Bertrand & Williams, P.A., Lakeland, for appellant.

A.R. Mander, III of Greenfelder & Mander, P.A., Dade City, for appellees.

LEHAN, Judge.

Defendant insurer appeals from a declaratory judgment which found the insurer obligated to provide uninsured motorist coverage to plaintiff insured in the amount of the insured's $100,000/$300,000 bodily injury liability insurance limits notwithstanding the $10,000/$20,000 uninsured motorist limits specified in the insurance policy. We reverse.

The insurer argues on appeal that the declaratory judgment was erroneous because, first, the insured had signed an insurance application form stating that those higher limits were offered but he selected lower $10,000/$20,000 limits, and, second, the insured thereafter received in the mail a notification sent by the insurer pursuant to section 627.727(1), Florida Statutes (1982), in a form approved by the Florida Department of Insurance, informing him of his option to purchase uninsured motorist coverage in an amount up to his bodily injury coverage limits, and he had not exercised the option. The judgment followed special jury verdicts which found that plaintiff did not knowingly reject those higher limits when purchasing the policy and that the insurer gave the insured the foregoing subsequent statutorily required notification. We conclude that the first argument of the insurer does not require reversal but that the second argument does.

We deal initially with the first argument. The portion of the application directly above the insured's signature does reflect that those higher uninsured motorist limits were offered and that the insured selected $10,000/$20,000 limits. But there was testimony by the insured which could have *424 been construed by the jury to say that at the time the insurance was purchased the insurer's agent had, in contravention of the insurer's statutory duty, see Realin v. State Farm Fire & Casualty Co., 418 So.2d 431 (Fla. 3d DCA 1982), failed to inform the insured of the availability of those higher limits and failed to offer those limits and that the insured did not know of them. The insurer argues that, although its agent did not recall the details of his conversation with the insured immediately preceding the signing of the application, there was evidence that the agent's routine business practice was to so inform insureds. However, there was evidence on the basis of which the jury could have concluded that the agent did not entirely follow his routine business practice. That evidence was that the agent, inconsistent with that practice, failed to check boxes on the insurance application to indicate more fully whether or not the customer wished to purchase uninsured motorist coverage of specific limits or whether the customer wished to reject uninsured motorist coverage altogether.

In Jackson v. State Farm Fire & Casualty Co., 469 So.2d 191 (Fla. 2d DCA 1985), we concluded that an insurer may present a prima facie case of no uninsured motorist coverage by introducing evidence of a signed rejection of that coverage. However, in contrast to the facts of the case at hand, the holding for the insurer in Jackson was based upon the premise of there being no relevant evidence, other than the signed rejection form, as to whether or not the insured knowingly rejected uninsured motorist coverage.

The case at hand presents the issue of whether a signed rejection of limits of uninsured motorist coverage equal to the insured's bodily injury liability limits is binding upon an insured who later disavows that rejection when there is no showing of any circumstances which had prevented the insured from reading what he signed. We construe the insured's signed acknowledgment that "Uninsured Motorist Coverage has been explained to me and I understand I can purchase up to $100,000/$300,000 limits" (his bodily injury coverage), which immediately preceded "I wish Uninsured Motorist Coverage with limits of $10,000/$20,000 bodily injury" on the insurance application to be a rejection of such $100,000/$300,000 limits. That is, a rejection of higher limits may consist of a selection of lower limits after receipt of an offer of the higher limits.

We must conclude that the signed rejection in this case was not absolutely binding upon the insured. As the Florida Supreme Court said in Kimbrell v. Great American Insurance Co., 420 So.2d 1086, 1089 (Fla. 1982), "[T]he fact that the insurer maintains in its files evidence of an offer and a selection is relevant but not crucial to a finding that a knowing selection was made." The Third District Court of Appeal in Zisook v. State Farm Mutual Automobile Insurance Co., 440 So.2d 452, 454 (Fla. 3d DCA 1983), said, "An informed rejection of uninsured motor vehicle coverage cannot, without extrinsic evidence, be implied from the insured's signature on the application for uninsured motor vehicle coverage." See also Aetna Casualty & Surety Co. v. Fulton, 362 So.2d 364 (Fla. 4th DCA 1978). We do not conclude that the prima facie evidence of a knowing rejection provided by the written rejection could not be rebutted, as the jury found it was here, by the type of testimony of the insured described above.

We recognize the general principle that in a contract case a person who has signed a document is presumed to have known, and cannot deny, its contents. That principle was followed by the Third District Court of Appeal in Alejano v. Hartford Accident & Indemnity Co., 378 So.2d 104 (Fla. 3d DCA 1979), an uninsured motorist coverage case. However, the Alejano opinion does not show the type of document, or the wording thereof, which was involved.

Kimbrell, Zisook, and Fulton all appear to reflect a perception of legislative intent to place a heavy duty upon insurers to obtain a knowing rejection of statutorily *425 provided for uninsured motorist limits and to reflect a public policy in Florida to favor full uninsured motorist coverage for Florida residents, see also Hodges v. National Union Indemnity Co., 249 So.2d 679 (Fla. 1971), unless knowingly rejected by the insured. Therefore, we believe we may not decide this case strictly under the foregoing general contract principle. If we ruled otherwise we would fail to follow the above quoted dictates of Kimbrell in which the Florida Supreme Court also said, "[t]he question of whether an insured has knowingly rejected uninsured motorist coverage or knowingly selected coverage in a lesser amount than that which the insurer is required to make available is an issue to be decided by the trier of fact." 429 So.2d at 1088. The above described premise of Jackson was that there was nothing, other than a rejection signed by the insured, for the trier of fact to weigh.

Any other result in this case would mean that a signed rejection of the type involved here would be fully dispositive as to there having been a knowing rejection, which would be contrary to the dictates of Kimbrell.

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Bluebook (online)
482 So. 2d 422, 11 Fla. L. Weekly 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-prop-cas-v-marchesano-fladistctapp-1985.