O'BRIEN v. State Farm Fire & Cas. Co.

999 So. 2d 1081, 2009 WL 36475
CourtDistrict Court of Appeal of Florida
DecidedJanuary 8, 2009
Docket1D08-0175
StatusPublished
Cited by7 cases

This text of 999 So. 2d 1081 (O'BRIEN v. State Farm Fire & Cas. Co.) 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
O'BRIEN v. State Farm Fire & Cas. Co., 999 So. 2d 1081, 2009 WL 36475 (Fla. Ct. App. 2009).

Opinion

999 So.2d 1081 (2009)

Keith O'BRIEN, individually, and as Personal Representative of the Estate of Meghan M. O'Brien, deceased, Appellant,
v.
STATE FARM FIRE & CASUALTY CO., a foreign corporation, and State Farm Mutual Automobile Insurance Company, a foreign corporation, Appellees.

No. 1D08-0175.

District Court of Appeal of Florida, First District.

January 8, 2009.

*1082 Stephen J. Pajcic, III, Paul A. Shorstein, and Benjamin E. Richard of Pajcic & Pajcic, P.A., Jacksonville, for Appellant.

Reed W. Grimm, Brian E. Currie, and Rhonda B. Boggess of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Appellees.

BENTON, J.

Keith O'Brien appeals the judgment entered in favor of State Farm Fire & Casualty Co. (State Farm), which held that he had no uninsured or underinsured motorist coverage under his State Farm personal liability umbrella policy because he had rejected such coverage at the time he applied for the policy. Deciding cross motions for summary judgment, the trial court concluded that State Farm had complied with section 627.727(2), Florida Statutes. We affirm.

I.

We review de novo a final summary judgment rejecting a claim of uninsured motorist coverage. See State Farm Mut. Auto. Ins. Co. v. Shaw, 967 So.2d 1011, 1014 n. 2 (Fla. 1st DCA 2007) (citing State Farm Mut. Auto. Ins. Co. v. Parrish, 873 So.2d 547, 549 (Fla. 5th DCA 2004)). The sole issue before us is the legal question whether appellant's rejection of uninsured motorist coverage under an umbrella policy in 1992 precluded recovery under the policy on account of his daughter's death in a 2004 automobile accident. See Smith v. Perry, 635 So.2d 1019, 1020 (Fla. 1st DCA 1994).

II.

The facts are not in dispute. When he purchased the umbrella policy in 1992, Mr. O'Brien owned three automobiles, and the umbrella policy covered two members of his household.[1] Between 1992 and 1997, the annual policy premium increased incrementally from $125 to $264. Effective December 16, 1997, the policy was changed from a Class I to a Class II umbrella policy because a youthful driver was added,[2] increasing the annual premium from $264 to $538. In 1999, the premium decreased to $510 based on a decrease in the number of vehicles from three to two. In 2001, the premium increased to $690 as a result of the addition of a second youthful driver and of a third automobile. In 2003, with the addition of a fourth automobile, the premium increased to $1,265. At all times, the policy provided $1,000,000 in personal liability coverage.

When he purchased the umbrella policy from State Farm on October 16, 1992, Mr. O'Brien signed a form application under the following language:

REJECTION OF UNINSURED/UNDERINSURED MOTOR VEHICLE COVERAGE
*1083 In keeping with the laws of my state, I have been offered the opportunity to purchase Uninsured/Underinsured Motor Vehicle Coverage, and I hereby reject the opportunity to purchase this option as part of this application.
[X] I reject Uninsured/Underinsured Motor Vehicle Coverage on all vehicles.
[] I reject Uninsured/Underinsured Motor Vehicle Coverage on recreational vehicles only.
I understand and agree that this acknowledgement of rejection shall be applicable to the policy applied for, all future renewals of the policy and on all replacement policies, until I make written request to add this coverage.

He never sought to rescind this rejection of uninsured motorist coverage under the umbrella policy and never communicated with State Farm on the subject.

At no time after the initial application did State Farm raise or in any way revisit the question of uninsured or underinsured motorist coverage. In making uninsured motorist coverage available to Mr. O'Brien at the time he applied for the umbrella policy in 1992, State Farm complied with one of its obligations under section 627.727(2) (1991). As he was free to do, Mr. O'Brien expressly rejected uninsured motorist coverage at that time. While the statute also requires the insurer to make such coverage available upon the written request of the insured, see § 627.727(2), Fla. Stat. (2003), there is no dispute that Mr. O'Brien never made such a request in the present case.

On the date of his daughter's death, appellant was a named insured on four State Farm automobile policies, as well as on the umbrella policy. Within three months of the accident, State Farm tendered checks for $400,000, the full amount of uninsured motorist coverage under the (stacked) automobile policies. At issue on appeal is the availability of (up to $1,000,000) of excess coverage under the umbrella policy.

III.

Section 627.727, Florida Statutes,[3] governs the extent to which motor vehicle liability insurance policies delivered or issued for delivery in Florida must make uninsured motor vehicle coverage available. The parties agree that subsection (2) applies to umbrella policies and governs the umbrella policy at issue here. See Weesner v. United Servs. Auto. Ass'n, 711 So.2d 1192, 1193 (Fla. 5th DCA 1998) (holding umbrella policy governed by the provisions of section 627.727(2), but not section 627.727(1)); Tres v. Royal Surplus Lines Ins. Co., 705 So.2d 643, 645 (Fla. 3d DCA 1998) (observing that subsection (1) applies to primary policies and "differs substantially" from subsection (2), which "deals with non-primary policies" such as an umbrella policy).

Under section 627.727(2), an excess insurer's only duty with respect to its offer of uninsured motorist coverage is to "make available as a part of the application for such policy, and at the written request of an insured," uninsured motorist coverage in an amount equal to the bodily injury limits contained in the policy or one million dollars. § 627.727(2), Fla. Stat. (2003); see also Tres, 705 So.2d at 645 (observing that "section 627.727(2) does not contain the same requirements" as section 627.727(1), but instead "only requires an issuer of a non-primary policy to notify an applicant of the availability of UM coverage").

*1084 Subsection (1) governs only those policies "which provide[ ] bodily injury liability coverage ... with respect to any specifically insured or identified motor vehicle registered or principally garaged" in Florida.[4] § 627.727(1), Fla. Stat. (2003). Subsection (1) provides the specific form a written rejection of uninsured motorist coverage (or selection of lower uninsured motorist coverage limits than the bodily injury limits provided in the policy) must take[5] and establishes a conclusive presumption that an insured who signs the form has made "an informed, knowing rejection of coverage or election of lower limits on behalf of all insureds." Id. Subsection (1) also requires the insurer to "notify the named insured at least annually of her or his options as to the coverage required by this section." Id.

Subsection (2) explicitly provides that the requirements of subsection (1) do not apply to non-primary policies. See § 627.727(2), Fla. Stat. (2003) ("[T]he provisions of subsection (1) which require uninsured motorist coverage to be provided in every motor vehicle policy delivered or issued for delivery in this state ...

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Cite This Page — Counsel Stack

Bluebook (online)
999 So. 2d 1081, 2009 WL 36475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-state-farm-fire-cas-co-fladistctapp-2009.