Aug 21 2011
Florida Stacking U.M. Claims – stacking uninsured motorist coverage in Florida Car Accident Law
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 2004
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Appellant,
v. Case No. 5D03-2504
GARY PARRISH AND JOELLEN PARRISH, etc.,
Appellees.
/
Opinion Filed May 21, 2004
Appeal from the Circuit Court
for Brevard County,
T. Michael Barlow, Judge.
F. Bradley Hassell and Thomas C. Smith, Daytona
Beach, for Appellant.
Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain &
Williams, LLP, West Palm Beach, and Robert M.
Moletteire of Graham, Moletteire & Torpy, P.A.,
Melbourne, for Appellees.
PLEUS, J.
State Farm appeals a final declaratory judgment in favor of Gary and Joellen Parrish
as Personal Representatives of the Estate of Bradley Parrish. State Farm claims the trial
court erred in finding that stacking uninsured motorist coverage was available to the Parrishes
under their State Farm policy. The issue is whether the Parrishes knowingly selected nonstacking
uninsured motorist insurance coverage, or, more specifically, whether State Farm
met its burden of proving a non-stacking election.
2
Bradley Parrish was killed by an underinsured motorist in an automobile accident in
1999. Eight years before, in 1991, his parents, Gary Parrish and Joellen Parrish, had
purchased an initial automobile policy from State Farm containing $100,000/$300,000 in
bodily injury limits. The policy did not provide for stacking and limited uninsured bodily injury
to $25,000/$50,000. The policy was renewed annually until the accident. While the Parrishes’
policy also provided for $25,000/$50,000 underinsured motorist coverage, the lower court
found it was impossible to tell definitively from the uninsured motorist (UM) form Mr. Parrish
executed in 1991, whether or not he chose to reject “stacking” UM coverage.
The evidence at trial revealed that the Parrishes went to Eric Ponce’s State Farm
agency to procure insurance coverage after they moved from Broward County to Brevard
County in 1991. When Mr. Parrish explored his insurance options, he learned that his move
would entitle himto a 40 percent savings on his annual insurance costs. The Parrishes both
testified that their primary concern was to procure the same kind of “full coverage” they had
possessed in Broward County, and that cost was notanissue. Eric Ponce’s employee, Pearl
Wentz, met with Mr. Parrish. Unfortunately, long before Bradley Parrish’s death, Ms. Wentz
herself passed away. However, Mr. Ponce testified that he had overheard her meeting with
clients, and that he believed she likely would have discussed UM coverage with Mr. Parrish.
Mr. Ponce’s knowledge of the transaction was based on the office policy and his belief that
Ms. Wentz obtained a knowing waiver from/with the plaintiff; Mr. Ponce never spoke to the
Parrishes directly about their insurance needs. “Stacking” UM coverage, as Mr. Ponce
conceded, was not tremendously more expensive than “non-stacking” coverage.
The real issue in this case boils down to the wayin whichthe application form, filled out
3
in 1991, is checked and whether the check mark creates an ambiguity. The trial court says
it does. We disagree.
Standard of Review
Whenthe interpretationof aninsurance contract is in question, the applicable standard
of review is de novo. Allstate Ins. Co. v. Rush, 777 So. 2d 1027, 1029 (Fla. 4th DCA 2000).
Several rules for insurance policy interpretation were
stated in Roberts v. Florida Lawyers Mutual Insurance Co., 839
So. 2d 843 (Fla. 4th DCA 2003):
The scope and intent of insurance coverage is
defined by the language and terms of the policy.
In construing aninsurance policy, the court should
read the policy as a whole, giving every provision
its full meaning and operative effect. Any
ambiguities in an insurance policy are to be
interpreted liberally and in favor of the insured and
strictly against the insurer. A policy is ambiguous
when the language is subject to “more than one
reasonable interpretation,one providing coverage
and another limiting coverage.”
Id. at 845 (citations omitted).
Larusso v. Garner, 29 Fla. L. Weekly D388, D389 (Fla. 4th DCA Feb. 11, 2004).
Admittedly, this case is unique because the alleged ambiguity is not in the language
of the form, but in the manner in which the form is filled out.
Analysis
Section 627.727, Florida Statutes (1991), requires that all motor vehicle liability
insurance policies thatprovide bodily liability coverage include uninsured motorist coverage.
Under section 627.727(1), the amount ofUMcoverage is equal to the amount of bodily injury
liability purchased by an insured, unless the insured rejects UM coverage or selects lower
4
limits of UM coverage. See Chmieloski v. Nat’l Union Fire Ins. Co., 563 So. 2d 164, 166
(Fla.2d DCA 1990). An insured may reject such coverage in writing, and the insured’s written
rejection constitutes a prima facie showing that uninsured motorist coverage does not apply.
Long v. Prudential Prop. & Cas. Ins., 707 So. 2d 390, 391 (Fla. 5th DCA 1998) (citing
Jackson v. State Farm Fire & Cas. Co., 469 So. 2d 191, 193 (Fla. 2d DCA 1985)). With
regard to the rejection or selection ofUMcoverage, section 627.727(1) specifically provides:
The rejection or selection of lower limits shall be made on a form
approved by the Insurance Commissioner. The form shall fully
advise the applicant of the nature of the coverage and shall state
that the coverage is equal to bodily injury liability limits unless
lower limits are requested or the coverage is rejected. The
heading of the form shall be in 12-point bold type and shall state:
“You are electing not to purchase certain valuable coverage
which protects you and your family or you are purchasing
uninsured motorist limits less thanyour bodily injury liability limits
when you sign this form. Please read carefully.” If this form is
signed bya named insured, it will be conclusively presumed that
there was aninformed,knowing rejection of coverage or election
of lower limits on behalf of all insureds.
Absent exigent circumstances suchas forgery, fraud, or trickery, the insured is deemed to be
bound byhis signature onaninformed rejection form. Long, 707 So. 2d at 391; Nationwide
Mut. Fire Ins. Co. v. Kauffman, 495 So. 2d 1184, 1187 (Fla. 4th DCA 1986).
Here, the insured, Mr. Parrish, signed an approved uninsured motorist coverage
rejection/selection form. However, when the trial court determined that the manner in which
the form was completed created a patent ambiguityonits face,State Farmwasunable to take
advantage of the conclusive presumption of waiver in the statute.
The uninsured motorists rejection/selection form provides:
5
SELECTION/REJECTION OF COVERAGE
Florida Law requires that motor vehicle liability policies include “stacking”
Uninsured Motorist coverage, unless you select “non-stacking” coverage. The
selected coverage must be at limits equal to the Bodily Injurycoverage limits in
your policy unless you select lower limits of coverage. You also have the right
to reject Uninsured Motorist coverage.
9 1. I hereby reject Uninsured Motor Vehicle Coverage.
9 2. I hereby select Uninsured Motor Vehicle Coverage with one or more of
the following reductions:
9 a. I reject the stacking form of coverage and select the nonstacking
form of coverage.
9 b. I select limits of $ / which are lower than my Bodily
Injury Liability limits.
Our review of the form, attached as an exhibit to this opinion, shows the check mark
was in box 2a., and not in between boxes 2a. and 2b., with part of the X lying in both boxes.
Box 2b. is not checked but the numbers 25,000 and 50,000 are selected as the lower limits
of bodily injury protection. The trial court found that the form, as filled out by the parties, had
a patent ambiguity on its face because both boxes 2a. and 2b. would have to have been
checked for the coverages listed in the policy($25,000/50,000 uninsured bodily injury limits).
This is not the case.
Apparently, thismisunderstanding resulted inanincorrect interpretationof the form and
caused the trial court to conclude that an ambiguity existed. The trial court said:
I notice that Plaintiffs’ Exhibit One has Block 2 checked, which
says, Iherebyselect uninsured motorist, uninsured motor vehicle
coverage with one or both of the following rejections. Then there
follows two boxes, A and B. One which rejects stacking, the
other selects lower limits. Only one of those two boxes is
checked.
6
That’s patent ambiguity on the face of the form, because
in order to issue this policy that State Farm issued, both of those
blocks would have had to have applied. There is no indication in
this form, as a matter of fact, that both blocks were selected.
* * *
So, Ido find that there is anambiguity in the election form,
because both boxes are not checked. And indeed, it is unclear
as to whether Box A or Box B or both are indicated. I, therefore,
find thatbecause there is anambiguity in the form, it is nota valid
election form.
We therefore reverse the trial court’s entry of declaratory judgment in favor of the
Parrishes, which found stacking uninsured motorist coverage available under their insurance
policy with State Farm. The trial court erred in finding a patent ambiguity on the face of the
Florida Uninsured Motor Vehicle Coverage-Selection/Rejection Form. State Farm was
entitled to rely upon Mr. Parrish’s signature on the form as a conclusive presumption of the
Parrishes’ knowing and voluntary waiver of stacking UM coverage.
REVERSED.
PETERSON and GRIFFIN, JJ., concur.
7



