5D02-2329 Allstate v. Durham

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-2329

Case Date: 03/10/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2003

ALLSTATE INSURANCE COMPANY, Appellant, v. GEORGIA A. DURHAM, and DARRELL J. DURHAM, her husband, Appellees. ___________________________________/ Opinion filed March 14, 2003 Appeal from the Circuit Court for Brevard County, Kerry I. Evander, Judge. David B. Shelton of Rumberger, Kirk & Caldwell, Orlando, for Appellant. Elizabeth Siano Harris of Stadler & Harris, P.A., Titusville, and Stephen G. Charpentier of Childress & Charpentier, P.A., Melbourne, for Appellees. MONACO, J. Allstate Insurance Company ("Allstate"), appeals the granting of a final summary judgment in favor of the appellees, Georgia Durham and Darrell J. Durham (the "Durhams"), determining that the appellees were entitled to uninsured motorist coverage. Under the peculiar facts of this case, we hold that the Durhams had rejected such coverage and that the judgment should, therefore, be reversed. According to a "Joint Stipulation of Facts" filed by the parties, Allstate first issued a policy of automobile insurance to the Durhams in 1988. The original policy period was for six CASE NO. 5D02-2329

months, and the policy had been continuously renewed every six months since. The policy initially contained provisions for uninsured motorist coverage. In 1991, however, the Durhams expressly rejected this coverage in writing. Twice each year thereafter Allstate provided the notice required by section 627.727(1), Florida Statutes. By 1997, the Durhams owned four vehicles that were insured through their Allstate policy. In September of 1997, the Durhams acquired a fifth vehicle and sought to insure it with Allstate. Allstate required that this fifth vehicle be placed on a separate policy bearing a separate policy number and declaration page. Allstate refers to this as a "multiple record policy." Neither the declaration page for the four-vehicle policy, nor that for the fifth vehicle's policy show that uninsured motorist coverage was elected. It is undisputed that the Durhams were not charged for such coverage under either policy. It is likewise undisputed that the Durhams never rejected uninsured motorist coverage in writing in accordance with section 627.727(1), Florida Statutes (1999), with respect to the policy covering the fifth vehicle. Although it is rather difficult to fathom in this technologically sophisticated age, Allstate's internal computer software apparently only allowed four vehicles per declaration page or policy. The second policy, however, reflected that the Durhams were given the benefit of a multiple car discount, and that there were identical policy limits on all five vehicles. The renewal date on the second policy was changed early on so that both policies would renew at the same time and they were both billed simultaneously on the same statement. The parties stipulated, in fact, that the Durhams had been frequently notified by Allstate that the insurer considered all five vehicles to be covered by a single policy. A letter was sent by Allstate to the Durhams specifically advising that because they owned more than four vehicles, 2

[Y]ou have two sets of policy declarations with two policy numbers. In effect, you have one policy with two policy numbers. Historically when the Durhams sold a covered vehicle, the vehicle insured by the separate policy would be moved to the four-car policy if a replacement vehicle was not insured by the Durhams within a short specified time. These changes were made by endorsement and no new applications were required or taken by Allstate. In 1999, Mrs. Durham was involved in an automobile accident with an uninsured motorist while she was driving one of the vehicles named in the four-vehicle policy. Allstate denied UM coverage because of the 1991 rejection of such coverage under the original policy. The Durhams brought suit against Allstate, positing that since there was no written rejection of UM coverage for the policy covering the fifth vehicle, they were entitled to such coverage by virtue of the mandatory language of section 627.727(1), Florida Statutes. Based on the stipulated facts the trial court granted summary judgment in favor of the Durhams. The court held that the second policy was a separate policy requiring a second specific written rejection of UM coverage by the appellees. We find that we cannot agree with this conclusion. The uninsured and underinsured vehicle coverage statute, section 627.727, Florida Statutes, provides that no motor vehicle liability insurance policy providing bodily injury liability coverage with respect to a vehicle registered or principally garaged in Florida shall be issued unless it provides uninsured motor vehicle coverage. UM coverage may, however, be rejected by the insured. The statute states in pertinent part that: [T]he coverage required under this section is not applicable when, or to the extent that, an insured named in the policy 3

makes a written rejection of the coverage on behalf of all Durhams under the policy.

The statute requires the carrier to notify the named insured at least annually by a form attached to the premium notice of the option to have UM coverage. Simple receipt of the notice is not an affirmative rejection of UM coverage. Importantly for the present case, the statute also states that: Unless an insured, or lessee having the privilege of rejecting uninsured motorist coverage requests such coverage or requests higher uninsured motorist limits in writing, the coverage or such higher uninsured motorist limits need not be provided in or supplemental to any other policy which renews, extends, changes, supersedes, or replaces an existing policy with the same bodily injury limits when an insured or lessee had rejected the coverage.

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