5D10-869 Contreras v. 21st Century

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D10-869

Case Date: 02/07/2011

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2011

JOHNNY CRUZ CONTRERAS, Petitioner, v. 21ST CENTURY INSURANCE COMPANY, ETC., Respondent. ________________________________/ Opinion filed February 11, 2011 Petition for Certiorari Review of Decision from the Circuit Court for Seminole County Acting in its Appellate Capacity. Thomas Andrew Player, of Weiss Legal Group, P.A., Maitland, for Petitioner. Randy Fischer and Heather L. Komarnisky, of Boehm, Brown, Fischer, Harwood, Kelly & Scheihing, P.A., Ocala, for Respondent. Case No. 5D10-869

GRIFFIN, J. Petitioner, Johnny Cruz Contreras, seeks certiorari review of a "Decision and Opinion" of a single judge of the Seminole County Circuit Court, sitting in its appellate capacity, affirming the county court's final judgment in favor of Respondent, 21st Century Insurance Company of California, Inc., in the declaratory judgment action that Petitioner filed. Petitioner also seeks certiorari review of the same court's decision to award appellate attorney's fees to Respondent for the circuit court appellate proceeding.

We see no basis to disturb the decision; however, the award of attorney's fees represents clear legal error. In December 2007, Petitioner was injured in an automobile accident. A few days later, Petitioner's counsel sent a letter to Respondent requesting a copy of any rejection of uninsured motorist ["UM"] coverage signed by Petitioner.1 In response to Petitioner's letter, on January 9, 2008, Respondent faxed Petitioner's counsel a copy of the policy declaration page. The policy declaration page indicated that Petitioner's policy

contained no UM coverage. On January 10, 2008, Petitioner's counsel again sent a letter to Respondent requesting a copy of any written rejection of UM coverage signed by Petitioner.

1

Section 627.727(1), Florida Statutes (2007), provides in pertinent part: No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state ... unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required under this section is not applicable when, or to the extent that, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy.

(Emphasis added). With respect to the written rejection of UM coverage, section 627.727(1), Florida Statutes (2007) further requires that specific language be included in any written rejection letter to insure that the insured individual has made "an informed, knowing rejection of coverage. . . ." Florida courts have held that if the insurance company fails to obtain a written rejection, the insured is entitled to uninsured motorist coverage up to the limit of the bodily injury liability coverage provided by the policy. Bell v. Progressive Specialty Ins. Co., 744 So. 2d 1165, 1166 (Fla. 1st DCA 1999). 2

On March 20, 2008, Petitioner's counsel filed an action for declaratory judgment in the county court, pursuant to chapter 86, Florida Statutes. In his complaint, Petitioner alleged the following in pertinent part: 8. On or about January 10, 2008, Plaintiff gave a proper notice of covered loss and made a specific request for a copy of the UM rejection. On January 24, 2008, Plaintiff again requested a copy of the UM Rejection Form from Defendant. However, Defendant failed to provide this document. 9. Section 627.4137, Florida Statutes, reads, to wit: 627.4137 required.-Disclosure of certain information

1) Each insurer which does or may provide liability insurance coverage to pay all or a portion of any claim which might be made shall provide, within 30 days of the written request of the claimant, a statement, under oath, of a corporate officer or the insurer's claims manager or superintendent setting forth the following information with regard to each known policy of insurance, including excess or umbrella insurance: (a) The name of the insurer. (b) The name of each insured . (c) The limits of the liability coverage. (d) A statement of any policy or coverage defense which such insurer reasonably believes is available to such insurer at the time of filing such statement. (e) A copy of the policy. In addition, the insured, or her or his insurance agent, upon written request of the claimant or the claimant's attorney, shall disclose the name and coverage of each known insurer to the claimant and shall forward such request for information as required by this subsection to all affected insurers. The insurer shall then supply the information required in this subsection to the claimant within 30 days of receipt of such request.

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10. Plaintiff, by and through his attorney and pursuant to Florida Statutes and the Policy, sent, by facsimile on January 10, 2008, and on January 24, 2008, his request to the Defendant to provide a copy of the UM Rejection[.] Defendant has refused and/or failed to respond to Plaintiff's request for a copy of the UM Rejection. 11. As a result of Defendant's failure or refusal to respond to Plaintiff's numerous requests for a copy of the UM Rejection, Plaintiff has been placed in doubt as to his right under Florida Statutes, Sections 627.736 and 627.4137, and the Policy, to obtain this information upon request and Defendant's obligation to provide this required information. Petitioner's complaint included a request for attorney's fees pursuant to section 627.428, Florida Statutes. Respondent promptly served its Answer and Affirmative

Defenses, which included as an exhibit a copy of the written UM rejection form signed by Petitioner.2 Respondent incorporated a motion to dismiss or abate within its Answer and Affirmative Defenses. Respondent's motion to dismiss alleged, inter alia, that

Respondent had already produced the UM rejection form prior to the filing of Petitioner's complaint and that it was again producing the requested form with its Answer and Affirmative Defenses. Three months later, Respondent served a motion for attorney's fees and sanctions pursuant to section 57.105, Florida Statutes, again asserting that it had provided the UM rejection form to Petitioner by facsimile on January 22, 2008. Respondent more specifically claimed that the UM rejection form was faxed directly from a computer by a former employee of Respondent named Crystal Pacarro, and the evidence that the form had been provided was a claim file log note.
2

The motion

According to Petitioner, this was the first time that Respondent had produced the signed UM rejection document. 4

purported to attach the claim file log note as exhibit "A," and also to attach an affidavit of an unidentified individual named "Schrieber." However, the alleged exhibits were

neither attached to the motion, nor, apparently, separately filed with the court. According to Petitioner: The exhibits are not listed on the trial court docket, were not part of the record on appeal to the Circuit Court, and do not appear to have ever been before the trial court. As such, there is no record evidence to contradict the affidavit of trial counsel for Petitioner which states that the requested uninsured motorist rejection form was received for the first time after suit was filed. Contemporaneous with its motion for sanctions, Respondent also served a motion for judgment on the pleadings. Respondent's motion for judgment on the

pleadings alleged, as in its motion for sanctions, that the requested UM rejection form was provided both before Petitioner's complaint was filed and after the filing of the complaint. On October 1, 2008, the court heard Respondent's motion for judgment on the pleadings and, on October 15, 2008, entered an order granting the motion. The next day, Petitioner served a "Notice of Confession of Judgment, Motion for Summary Judgment and Motion for Attorney Fees and Costs." Petitioner's motion

argued that the action for declaratory judgment was properly before the court and that Respondent confessed judgment and abandoned all defenses to Petitioner's action for declaratory judgment when it provided, after the lawsuit commenced, exactly that which Petitioner sought in its declaratory action. In addition, Petitioner argued that

Respondent's confession of judgment entitled Petitioner to attorney's fees pursuant to section 627.428, Florida Statutes. Respondent, thereafter, served its response to

Petitioner's motion for summary judgment and incorporated its own motion.

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The trial court heard argument on the parties' competing motions. At the close of the hearing, the trial court denied Petitioner's motion and granted final judgment for Respondent. A review of the hearing transcript reveals that the court was particularly persuaded by Respondent's contention that section 627.4137, Florida Statutes, did not include the UM rejection letter as one of the items required to be produced by a liability insurer upon the request of a claimant. The trial court expressly rejected Petitioner's argument that a written UM rejection letter "is part and parcel of the [insurance] policy." In sum, the trial court found that Respondent had no statutory obligation to provide the written UM rejection form. On December 8, 2008, the trial court entered its "Order on Motion for Summary Judgment/Order on Motion for Attorney's Fees and Costs on Plaintiff Cruz/Final Judgment Denying Declaratory Relief and for a Dismissal" ["Final Judgment"]. In this order, the county court concluded in pertinent part: ORDERED AND ADJUDGED that the Plaintiff CRUZ's Notice of Confession of Judgment is DENIED as moot, it is further ORDERED AND ADJUDGED that Plaintiff CRUZ's Motion for Summary Judgment is DENIED, and it is further ORDERED AND ADJUDGED that Plaintiff CRUZ's Motion for Attorney's Fees and Costs be and is hereby DENIED, and it is further The determination of the Court that no basis exists for any further declaratory relief, that no basis exists for any monetary recovery of a policy benefit, that no obligation exists to produce any UM/UIM form under Florida Statute

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