Opinion
Case No. 2D19-4046
05-21-2021
STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Appellant, v. Tammy WILSON, Appellee.
Anthony J. Russo and James Michael Shaw, Jr., of Butler Weihmuller Katz Craig LLP, Tampa; and Robert L. Kaleel of Kaleel & Kaleel, P.A., St. Petersburg, for Appellant. Christopher J. Bolduc and Nicholas A. Athanason of Athanason & Bolduc, P.A., St. Petersburg, for Appellee.
Anthony J. Russo and James Michael Shaw, Jr., of Butler Weihmuller Katz Craig LLP, Tampa; and Robert L. Kaleel of Kaleel & Kaleel, P.A., St. Petersburg, for Appellant.
Christopher J. Bolduc and Nicholas A. Athanason of Athanason & Bolduc, P.A., St. Petersburg, for Appellee.
LABRIT, Judge.
This case features a not-uncommon scenario in which the insureds (David Schnitz and Tammy Wilson) purchased non-stacking uninsured motorist (UM) coverage and paid a premium twenty percent lower than what they would have been charged for stacking coverage. After sustaining injuries in an accident with an uninsured motorist, Ms. Wilson sought the more expansive benefits provided by stacking coverage. The trial court erred as a matter of law by granting Ms. Wilson's request, so we reverse the final judgment and remand with instructions to enter judgment for State Farm.
Factual Background and Procedural History
The material facts are undisputed. Ms. Wilson lived with her boyfriend, Mr. Schnitz. State Farm issued an automobile insurance policy to Mr. Schnitz and Ms. Wilson. The policy provided bodily injury liability (BI) coverage with limits of $25,000 per person and provided UM coverage with limits equal to the BI coverage limits.
The policy was renewed, and the declarations page reflects that the renewal policy covered one vehicle, a Ford F-350 truck. In connection with the renewal, Mr. Schnitz signed a UM selection/rejection form in which he selected non-stacking UM coverage. The Office of Insurance Regulation (OIR) had approved this form and—pursuant to section 627.727(9), Florida Statutes (2016) —State Farm's premium rates for non-stacking UM coverage reflect a reduction of at least twenty percent as compared to premium rates for stacking UM coverage. As the declarations page confirms, the renewal policy provided "Uninsured Motor Vehicle Coverage (Non-Stacking )" with coverage limits matching the $25,000 BI coverage limits.
Because the subject policy issued in 2016, the 2016 version of the UM statute applies. See Jervis v. Castaneda, 243 So. 3d 996, 997 n.1 (Fla. 4th DCA 2018).
The policy terms applicable to non-stacking UM coverage contain the following "Other Owned Vehicle" exclusion:
THERE IS NO COVERAGE:
....
2. FOR AN INSURED WHO SUSTAINS BODILY INJURY :
a. WHILE OCCUPYING A VEHICLE OWNED BY YOU OR ANY RESIDENT RELATIVE IF IT IS NOT YOUR CAR .
The policy defines "You" as the named insureds, who are Mr. Schnitz and Ms. Wilson. "Your car" means "the vehicle shown under 'YOUR CAR' on the declarations page," which is the Ford F-350 and no other vehicle.
Mr. Schnitz owned a motorcycle that was not insured under the State Farm policy. While Ms. Wilson and Mr. Schnitz were riding that motorcycle, they were in a crash with an automobile operated by an uninsured/underinsured driver. State Farm denied Ms. Wilson's claim for UM coverage, relying on the Other Owned Vehicle exclusion.
Ms. Wilson sued State Farm, seeking a declaration that the policy provided UM coverage for her injuries and demanding damages in the form of UM benefits. State Farm moved for summary judgment, arguing that (1) pursuant to section 627.727(9) and by virtue of Mr. Schnitz's execution of the OIR-approved selection/rejection form, State Farm was entitled to a conclusive presumption that its insureds had made an informed, knowing acceptance of the limitations of non-stacking UM coverage and (2) the Other Owned Vehicle exclusion in State Farm's Non-Stacking policy precluded coverage for Ms. Wilson's injuries.
The trial court acknowledged that (1) the selection/rejection form had been approved by OIR and signed by Mr. Schnitz and (2) the Other Owned Vehicle exclusion applied since Ms. Wilson was occupying a vehicle "that was owned by another named insured [but that] was not listed on the policy." The court also understood that "direct application of the policy and the statute to the undisputed facts of this case would preclude coverage." Nonetheless, the court denied State Farm's summary judgment motion, reasoning that State Farm was not entitled to the conclusive presumption afforded by section 627.727(9) because the "form did not adequately put Mr. Schnitz on notice of the limitation of coverage for all insureds." More specifically, the court determined "that the selection/rejection form is inconsistent with the policy and would lead the signor to believe that under these facts and circumstances, there would be coverage." State Farm moved for reconsideration, relying upon section 627.727(9) and Larusso v. Garner, 888 So. 2d 712 (Fla. 4th DCA 2004), to argue that the trial court was not empowered to scrutinize the text of the OIR-approved form "for the purpose of invalidating policy language that the court deems inadequately explained in the form." The trial court denied State Farm's motion, stating that applying Larusso would cause "the statute's conclusive presumption of coverage limitations to be an unconstitutional denial of access to the courts." The court then entered a "Partial Final Judgment" declaring that Ms. Wilson was entitled to UM coverage. Because that judgment wasn't an appealable final order, the parties stipulated to entry of a final judgment in Ms. Wilson's favor and against State Farm for the policy limits to obtain immediate review of the coverage determination. This appeal ensued.
See GEICO Gen. Ins. Co. v. Perez, 199 So. 3d 380, 380 (Fla. 3d DCA 2016).
Analysis
The trial court's ruling on State Farm's motion for summary judgment and its construction of the statute and insurance policy are reviewed de novo. State Farm Auto. Ins. Co. v. Lyde, 267 So. 3d 453, 458 (Fla. 2d DCA 2018). Our primary task in statutory construction is to give the statutory text its plain and obvious meaning; we lack "power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power." Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984).
In reviewing the insurance policy, we begin with the principle that an insurance contract is construed "in accordance with its plain language as bargained for by the parties." Lyde, 267 So. 3d at 458 (citing Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000) ); see also Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So. 2d 26, 29 (Fla. 2d DCA 2004) (stating that insurance policies "should receive a construction that is reasonable, practical, sensible, and just"). Exclusion provisions may be construed more strictly than coverage provisions and interpreted in favor of the insured, but this principle only applies if a genuine ambiguity remains after resort to the ordinary rules of construction; it does not empower us to "rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties." Deni Assocs. of Fla. v. State Farm Fire & Cas. Ins. Co., 711 So. 2d 1135, 1138 (Fla. 1998) (quoting State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So. 2d 1245, 1248 (Fla. 1986) ). Ambiguity exists only where policy text is susceptible of more than one reasonable interpretation. Id. Likewise, "ambiguity does not exist merely because an insurance contract is complex and requires analysis to interpret it." Gen. Star Indem. Co., 874 So. 2d at 30 (citations omitted). Lastly, we are not empowered to rewrite an insurance policy to relieve one party from the apparent hardship of an improvident bargain, Green v. Life & Health of Am., 704 So. 2d 1386, 1391 (Fla. 1998), and insurance policies "will not be construed to reach an absurd result." Deni Assocs. of Fla., 711 So. 2d at 1140.
The UM Statutory Framework
To understand why the judgment is erroneous as a matter of law, it is helpful to understand the UM statutory framework pertinent to insureds' decisions to purchase UM coverage (or not) and whether to accept limitations on such coverage. By statutory mandate, UM coverage is required in any automobile insurance policy which provides BI coverage. See § 627.727(1). Until the mid-1980s, mandatory UM coverage was an "all or nothing" proposition—an insured either accepted the coverage or rejected it outright—and an insurer that could not establish a "knowing rejection" of UM coverage (historically, a fact question) was obligated to provide such coverage regardless of whether the insured had actually purchased it. See, e.g., Nationwide Mut. Fire Ins. Co. v. Kauffman, 495 So. 2d 1184, 1187 (Fla. 4th DCA 1986).
In 1982, the legislature amended the UM statute by requiring insureds to reject UM coverage in writing; in 1984, the legislature further amended the statute by creating a conclusive presumption that an insured knowingly rejected UM coverage if the insured signed a form approved by the Insurance Commissioner. As we explained decades ago, these amendments represented the legislature's attempt "to avoid litigation over a 'knowing' rejection by placing far greater emphasis and importance upon the written rejection as a self-proving document." Quirk v. Anthony, 563 So. 2d 710, 714 (Fla. 2d DCA 1990).
Ch. 84-41, § 1(1), Laws of Fla. (corresponds to section 627.727(1) ). In 2003, the legislature changed the term "Insurance Commissioner" to "office" (ch. 2003-261, § 1190, Laws of Fla.), which means the OIR. See § 624.05(3), Fla. Stat. (2016).
In 1987, the legislature again amended the UM statute and authorized insurers to offer limited UM coverage, known as non-stacking coverage, for a reduced premium. Ch. 87-213, § 1, Laws of Fla. (corresponds to section 627.727(9) ); see also Gov't Emps. Ins. Co. v. Douglas, 654 So. 2d 118, 122 (Fla. 1995) (Overton, J., dissenting) ("[ Section 627.727(9) ] was written solely to allow non-stacked [UM] coverage."); see generally Am. S. Home Ins. Co. v. Lentini, 286 So. 3d 157, 161–63 (Fla. 2019) (Muñiz, J., concurring in part) (explaining procedures for limiting UM coverage under section 627.727(9) ). The 1987 amendment enumerated several authorized limitations on UM coverage, including subsection (9)(d) which authorizes non-stacking UM policies to exclude coverage for a named insured who is injured while occupying any vehicle owned by a named insured unless UM coverage was purchased for that vehicle.
The 1987 amendment also included the following text:
In connection with the offer authorized by this subsection, insurers shall inform the named insured, applicant, or lessee, on a form approved by the department, of the limitations imposed under this subsection and that such coverage is an alternative to coverage without such limitations. If this form is signed by a named insured, applicant, or lessee, it shall be conclusively presumed that there was an informed, knowing acceptance of such limitations [on behalf of all insureds].
§ 627.727(9)(e), Fla. Stat. (1987). This statutory text has remained in effect for over thirty-three years, with the only substantive change being the addition of the bracketed text by amendment in 2013. Ch. 2013-195, § 1, Laws of Fla.
In 2003, the legislature changed the term "department" to "office" which means OIR. See supra note 3.
To summarize, section 627.727(1) requires any automobile policy that includes BI coverage to provide stacking UM coverage with limits matching the BI limits. However, insureds may reject UM coverage altogether, select stacking coverage with limits lower than the BI limits as authorized by section 627.727(1), or select the more limited form of non-stacking UM coverage authorized by section 627.727(9). If an insured makes such a choice and does so by signing an OIR-approved form, it "shall be conclusively presumed" that the insured made an "informed, knowing" choice regarding UM coverage "on behalf of all insureds." See §§ 627.727(1), (9).
For purposes of this appeal, the key difference between stacking and non-stacking coverage is that "unlike stacked coverage, non-stacked coverage does not provide coverage for every vehicle that the insured owns—it only provides coverage for the vehicle on which the UM premium was paid." Swan v. State Farm Mut. Auto. Ins. Co., 60 So. 3d 514, 518 (Fla. 3d DCA 2011) (emphasis added); cf. Jervis v. Castaneda, 243 So. 3d 996, 998 n.2 (Fla. 4th DCA 2018) ("Stacking is a judicial creation, based on the common-sense notion that an insured should be entitled to get what is paid for .... Thus, if the insured pays separate premiums for [UM coverage] on separate vehicles, the insured should get the benefit of coverage for each individual premium paid." (emphasis added) (citation omitted)); see also Collins v. Gov't Emps. Ins. Co., 922 So. 2d 353, 355 (Fla. 3d DCA 2006) (recognizing that stacking coverage provides "certain benefits for the twenty percent additional premium even when only one vehicle is owned.")
The Other Owned Vehicle exclusion is particular to non-stacking UM coverage because stacking UM coverage generally follows the insured, not the vehicle, so as to provide coverage even if the insured is injured in a vehicle that is not insured under a UM policy. See Lyde, 267 So. 3d at 459, 460–61. By contrast, non-stacking UM coverage is generally available only for injuries sustained in a vehicle that is listed on the policy and for which the insured paid a premium. Id. As the Fifth District has explained, an Other Owned Vehicle exclusion (which is authorized by subsection 627.727(9)(d)) "has the effect of encouraging the insured to pay a premium for every vehicle owned, or to put it another way, not to allow an insured to purchase one policy and expect all the insured's other vehicles to be covered as well." Auto-Owners Ins. Co. v. Christopher, 749 So. 2d 581, 582 (Fla. 5th DCA 2000).
Subsection 627.727(9)(c) authorizes non-stacking UM coverage to apply as excess coverage when the injured person is occupying a nonhousehold vehicle, but that provision is not applicable here because Mr. Schnitz—a named insured—owned the motorcycle and the Other Owned Vehicle exclusion precludes coverage for injuries sustained while occupying a vehicle owned by a named insured if that vehicle is not listed on the policy.
The Trial Court was Bound by Larusso
As an initial and dispositive point, the trial court reversibly erred by failing to follow Larusso. The facts of Larusso are indistinguishable from those at hand: the insured executed an OIR-approved form selecting non-stacking UM coverage; the insurer issued a policy containing an Other Owned Vehicle exclusion; after the insured's son was injured in a vehicle that was not insured under that policy, the insured sought UM coverage; and the insurer denied the claim, arguing that (1) the conclusive presumption applied since the insured signed an OIR-approved form selecting non-stacking coverage and (2) UM coverage was unavailable because of the Other Owned Vehicle exclusion in the non-stacking policy. Larusso, 888 So. 2d at 716–18. As Ms. Wilson did here, the insured in Larusso argued that the form was ambiguous and insufficient to support a conclusive presumption that he had made "an informed and knowing selection of non-stacked" UM coverage. Id. at 717. The Fourth District reversed denial of the insurer's motion for directed verdict and directed entry of judgment for the insurer. Id. at 716. The court held that because the form undisputedly was approved by OIR and signed by the insured, the insurer was "as a matter of law ... entitled to the statutory conclusive presumption that [the insured's] rejection of stacked coverage was knowingly made." Id. at 718. Because the non-stacking UM policy contained an Other Owned Vehicle exclusion, UM coverage was not available. Id. at 716.
It is well-established that "in the absence of interdistrict conflict, district court decisions bind all Florida trial courts." Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992). Larusso does not conflict with any other district court decision. Thus, the trial court was bound by Larusso and should have followed that precedent to conclude that State Farm was entitled to the conclusive presumption as a matter of law.
The trial court determined that applying Larusso would result in "every insured being denied the ability to present its case in court based on the signing of a form it had no opportunity to challenge either before the administrative body approving the form or before a judge." Accordingly, the trial judge declined to follow Larusso, reasoning that doing so would cause "the statute's conclusive presumption of coverage limitations to be an unconstitutional denial of access to the courts."
Citing this court's decision in Progressive Express Insurance Co. v. Reaume, 937 So. 2d 1120 (Fla. 2d DCA 2006), State Farm argued to the trial court and to this court that Ms. Wilson was required to challenge the form in an administrative proceeding before OIR prior to bringing this suit. The trial judge never addressed this argument. In her brief, Ms. Wilson disagrees that she was required to challenge the form in such a proceeding, necessarily admitting that she did not do so. We express no opinion on this point.
The trial judge's consideration of this constitutional issue was misguided for two reasons. First, neither party's pleadings raised the issue and the Attorney General was not notified of any constitutional challenge pursuant to Florida Rule of Civil Procedure 1.071, so the issue was not properly before the court and is not properly before this court. See Wright v. City of Miami Gardens, 200 So. 3d 765, 781 (Fla. 2016) (Canady, J., concurring) ("Courts should not voluntarily pass upon constitutional questions which are not raised by the pleadings."); Shelton v. Bank of N.Y. Mellon, 203 So. 3d 1003, 1005 (Fla. 2d DCA 2016) (declining to consider constitutional issue because no rule 1.071 notice had been served).
Second, the constitutionality of the conclusive presumption in this context was confirmed long ago in White v. Allstate Ins. Co., 530 So. 2d 967, 969–70 (Fla. 1st DCA 1988) (recognizing that insured may avoid conclusive presumption by alleging forgery, fraud, or trickery in connection with execution of UM rejection form). Accord Liberty Mut. Ins. Co. v. Ledford, 691 So. 2d 1164, 1166 (Fla. 2d DCA 1997). Moreover, caselaw provides numerous examples of situations where insureds avoided the conclusive presumption by challenging the validity of their signatures or the signature process or by establishing that a form was otherwise noncompliant with statutory requirements. See, e.g., Jervis, 243 So. 3d at 997, 999 (holding that because electronic form was "void" due to deficiencies in online signature process, insurer had not provided legally sufficient notice of limitations of non-stacking UM coverage); GEICO Indem. Co. v. Perez, 260 So. 3d 342, 351–52, 352 n.9 (Fla. 3d DCA 2018) (holding that insurer was not entitled to conclusive presumption that insured rejected UM coverage outright where OIR-approved rejection form did not precisely track language specified in section 627.727(1) ); Orion Ins. Co. v. Socias, 513 So. 2d 233, 234 (Fla. 3d DCA 1987) (dismissing insurer's argument that "non-conforming form" supported presumption that UM coverage was rejected); see also Belmont v. Allstate Ins. Co., 721 So. 2d 436, 438 (Fla. 5th DCA 1998) (holding that insurer could not rely on insured's execution of OIR-approved form to establish waiver of stacked UM coverage where insured increased BI limits at renewal and form applied only to renewals at same BI limits); Travelers Ins. Co. v. Quirk, 583 So. 2d 1026, 1028–29 (Fla. 1991) (holding that Class II insured has standing to raise question of whether UM rejection form was executed by named insured).
In short, the trial court should have followed Larusso and concluded that Mr. Schnitz's execution of the OIR-approved selection/rejection form was conclusively presumptive evidence that Mr. Schnitz knowingly accepted the limitations of non-stacking UM coverage. And since—under our own precedent—the Other Owned Vehicle provision unambiguously excludes coverage for Ms. Wilson's injuries, the trial judge should have granted State Farm's motion for summary judgment and entered final judgment for State Farm.
See Lyde, 267 So. 3d at 458–59 (holding that "the plain language" of identical Other Owned Vehicle exclusion in identical State Farm non-stacking policy form precluded coverage for injuries insured sustained in vehicle that wasn't insured under the policy).
Courts Cannot Override OIR-Approved Forms to Avoid Conclusive Presumption
The trial judge's conclusion that the selection/rejection form is ambiguous or otherwise inconsistent with the UM statute and State Farm's policy is an impermissible end-run around a clear legislative mandate. The very purpose of the conclusive presumption is to avoid litigation over the question of whether an insured knowingly accepted the limitations of non-stacking UM coverage. See, e.g., Ledford, 691 So. 2d at 1166 ; Quirk, 563 So. 2d at 714 ; Larusso, 888 So. 2d at 718 n.1 (recognizing potential for "litigation of forms rejecting [UM] coverage in every case in which they are present" if presumption is not enforced where insured signs OIR-approved UM election/rejection form).
The reason the legislature authorized the conclusive presumption only where the insured has signed an OIR-approved form is to preempt litigation that has the goal of second-guessing the substantive validity and legal sufficiency of a form's content. Obviously, insurers rely on such forms to determine premiums and manage risk. As the Fourth District explained in Larusso:
The legislature granted [OIR] the authority to approve or disapprove forms used by each insurance company to offer or limit coverage. Insurance companies rely on [OIR] approval in taking these applications and issuing insurance based upon the rejection of UM protections as indicated on these forms. Lower premiums are charged as a result of such rejections. So that the insurer can adequately establish its risk and charge appropriate premiums, the [l]egislature created a conclusive presumption that the signing of the approved form established a knowing acceptance of the limitations.
Larusso, 888 So. 2d at 718 (emphasis added); see also State Farm Mut. Auto. Ins. Co. v. Parrish, 873 So. 2d 547, 550–51 (Fla. 5th DCA 2004) (stating that despite insured's contention that OIR-approved form was patently ambiguous, insurer "was entitled to rely upon [insured's] signature on the form as a conclusive presumption of the [insureds'] knowing and voluntary waiver of stacking UM coverage"); Mangual v. State Farm Mut. Auto. Ins., 719 So. 2d 981, 983 (Fla. 5th DCA 1998) (rejecting insured's argument that OIR-approved non-stacking selection form was ambiguous and holding that form provided legally sufficient notice of limitations of stacking coverage, including Other Owned Vehicle exclusion authorized by subsection (9)(d)).
Finding purported ambiguity within the OIR-approved form, the trial judge concluded that the form is "not consistent with the statute or with the policy." But the question of whether an OIR-approved form is consistent with the UM statute or with a UM policy is not one for the judiciary. The legislature obviated such inquiries by mandating that if an OIR-approved form disclosing the limitations of non-stacking coverage is signed by an insured, "it shall be conclusively presumed that there was an informed, knowing acceptance of such limitations on behalf of all insureds." § 627.727(9). Judicial disregard of this statutory mandate amounts to an improper appropriation of legislative power, which our constitution forbids. Art. II, § 3, Fla. Const.; cf. Perez, 260 So. 3d at 352 (declining to apply conclusive presumption in UM rejection case because form did not strictly comply with content requirements prescribed in section 627.727(1) ; recognizing that court was not empowered "to make a judicial exception to what the legislature has expressly provided").
The legislature's use of the term "shall" makes it unmistakably clear that the presumption is mandatory, not discretionary. See Citizens Prop. Ins. Corp. v. Trapeo, 136 So. 3d 670, 678–79 (Fla. 2d DCA 2014).
For the same reasons the trial judges in Larusso, Parrish, and Mangual erred by concluding that the insureds were entitled to stacking coverage where they signed OIR-approved forms accepting the limitations of non-stacking coverage, the trial judge here erred by declaring that Ms. Wilson was entitled to stacking coverage. The form at issue disclosed the limitations of non-stacking coverage to the OIR's satisfaction, and it undisputedly was signed by Mr. Schnitz, whose signature bound Ms. Wilson pursuant to the plain text of subsection 627.727(9)(d). Under such circumstances, the trial court was required (and so are we) to apply the conclusive presumption that these insureds knowingly accepted the limitations of non-stacking coverage. As authorized by subsection 627.727(9)(d), those limitations include the Other Owned Vehicle exclusion, the text of which unquestionably precludes coverage in this case under our own precedent. See Lyde, 267 So. 3d at 458–59.
The trial court's declaration indisputably provided stacking coverage, not non-stacking coverage (which is what the insureds accepted and paid for). See Parrish, 873 So. 2d at 550.
The Form is Not Part of the Policy and it Unambiguously Confirms that the Insureds Accepted the Limitations of Non-Stacking Coverage
Ms. Wilson argues that (1) the form is part of the application for insurance, which is in turn part of the policy and (2) the language in the form is inconsistent with the language in the Other Owned Vehicle exclusion, thereby (3) creating an ambiguity that must be resolved in favor of coverage. The trial court applied this analysis to declare that Ms. Wilson was entitled to stacking UM coverage. And that points up a foundational flaw in this construct. The form is not and never would be part of an "application" for stacking UM coverage, for the simple reason that—by operation of section 627.727(1) —stacking UM coverage is the automatic default. In that instance, no selection/rejection form is required; the form only comes into play if an insured does not want stacking UM coverage. See, e.g., Progressive Am. Ins. Co. v. Gregory, Inc., 16 So. 3d 979, 982 (Fla. 3d DCA 2009) (noting that UM selection/rejection form "would be wholly superfluous" if insured had requested stacking coverage). In short, Mr. Schnitz and Ms. Wilson did not "apply" for (and undisputedly did not pay for) stacking UM coverage.
In any event, the form is a statutorily mandated disclosure, not a request for coverage. See Jervis, 243 So. 3d at 999 (stating that UM statute requires certain written information to be provided to insureds "as a mandatory prerequisite to an 'informed' and 'knowing' decision about UM coverage"); see also Mangual, 719 So. 2d at 983 (describing non-stacking coverage selection form as a "notice form"); cf. Smith v. New Hampshire Indem. Co., 60 So. 3d 429, 432 (Fla. 1st DCA 2011) ("[T]he term 'application' is unambiguous. An application in the context of insurance is, by definition, a request for coverage.").
This record also confirms that the form is not part of any application for coverage. First of all, there is no application in the record, and the policy that was in place when the accident occurred was a renewal that went into effect "as of 12:01 A.M." on June 1, 2016; the original policy was issued in July 2015. Mr. Schnitz executed the selection/rejection form on June 1, 2016, which necessarily means he signed the form long after the policy initially became effective and after the renewal policy became effective. It is therefore logically impossible to conclude that the form was part of any application. Moreover, in the context of automobile insurance, "no application process [is] contemplated when a policy is renewed." Smith, 60 So. 3d at 432.
The record does not reveal whether the originally issued policy provided stacking or non-stacking coverage. Section 627.727(9) provides that when an insured has "initially accepted" the limitations of non-stacking coverage by signing an OIR-approved form, "such acceptance shall apply to any policy which renews, extends, changes, supersedes, or replaces an existing policy." Accordingly, if the insureds executed a non-stacking selection form when they applied for the original policy, there would have been no need to execute such a form for the renewal policy. But we cannot discern whether a selection/rejection form was executed in connection with whatever application the insureds may have submitted for the original policy because our record contains no application.
It is true that an insurance policy "shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any application therefor or any rider or endorsement thereto." § 627.419(1), Fla. Stat. (2016). But even if we (1) ignore that no application was required for the renewal, (2) construe the renewal policy as including an application (of which we have no record), and (3) construe this assumed application as including the form, the form cannot "amplify, extend, or modify" the policy, which is limited by its terms to specified documents that do not include an application or a UM selection/rejection form. Furthermore, the form cannot be said to "amplify" or "extend" the non-stacking policy to convert it into a stacking policy. As discussed above, the only reason the form would have been in play was that Mr. Schnitz and Ms. Wilson requested—and State Farm issued—a non-stacking policy; had the insureds requested stacking coverage, no selection/rejection form would have been required, and State Farm would have issued a stacking policy.
The policy states that it "consists of the declarations page, the policy booklet – Form 9810A, and any endorsements that apply."
Ms. Wilson cites Padgett v. Horace-Mann Insurance Co., 704 So. 2d 627 (Fla. 1st DCA 1997), for the proposition that a UM selection/rejection form is part of the application, but Padgett is distinguishable. As a preliminary matter, it appears that the policy in Padgett was an original policy, not a renewal; as the First District later explained in Smith, 60 So. 3d at 432, no application is required to renew an automobile policy. Padgett, 704 So. 2d at 628. Beyond that, the insurer in Padgett combined the application and the form into a single document. Id. This was permissible—but not required—under an informational bulletin from the Insurance Commissioner. As discussed above, the instant policy confirms that it does not include any application or UM selection/rejection form, and since our record does not contain an application for the original policy it is impossible to discern whether a selection/rejection form was executed in conjunction with any such application. Accordingly, Padgett is inapposite.
See FL Informational Bulletin 87-211 (Oct. 16, 1987), available at 1987 WL 1357239 (providing template form for selection of non-stacking coverage and stating that the form could be made part of an application or "used as a separate document for the purpose of informing the insured of his options").
Lastly, for the same reason the Fourth District held that there was no ambiguity in the form at issue in Larusso, there is no ambiguity in the form at issue here. In Larusso, the insured checked boxes both accepting and rejecting UM coverage in the top portion of the form and checked a box selecting non-stacked UM coverage in the lower portion of the form. Larusso, 888 So. 2d at 717. According to the insured, these inconsistencies rendered the form ambiguous and legally insufficient to establish that he made a knowing, informed selection of non-stacking UM coverage. Id. at 717–18. The Fourth District rejected this contention, stating that regardless of ambiguity as to whether the insured "selected [UM] coverage in the upper portion of the form," there was no ambiguity "as to what type of coverage he selected in the lower portion of the form" because he "clearly checked the box for non-stacked [UM] coverage and, in fact, received and remitted the premium for such coverage. Therefore, [the insured] accepted UM coverage and agreed to non-stacked coverage." Id. at 717.
Just like the insured did in Larusso, Mr. Schnitz accepted and agreed to the limitations of non-stacked UM coverage, and there is no ambiguity as to "what type of coverage he selected." Id. Mr. Schnitz checked the box indicating that he chose to "reject the stacking form of Uninsured Motor Vehicle coverage and, instead, select the non-stacking form of Uninsured Motor Vehicle coverage." The form, the renewal declaration, and the policy make plain that the policy provides non-stacking coverage, and the policy unambiguously excludes coverage pursuant to the Other Owned Vehicle exclusion. These documents are susceptible of only one reasonable interpretation: Mr. Schnitz knowingly selected non-stacking coverage. Accordingly, no ambiguity exists and there is no basis upon which to construe the policy against State Farm to provide stacking coverage, which the insureds did not select and for which they paid no premium. Conclusion
Courts cannot deviate from or ignore statutory text, nor may they rewrite an insurance policy to relieve an insured of a bargain that turns out to be improvident. The trial court erred reversibly by doing both. State Farm is entitled—as a matter of law—to a conclusive presumption that its insureds made a knowing, informed acceptance of the limitations of non-stacking UM coverage. And the non-stacking policy State Farm issued unambiguously excludes coverage for Ms. Wilson's injuries as a matter of law. Therefore, the judgment in favor of Ms. Wilson is reversed, and this case is remanded with instructions to enter judgment for State Farm.
Reversed and remanded.
CASANUEVA, J., Concurs specially.
VILLANTI, J., Concurs.
CASANUEVA, J., Concurring specially.
I fully concur with the majority opinion. I write only to provide my thoughts concerning the constitutional issue involving access to the courts, had it been properly brought before the trial court.
Article I, section 21, of the Florida Constitution expressly provides: "The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." In the order denying reconsideration, the trial court concluded that this constitutional provision would be violated by applying the statutory conclusive presumption in the manner suggested by State Farm. One must first determine if that constitutional command has been violated by the statute. And because the question is one of Florida constitutional law, the standard of review is de novo. Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm'n, 838 So. 2d 492, 500 (Fla. 2003).
Writing for the First District, Judge Webster observed that "our access-to-courts provision has its roots in chapter 40 (later recodified as chapter 29) of the Magna Carta" and that some version of the provision "has been a part of every Florida constitution except that of 1868." Henderson v. Crosby, 883 So. 2d 847, 851-52 (Fla. 1st DCA 2004). Our supreme court set forth the following test for analyzing an access to the courts claim:
[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to [section] 2.01, [Florida Statutes ], the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.
Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973).
In Warren v. State Farm Mutual Automobile Insurance Co., 899 So. 2d 1090, 1092 (Fla. 2005), the Florida Supreme Court considered whether a provision in Florida's Motor Vehicle No-Fault Law violated the right of access to the courts by requiring "providers of non-emergency medical services and medical services not provided in and billed by a hospital to submit a statement of charges to insurers within thirty days of service," and the failure to comply resulted in denial of their ability to bring suit for damages. In denying that the provision abridged the constitutional provision, the court stated that it did not "find that Kluger is offended by the thirty-day requirement because the thirty-day requirement does not abolish medical providers' access to the courts. Rather, we agree with the Fifth District that the statute imposes a reasonable condition precedent to filing a claim for certain insurance benefits." Id. at 1097.
This constitutional provision was again, in part, at issue in Weaver v. Myers, 229 So. 3d 1118 (Fla. 2017). There, the appellant asserted that by "placing a prerequisite condition on her action for wrongful death requiring the release of [decedent's] medical records and the facilitation of ex parte, secret presuit interviews with [decedent's] medical providers violates the right to access to courts." Id. at 1125.
Applying the Kluger test, the court found that at common law our State did not recognize a cause of action for the tort of wrongful death but that, by statutory enactment, the legislature authorized such an action prior to 1968. Id. at 1140. Further, it cautioned that, "[a]lthough Kluger spoke in terms of total abolishment of a right, the scope of the protection extends to protect situations in which legislative action significantly obstructs the right of access." Id. Thus, it is not necessary for the procedural hurdle to be an insurmountable obstacle; rather, it may be "one which is significantly difficult." Id. (quoting Mitchell v. Moore, 786 So. 2d 521, 527 (Fla. 2001) ). To require a person to forfeit a constitutional right, in Weaver it was to privacy, constitutes such an obstruction or obstacle. See id.
Here, Ms. Wilson could and did challenge the form, as well as other coverage issues. The statute here is more akin to the condition precedent statute noted in Warren rather than the forfeiture statute of Weaver. Therefore, I would conclude that section 627.727(9) does not violate the right of access to the courts under article I, section 21, of our State's constitution.