In the District Court of Appeal
First District, State of Florida
_________________________
CASE NO. 1D19-1218
(Circuit Court Case No. 2018-CA-000142)
_____________________
MICHAEL T. HOFFMAN and
GINNIE SUE HOFFMAN,
Appellants,
v.
PROGRESSIVE EXPRESS INSURANCE
COMPANY, an Ohio corporation,
Appellee.
___________________________________________
APPELLEE’S ANSWER BRIEF
___________________________________________
Stuart J. Freeman, Esq.
Florida Bar No. 237493
FREEMAN, GOLDIS & CASH, P.A.
Counsel for Appellee
2553 First Avenue North
St. Petersburg, FL 33713
Telephone: (727) 327-2258
Facsimile: (727) 321-2497
Email: stuart.freeman@fgclawfirm.com
Filing # 98259114 E-Filed 11/01/2019 03:11:26 PM
RECEIVED, 11/01/2019 03:12:31 PM, Clerk, First District Court of Appeal
i
TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................... i
TABLE OF CITATIONS ...................................................................................ii
PRELIMINARY STATEMENT .......................................................................... 1
STATEMENT OF THE CASE AND OF THE FACTS ....................................... 2
SUMMARY OF ARGUMENT ........................................................................... 4
ARGUMENT ..................................................................................................... 8
The Trial Court Did Not Err In Granting Judgment For Progressive Because
The Hoffmans Selected Non-Stacked Uninsured Motorist Coverage. ........... 8
A. In Using the Term “Elect,” Progressive’s Non-Stacking Policy Did
Clearly Prohibit UM Recovery When the Hoffmans Received Coverage
Under Their Separate Stacking Policies. ..................................................11
B. The Statute Permits Progressive to Restrict Non-Stacking UM Coverage
When Payment Was Received on Other Insurers’ Stacking Policies. .....27
CONCLUSIO
N ................................................................................................ 30
CERTIFICATE OF SERVICE .......................................................................... 30
CERTIFICATE OF COMPLIANCE ................................................................. 31
ii
TABLE OF CITATIONS
CASES
Akel v. Dorcelus, 793 So. 2d 1049 (Fla. 4th DCA 2001) ..................... 11, 12, 15, 25
Auto-Owners Ins. Co. v. Christopher, 749 So. 2d 581 (Fla. 5th DCA 2000) ..........17
Coleman v. Fla. Ins. Guar. Ass'n, 517 So. 2d 686 (Fla. 1988) ......................... 15, 19
Collins v. Gov't Emples. Ins. Co., 922 So. 2d 353 (Fla. 3d DCA 2006) .... 17, 20, 21
Geico Indem. Co. v. Perez, 260 So. 3d 342 (Fla. 3d DCA 2018) ............................16
Gov't Empls. Ins. Co. v. Douglas, 627 So. 2d 102 (Fla. 4th DCA 1993) ................10
Gov't Empls. Ins. Co. v. Douglas, 654 So. 2d 118, 121 (Fla. 1995) .......................... 8
Larusso v. Garner, 888 So. 2d 712, 718, 719 (Fla. 4th DCA 2004) .......................17
Manfredi v. State Farm Mut. Auto. Ins. Co., 550 Fed. Appx. 718, 2013 U.S. App.
LEXIS 24928, 2013 WL 6596817 (11th Cir. Dec. 17, 2013) ..............................29
Mangual v. State Farm Mut. Auto. Ins., 719 So. 2d 981, 983 (Fla. 5th DCA 1998)
..............................................................................................................................16
Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229 (Fla. 1971) ....... 10, 15, 16
Nationwide Gen. Ins. Co. v. United Servs. Auto. Ass'n, 715 So. 2d 1119 (Fla. 1st
DCA 1998) ...........................................................................................................26
Padgett v. Horace-Mann Ins. Co., 704 So. 2d 627 (Fla. 1st DCA 1997) ........ passim
Rando v. Gov't Empls. Ins. Co., 39 So. 3d 244, 250 (Fla. 2010) ...................... 11, 27
State Farm Auto. Ins. Co. v. Lyde, 267 So. 3d 453 (Fla. 2d DCA 2018) ......... 14, 15
Swan v. State Farm Mut. Auto. Ins. Co., 60 So. 3d 514 (Fla. 3d DCA 2011) .. 19, 28
FLORIDA STATUTES
Sec. 627.4132 ...........................................................................................................10
Sec. 627.727 ...................................................................................................... 11, 22
iii
Sec. 627.727(1) ........................................................................................................18
Sec. 627.727(9) ................................................................................................ passim
Sec. 627.727(9)(a) ................................................................................. 10, 20, 29, 30
Sec. 627.727(9)(b) ....................................................................................................17
Sec. 627.727(9)(c) ............................................................................................ passim
Sec. 627.727(9)(d) ............................................................................................ passim
Sec. 627.727(9)(e) ....................................................................................................20
1
PRELIMINARY STATEMENT
Plaintiffs in the underlying action, MICHAEL T. HOFFMAN and GINNIE
SUE HOFFMAN, shall be referred to as Appellants.
Appellant, PROGRESSIVE EXPRESS INSURANCE COMPANY, shall be
referred to as Appellee or “Progressive.”
References to the Initial Brief of Appellants are designated by “IB. [page
number(s)]”.
The following symbols will be used:
Record on Appeal -- (R: [page number(s)])
Supplemental #1 Record on Appeal – (SR: (R: [page number(s)])
2
STATEMENT OF THE CASE AND OF THE FACTS
Appellee, for the most part, accepts Appellants’ Statement of the Case and of
the Facts, however, wishes to bring to the Court’s attention the following:
Appellants, at p. 5 of their Brief, describe the hearing held by the court on the
parties’ respective Motions for Summary Judgment, Appellants state:
Yet counsel for Progressive conceded that if its policy had been the only
policy paid for by the Hoffmans, coverage would have been required;
by purchasing additional stacking coverage from another insurer,
however, the Hoffmans lost the benefit they paid for from Progressive.
(SR:333) (emphasis added)
(IB. [6])
That suggests that Progressive stated that “by purchasing additional stacking
coverage from another insurer, however, the Hoffmans lost the benefit they paid for
from Progressive.” In point of fact, the transcript of the hearing on the parties’
Motions for Summary Judgment confirms that no such statement was made.
Progressive did argue at the hearing that Appellants should not have the
benefit of a stacking policy considering that they paid for a non-stacking policy,
otherwise there was no point to Sec. 627.727(9)(c). (SR:331)
Moreover, Progressive did argue that it was irrelevant whether the GEICO
policy was stacking or not as such, the applicability of Sec. 627.727(9)(c) is not
determined by whether the second policy was a stacking or non-stacking policy.
(SR:331-332)
3
Finally, Progressive argued that this Court’s prior decision in Padgett v.
Horace-Mann Ins. Co., 704 So. 2d 627 (Fla. 1st DCA 1997), was controlling, stating:
But the Progressive policy and the statute are very clear, and if you’re
the named insured on another policy and you choose that policy, you
don’t recover any benefits under the Progressive policy. That’s what
the statute says, that’s what the First District case says. And I think
based on that, we’re entitled to summary judgment.
(SR:332)
4
SUMMARY OF ARGUMENT
Progressive’s position in this appeal boils down to its assertion that the trial
court properly granted summary judgment to Progressive by correctly interpreting
the provisions of Sec. 627.727(9)(c), Florida Statutes, consistent with this Court’s
opinion in Padgett v. Horace-Mann Ins. Co., 704 So. 2d 627 (Fla. 1st DCA 1997).
(R:280-283)
The Florida Legislature, in 1987, enacted Sec. 627.727(9), Florida Statutes.
That section provides, in pertinent part as follows:
(9) Insurers may offer policies of uninsured motorist coverage
containing policy provisions, in language approved by the office,
establishing that if the insured accepts this offer:
(a) The coverage provided as to two or more motor vehicles shall not
be added together to determine the limit of insurance coverage available
to an injured person for any one accident, except as provided in
paragraph (c).
(b) If at the time of the accident the injured person is occupying a motor
vehicle, the uninsured motorist coverage available to her or him is the
coverage available as to that motor vehicle.
(c) If the injured person is occupying a motor vehicle which is not
owned by her or him or by a family member residing with her or him,
the injured person is entitled to the highest limits of uninsured motorist
coverage afforded for any one vehicle as to which she or he is a named
insured or insured family member. Such coverage shall be excess over
the coverage on the vehicle the injured person is occupying.
(d) The uninsured motorist coverage provided by the policy does not
apply to the named insured or family members residing in her or his
household who are injured while occupying any vehicle owned by such
insureds for which uninsured motorist coverage was not purchased.
5
(e) If, at the time of the accident the injured person is not occupying a
motor vehicle, she or he is entitled to select any one limit of uninsured
motorist coverage for any one vehicle afforded by a policy under which
she or he is insured as a named insured or as an insured resident of the
named insured’s household.
In the instant case. Appellants were occupants of a motor vehicle that they did
not own (also insured by Progressive under a different policy which insured Charles
Hoffman and Hoffman Enterprises) which provided $300,000 in non-stacked
uninsured motorist coverage (R:74-75), when they were involved in an accident with
an uninsured motorist. Appellants, Michael T. Hoffman and/or Ginnie Sue Hoffman,
were named insureds on three policies:
1. The instant Commercial Auto Policy written by Progressive Express
Insurance Company to Michael T. Hoffman, which provided $300,000
in non-stacked uninsured motorist coverage and insuring a 1984
International SS2 (R:19-69, 262),
2. A policy of insurance issued by Allstate Insurance Company to
Ginnie Sue Hoffman insuring two vehicles, a 2013 Toyota RAV4 and
a 1999 Chevrolet Truck S10, which provided $50,000 per
person/$100,000 per accident in stacked uninsured motorist coverage
(R:262, 265-269), and
3. A policy of insurance issued by GEICO, to Michael T. Hoffman and
Ginnie Sue Hoffman, insuring a 2000 Ford SPDTY and a 1989 Jeep
Wrangler, which provided $300,000 per person/$300,000 per accident
in stacked uninsured motorist coverage.
Ultimately both Appellants settled with Progressive (under the policy issued
to Charles Hoffman and Hoffman Enterprises) for $300,000 (R:84), with Allstate for
$100,000, and with GEICO for $600,000. (R:262-263)
6
The instant Progressive policy (R:49-50) and the non-stacked election form
signed by Michael T. Hoffman (R:71-72) contains language that essentially tracks
the language of Sec. 627.727(9)(c). As a result of the Appellants’ settlement with
GEICO for $600,000, Progressive invoked its policy language to deny coverage to
Appellants as they had elected to receive uninsured or underinsured motorist
coverage under a policy of insurance other than the instant Progressive policy.
Appellants argue that the term “elect” is vague and ambiguous, that subsection
(9)(c) is dependent on subsection (9)(a) which they claim is limited to a single policy
by a single insurer insuring multiple vehicles, and that Sec. 627.727(9)(c) does not
apply as the GEICO policy was a stacked policy. As to that last point, Appellants do
concede that Sec. 627.727(9)(c) would apply if the GEICO policy had been a non-
stacked policy (IB. [6]).
Progressive contends that the term “elect” is not ambiguous, that the plain
language of subsections (a) and (c) makes it clear that these subsections are not
limited to a single policy by a single insurer insuring multiple vehicles, and, finally,
that the policy from which an insured has elected to recover uninsured motorist
coverage (in this case the GEICO policy) does not have to be from the same insurer
or be a non-stacking policy in order for Sec. 627.727(9)(c) to apply.
Progressive, moreover, relies heavily on this court’s decision in Padgett v.
Horace-Mann Ins. Co., 704 So. 2d 627 (Fla. 1st DCA 1997), which stated that:
7
We are not persuaded by appellant's argument that section
627.727(9)(c) is intended to be a limitation only on stacking of UM
benefits by a single insurer. In our view, the plain language of that
section supports appellee's position.
Finally, Progressive claims that Sec. 627.727(9) was enacted to make
available to insureds lesser uninsured motorist coverage than had previously been
required under existing statutory and case law. The quid pro quo for allowing lesser
coverage was a requirement that insurers charge a lesser rate for that coverage.
Appellants herein knowingly paid that lesser rate for the instant Progressive policy
and, therefore, should be bound by the law which grants them lesser coverage than
what they would have otherwise been entitled to had they chosen stacked coverage
in the instant Progressive policy.
The trial court correctly analyzed the statute and case law and properly granted
summary judgment to Progressive.
8
ARGUMENT
THE TRIAL COURT DID NOT ERR IN GRANTING JUDGMENT
FOR PROGRESSIVE BECAUSE THE HOFFMANS SELECTED NON-
STACKED UNINSURED MOTORIST COVERAGE.
Initially, Appellee would state that it agrees that the Standard of Review in
this appeal is de novo.
Appellants briefly sets out the history of uninsured motorist coverage in the
State of Florida, in broad strokes, noting that “[i]n 1976, the Legislature prohibited
stacking of coverages but, in 1980, changed its mind as to UM coverage, deleting
that category from its anti-stacking law.” (IB. [10]). Appellants, however, then
incorrectly state that, “[s]ince 1987, Florida law has imposed certain limitations on
non-stacking policies for UM coverage” citing to Sec. 627.727(9)(a) and (c). That is
a mischaracterization of what occurred. What, in fact, occurred was that in 1987, the
Legislature authorized insurance companies, for the first time, to offer policies that
contained a non-stacking, uninsured motorist coverage provision. As stated in the
dissenting opinion in Gov't Empls. Ins. Co. v. Douglas, 654 So. 2d 118, 121 (Fla.
1995):
The history of the statute is set out in the legislative analysis summaries
attached to this dissent and designated appendices A and B. These
summaries explain that the legislature enacted a non-stacking statute in
1976, section 627.4132, that prohibited stacking and applied to all
aspects of motor vehicle coverage but was particularly directed to
uninsured motorist coverage. This statute was amended in 1980 to
exempt the uninsured motorist statutes from the non-stacking
provision. This had the effect of prohibiting non-stacking provisions for
9
uninsured motorist protection. Then, in 1987, section 627.727(9) was
enacted to allow insurance companies to offer their customers policies
that contained a non-stacking uninsured motorist coverage provision
provided that (1) the insurance customers expressly asked for this non-
stacking provision and (2) the insurance customer would in return
receive a premium reduction for uninsured motorist coverage of at least
20%. The statutory provisions in subparagraphs (b), (c), (d), and (e) of
subsection 627.727(9) set out the various coverage alternatives
applicable to an insured who chooses the non-stacked option.
Subparagraph (b) provides that, if the injured person is occupying an
expressly covered vehicle at the time of the accident, the uninsured
motorist coverage is the coverage on that one particular vehicle.
Subparagraph (c) provides that, if the injured person is occupying a
non-owned, non-insured vehicle at the time of the accident, the
uninsured motorist coverage is the highest limits of any one vehicle for
which that person is insured…. (emphasis added).
***
APPENDIX B
The summary of the Senate Staff Analysis and
Economic Impact Statement reads as follows:
A. Present Situation:
***
The "stacking" term has been inappropriately used by many people
when different policies issued to different types of insureds both apply.
A vehicle owner with UM, when a passenger in the vehicle of another
motorist with UM, is entitled to coverage under both policies. Such is
in accordance with each policy's terms; not "stacking" as ordered by the
courts. (emphasis added)
Effect of Proposed Changes:
Section 627.727, F.S., is amended to allow insurers to offer policies of
uninsured motorist coverage containing specific policy provisions that
uninsured and underinsured coverage will not be added together to
10
determine the limit of coverage for any one accident. The uninsured
motorist coverage available to an insured will be the coverage
applicable to the vehicle in the accident. However, if an injured person
is occupying a vehicle which is not owned by him or by a family
member riding with him, he will be entitled to the highest limits of
uninsured motorist coverage for any vehicle as to which he is a named
insured or insured family member. Uninsured motorist coverage will
not apply to any vehicle for which such insurance is not specifically
purchased. (emphasis added)
Staff of Fla. S. Comm. on Com., CS/SB 829 (1987)
Staff Analysis
1-2 (May 25, 1987) (on file at the Florida State Archives).
In the majority opinion in Douglas, the Supreme Court of Florida adopted the
principle enunciated in Justice Shaw’s footnote, in Mullis v. State Farm Mut. Auto.
Ins. Co., 252 So. 2d 229 (Fla. 1971), stating:
We believe the legislature accepted as the prevailing Mullis [v. State
Farm Mut. Auto. Ins. Co., 252 So. 2d 229 (Fla. 1971)] theory the
principle enunciated in Justice Shaw's footnote when it enacted the
1987 amendment to the uninsured motorist statute and, thereby,
changed the state of the law. Pursuant to this amendment, which
became section 627.727(9)(d), Florida Statutes (1987), insurers could
issue motor vehicle liability insurance policies which contained limited
uninsured motorist coverage…
***
As recognized by the Fourth District Court of Appeal [in the case under
review, Gov't Empls. Ins. Co. v. Douglas, 627 So. 2d 102 (Fla. 4th DCA
1993)
], to limit coverage validly, the insurer must satisfy the statutorily
mandated requirement of notice to the insured and obtain a knowing
acceptance of the limited coverage. An insurer who provides coverage
with the section 627.727(9)(d) limitation is also statutorily required to
file revised, decreased premium rates for such policies.
11
It is our opinion that these requirements were the quid pro quo given
by the legislature to insurers for the right to limit uninsured motorist
coverage by this exclusion…. (emphasis added)
The Supreme Court affirmed that holding in Rando v. Gov't Empls. Ins. Co.,
39 So. 3d 244, 250 (Fla. 2010), when it stated:
Thus, Florida law provides a mechanism for insurers to include anti-
stacking provisions in their policies; however, in order to do so, the
insurers must satisfy the requirement of informed consent by the
insured. "It is our opinion that these requirements were the quid pro quo
given by the legislature to insurers for the right to limit uninsured
motorist coverage by this exclusion.” (emphasis added)
A. In Using the Term “Elect,” Progressive’s Non-Stacking Policy Did
Clearly Prohibit UM Recovery When the Hoffmans Received
Coverage Under Their Separate Stacking Policies.
The thrust of Argument A. is that the term “elect” as used in Progressive’s
non-stacking selection form, and in the policy itself, is ambiguous. Appellant then
sets forth various dictionary definitions of the term “elect” which equate that term
with the term “choose.” Progressive has no reason to disagree with those definitions,
however, Progressive vehemently disagrees with the contention that the term “elect”
is ambiguous.
In Akel v. Dorcelus, 793 So. 2d 1049 (Fla. 4th DCA 2001), the court affirmed
a summary judgment granted to Progressive Express Insurance Company (the same
party that is the Appellee herein), which summary judgment had determined that
Progressive’s insured, Akel, was not entitled to uninsured motorist protection under
12
his policy with Progressive. Akel was injured while driving a vehicle owned by his
brother with whom he was living at the time of the accident. His brother’s vehicle
was insured with Allstate which policy provided $25,000 in uninsured motorist
(“UM”) protection. Akel’s own vehicle was insured by Progressive and had
$250,000 in UM coverage. Akel’s vehicle was the only vehicle listed on the
Progressive policy. Akel did not seek UM coverage from Allstate but sought the
higher limits of his Progressive policy.
The Progressive policy at issue in Akel, which is essentially identical to the
Commercial Auto Policy at issue in this case (R:50), provided in pertinent part:
NON-STACKED UNINSURED/UNDERINSURED MOTORIST
COVERAGE
If you have elected Non-stacked Uninsured Motorist Coverage, the
following additional Limits of Liability shall apply:
. . .
Coverage under this Part III is not provided for bodily injury sustained
by any person while using or occupying a motor vehicle, other than a
covered vehicle, owned by you or a relative.
If an insured person sustains bodily injury while occupying a vehicle,
other than a covered vehicle, the insured person may elect to receive
excess uninsured or underinsured motorist benefits under only one (1)
policy of insurance under which the insured person is an insured. If the
insured person elects to receive excess uninsured or underinsured
motorist benefits under a policy of insurance other than this policy, we
will not pay any uninsured or underinsured motorist benefits due to
bodily injury to the insured person. (emphasis added)
The court engaged in a discussion of the election clause, stating:
13
The election clause only applies if coverage is otherwise available.
Obviously, the insured can only elect which coverage to receive if there
are two policies under which the insured may recover benefits. In the
instant policy, not only is the brother's vehicle excluded from the
definition of an uninsured vehicle, but the policy states twice that UM
coverage is not provided for bodily injury sustained while occupying a
motor vehicle owned by the named insured or a resident relative which
is not a vehicle listed in the policy declarations. There was no coverage
under the insured's UM policy provisions; therefore, there was no
election to be made. To interpret the policy as providing coverage under
the election provision, as appellant advocates, would be to negate the
clear and unambiguous exclusionary clauses. Because it is clear that the
contract excludes coverage, we must enforce the contract as written.
(emphasis added)
The court went on to state that the election clause was unambiguous. In fact,
even the dissenting opinion found the election clause to be unambiguous. The court
then discussed an alternative argument made by Progressive stating:
Progressive also claims authority under subsection 627.727(9)(c).
Under that subsection, if the injured person is occupying a vehicle
which is not owned by him or a family member residing with him, the
injured person is entitled to the highest limits of uninsured motorist
coverage afforded to any one vehicle as to which he is a named insured.
In this case, the policy exclusion is but a "variant" of this language.
Under the Progressive policy, coverage is excluded if the injured person
is occupying a vehicle owned by him or a resident family member.
The court concluded by holding, “[b]ecause the exclusions are not ambiguous
and are authorized exclusions under the statute, we affirm the final summary
judgment. The court, therefore, found no coverage under the Progressive policy on
two separate grounds. First, it determined that since coverage was excluded under
section 627.727(9)(d) there was no election to be made. Second, the court found that
14
the permitted Progressive exclusion was a variant of section 627.727(9)(c) and,
therefore, enforceable.
What is significant in this opinion is that the court found the language of
election clause to be unambiguous. What is also significant is that the case involved
two different insurance carriers and the court impliedly held that if there had been
coverage under the Progressive policy, the policy’s requirement that Akel “elect”
coverage from either the Allstate policy or the Progressive policy would have been
valid and consistent with sec. 627.727(9).
In State Farm Auto. Ins. Co. v. Lyde, 267 So. 3d 453 (Fla. 2d DCA 2018), a
mother and daughter lived together with the mother owning a Kia Sorento and the
daughter owning a Kia Soul. State Farm insured the mother, as the only named
insured, under a policy, which provided UM coverage in the amount of $100,000
person. A second State Farm policy insured the daughter that listed both the mother
and daughter as named insureds that had UM coverage in the amount of $25,000 per
person.
The daughter was in an accident in her car with an uninsured motorist. State
Farm tendered its $25,000 under the daughter’s policy but denied coverage under
the mother’s policy. State Farm took the position that there was no coverage based
on its exclusion that essentially stated that there was no coverage because she was
occupying a vehicle that she owned, not the Sorento identified on the declarations
15
page of the mother's policy. The daughter argued, among other things, that the
exclusion was not consistent with section 627.727(9) and, therefore, contrary to
public policy. The court rejected that argument finding that the exclusion was
statutorily authorized and unambiguous, stating:
By limiting UM coverage to the coverage available as to the vehicle
involved and by precluding coverage for injuries sustained while
occupying a vehicle for which UM coverage was not purchased,
subsections 627.727(9)(b) and (d) permit departure from the general
principle, see Coleman, 517 So. 2d at 689; Mullis, 252 So. 2d at 233,
that UM coverage applies to the person. The exclusion in the mother's
policy precludes, in pertinent part, UM coverage for an insured who is
injured while occupying a vehicle that either the mother or the insured
owns but is not the mother's Sorento, which is the only vehicle for
which UM coverage was purchased under the mother's policy. In short,
the exclusion complies with the statute because the mother's vehicle
was the only household vehicle for which the mother paid a premium
under her policy. (emphasis added)
It is undisputed that the Appellants were occupying a vehicle for which they
had not purchased uninsured motorist coverage and that the uninsured motorist
coverage that they had purchased from Progressive was unstacked coverage which
provided them with coverage that was limited by the terms of the policy and
applicable law. Like in Akel and Lyde, the language in the instant Progressive policy
limiting coverage was unambiguous and in full compliance with section
627.727(9)(c).
It should be noted that no specific language is required on either the non-
stacked selection form or in the policy itself. There is no dispute, in this case, that
16
the form used by Appellee had been approved by the Department of Insurance. All
that is required is sufficient notice to the insured of what coverage is being provided.
In Mangual v. State Farm Mut. Auto. Ins., 719 So. 2d 981, 983 (Fla. 5th DCA 1998),
the court stated:
In enacting subsection 627.727(9) the legislature altered the broad
coverage requirements for class I insured persons stated in Mullis v.
State Farm Mutual Auto Ins Co., 252 So. 2d 229, 233 (Fla 1971). The
notice form used by State Farm in this case has been approved by the
Department of Insurance. Although it does not recite subsection (9) in
full, or any of paragraph (d), it nonetheless appears to provide sufficient
notice as to the coverage question at issue by informing Mangual's
parents that if injury occurs in a vehicle owned by a relative who lives
with them, only the policy, if any, on that vehicle applies.
Subsection (9) requires an insurer to explain to the insured the
limitations of non-stacked coverage, but it does not require the insurer
to explain the positives - what stacking is and what benefits it could
afford. Perhaps that would be an impossible task, since even the
appellate courts have had difficulty explaining stacking ramifications.
Yet logically an insured really cannot be said to knowingly give up
rights without knowing what they are.
In any event, the situation involved in this case is simple. Section
627.727(9)(d) permits insurers in this state to issue policies that do not
provide uninsured motorist coverage to the insured or family members
residing in the household who are injured while occupying any vehicle
owned by such insureds for which uninsured motorist coverage was not
purchased….
Likewise, in Geico Indem. Co. v. Perez, 260 So. 3d 342 (Fla. 3d DCA 2018)
, the court noted, at Footnote 8, that “… section 627.727(9) which, unlike section
627.727(1), does not set forth any specific disclaimer language that a UM rejection
form must contain with respect to the various limitations on UM coverage that the
17
insurer may impose in an automobile policy.” Accord Larusso v. Garner, 888 So. 2d
712, 718, 719 (Fla. 4th DCA 2004) (holding that sufficient notice to the insured of
the limitations of the policy were included on the uninsured motorist non-stacking
selection form), and Auto-Owners Ins. Co. v. Christopher, 749 So. 2d 581 (Fla. 5th
DCA 2000) (finding no ambiguity in policy language and noting that the legislature
had specifically approved the exclusion at issue from uninsured motorist coverage).
The use of the word “elect” simply means that if a person, who has selected
non-stacked coverage, thereby paying a lesser premium for that coverage, and who
is not in a vehicle owned by that person, at the time of the accident, then chooses to
receive uninsured motorist coverage under a policy in which that person is a named
insured, that person relinquishes his/her right to uninsured motorist coverage under
the policy for which non-stacked coverage was selected. Appellants, in this case, are
contending that they are entitled to receive the exact same benefits from Progressive
as if they had selected stacked uninsured motorist coverage and had paid a higher
premium for that coverage, albeit only 20% more.
In Collins v. Gov't Emples. Ins. Co., 922 So. 2d 353 (Fla. 3d DCA 2006),
Collins, in a class action suit, contended that “that stacked uninsured motorist
coverage is beneficial to the insured only when the insured owns more than one
vehicle and can then aggregate or "stack" the coverages for each of the vehicles”.
Moreover, that is the circumstance in the instant case wherein only one automobile
18
was insured under the Progressive policy at issue. Significantly, the court stated as
follows:
Collins contended at oral argument that she is entitled to a return of her
stacked uninsured motorist premium for the years she owned only one
automobile. She argues that an insured benefits from stacking only
when the insured can aggregate or stack the coverage from one vehicle
upon another. Therefore, she received no benefit for the additional
premiums she paid. We disagree. It is true that stacked uninsured
coverage enables the insured to stack the coverage for one owned
automobile onto the coverage of another owned automobile. That is not
the only benefit of stacked coverage. Even with one automobile, should
the insured have an uninsured motorist claim, stacked coverage
provides certain benefits above those received with non-stacked.
Section 627.727(9)(a)-(e) delineates the limitations in uninsured
motorist coverage, in addition to the limitation of not being able to stack
the coverage from one vehicle onto another, when non-stacked
insurance is obtained for a twenty percent decrease in premium. When
the insured purchases stacked coverage, the limitations of section
627.727(9)(a)-(e) do not apply thereby giving the insured certain
benefits for the twenty percent additional premium even when only one
vehicle is owned. Therefore, a benefit was received by Collins for the
premiums she paid for stacked coverage. (emphasis added)
That is exactly the situation that presents itself in the instant case. The benefit
received for paying an additional premium to purchase stacked coverage would have
been the right to aggregate the uninsured motorist coverage under the subject
Progressive policy with the uninsured motorist coverage with the GEICO policy and,
for that matter, under the Allstate policy. Appellants chose, however, pursuant to
section 627.727(9), to purchase lesser UM coverage in exchange for a lesser
premium and, therefore, are entitled only to a lesser benefit.
The insureds made a similar argument in Swan v. State Farm Mut. Auto. Ins.
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Co., 60 So. 3d 514 (Fla. 3d DCA 2011). In that case, the insureds owned two
vehicles, a Honda and an Acura, both insured by State Farm but under separate
policies. The Honda policy provided $200,000 in stacked UM coverage, but the
insureds had rejected UM coverage on the Acura. An accident occurred involving
the Honda wherein one insured was seriously injured, and the other insured died.
State Farm tendered $200,000 in UM coverage under the Honda policy but refused
to tender an additional $200,000 under the Acura policy. The trial court entered
summary judgment in favor of State Farm determining that the insureds were not
entitled to an additional $200,000 in UM benefits under the Acura policy because
they had expressly rejected UM coverage on that policy and had not paid any
premiums for UM benefits thereunder.
The court first rejected the argument that the insureds were entitled to
$200,000 in UM benefits from the Acura policy because they had purchased stacked
UM coverage on the Honda policy, stating:
… This, according to appellants, is because the commonly understood
meaning of the word "stacked" presupposes that there are at least two
UM policy limits that will be added together to give greater coverage
than a single policy limit alone. We disagree as this argument conflates
UM coverage, which ensures that the insurer will pay damages for
bodily injuries sustained in an accident with an uninsured motor
vehicle, with aggregating UM policy limits. (bolding in original)
The court, relying on Coleman v. Fla. Ins. Guar. Ass'n, 517 So. 2d 686 (Fla.
1988), held that the insureds “are not entitled to any additional UM benefits from
20
the Acura policy because the [insureds] paid no UM premium on that policy and, in
fact, expressly rejected such coverage.
The court then rejected the insureds’ next argument which was that by not
permitting the [insureds] to aggregate UM benefits in this case, the [insureds] again
received no benefit at all for paying an additional premium for stacked UM coverage
over the less expensive non-stacked UM coverage, stating:
… Not only does this argument reflect a fundamental misunderstanding
of the differences between "stacked" and "non-stacked" UM coverage
as set forth in section 627.727, but it also ignores the fact that this Court
rejected this same argument in Collins [v. Government Employees
Insurance Company] 922 So. 2d at 353.
The court went on to give three possible scenarios involving an accident between a
vehicle owned and occupied by the insureds with a vehicle driven by an uninsured
motorist noting that the third scenario was the one that applied in the case being
decided by the court. The three scenarios were as follows:
• If Mr. Swan had paid a premium for stacked UM coverage on both of
the policies insuring the Honda and the Acura, then it would not matter
which vehicle he and his wife were occupying at the time of the
accident. They would be entitled to recover UM benefits from both
policies under the Florida Supreme Court's Coleman opinion. That is,
they would be able to claim $100,000 per person under the UM
coverage purchased and paid for on the Honda and $100,000 per person
under the UM coverage purchased and paid for on the Acura, for a total
of $400,000.
• If [the insured] had accepted and paid a reduced premium for non-
stacked UM coverage on the Honda, but rejected UM coverage on the
Acura, then he and his wife would only be able to recover $100,000 per
person from the Honda policy if they were occupying the Honda. There
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would be no UM coverage whatsoever if they were occupying the
Acura pursuant to the limitation set forth in section 627.727(9)(d).
• If, as in this case, Mr. Swan paid a premium for stacked coverage on
the Honda but rejected UM coverage on the Acura then it does not
matter which vehicle he and his wife were occupying at the time of the
accident. He and his wife would be entitled to UM benefits under the
Honda policy, even if they were occupying the Acura. However, under
Coleman they would be entitled to receive only $100,000 per person,
for a total of $200,000, under the Honda policy because they only paid
a premium for stacked coverage on that vehicle. The Swans could not
also recover UM benefits under the Acura policy because they rejected
UM coverage and paid no additional premium for it. (bolding in
original) (emphasis added)
The court then stated:
In claiming that [the insureds] received no benefit in purchasing stacked
UM coverage in this case because they were precluded from recovering
an additional $200,000 in UM benefits from the Acura policy,
the [insureds] ignore the second example above, which demonstrates
a very valuable benefit that stacked coverage provides over non-stacked
coverage beyond just the ability to aggregate UM benefits. Indeed, this
Court reached this very conclusion in Collins, where we explained that
even an insured who owns only one automobile receives additional
benefits by paying for stacked coverage….
The court determined that the insureds were not entitled to UM benefits on
the Acura. The instant case is similar, but not identical, but the principal is the same.
In the instant case, Appellants purchased stacked uninsured motorist coverage from
GEICO but elected to purchase non-stacked coverage from Progressive, which, as
noted above, does not provide the same benefits as stacked UM coverage. Whereas
in Swan, the insureds received no benefit from the policy in which they rejected
uninsured motorist coverage, Appellants herein should receive no benefits from the
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policy in which they selected non-stacked uninsured motorist coverage. The
legislature specifically has authorized this result.
Appellants place great weight in their argument upon the fact that the GEICO
and Allstate policies provided stacked coverage as if that somehow determines the
amount of coverage available under the Progressive policy. It does not. The court,
in Swan, rejected the concept that the purchase of stacked, uninsured motorist
coverage on one policy entitles the insured to benefits under another policy when
that insured has rejected UM coverage or, in the instant case, has selected non-
stacked uninsured motorist coverage on the other policy.
To accept the argument that the exclusion at issue in the instant case does not
apply because the Appellants had purchased stacked UM coverage on both the
GEICO and Allstate policies, moreover, undercuts this court’s decision in Padgett
v. Horace-Mann Ins. Co., 704 So. 2d 627 (Fla. 1st DCA 1997). In point of fact,
whether the Horace-Mann policy was a stacking or non-stacking policy makes no
difference. Padgett is a case that is factually almost identical to the instant case. In
Padgett, Padgett sued Horace-Mann Insurance Company alleging that his son was
killed while a passenger in a vehicle being driven by an uninsured motorist. Padgett
had been paid the limits of the driver’s applicable coverage, as well as the UM
benefits from his son’s insurer, Infinity Southern, in the amount of $20,000. He
sought to obtain $10,000 in UM benefits from Horace-Mann. Horace-Mann relied
23
on its insurance application and the provisions of its policy which it claimed
effectuated Sec. 627.727(9)(c), Florida Statutes. The problem with Horace- Mann’s
position, however, was that although it contended that the restrictions in its
application mirrored those found in its policy, they did not. The court found that the
restrictions conflicted and, as a result, found them irreconcilable and, therefore,
ambiguous. That does not change what Progressive contends is the crucial holding
in the case wherein this court stated as follows:
We are not persuaded by appellant's argument that section
627.727(9)(c) is intended to be a limitation only on stacking of UM
benefits by a single insurer. In our view, the plain language of that
section supports appellee's position.
In other words, but for the fact that there was an irreconcilable conflict
between the application and the policy itself, this court presumably would have ruled
in favor of Horace-Mann based upon its interpretation of section 627.727(9)(c).
Appellants, however, claim that this court’s conclusion in Padgett, that Sec.
627.727(9)(c), Florida Statutes, is not limited to stacking of UM benefits by a single
insurer, must have been predicated upon the fact that the Horace-Mann policy was a
non-stacking policy. There is nothing in the Padgett opinion that suggests that
conclusion.
The underlying purpose of Sec. 627.727(9), Florida Statutes, is that in
exchange for the payment of a lesser premium, lesser UM coverage than previously
required, would be provided. The purpose of subsection (c) is to guarantee that a
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person who is involved in an accident with an uninsured or underinsured motorist,
while occupying a vehicle that he or she does not own, is entitled to some excess
uninsured motorist coverage, albeit less than what that person would receive if
he/she had elected to purchase a stacking policy.
Specifically, that person, by statute, is allowed to choose the highest level of
uninsured motorist coverage available to them under any policy in which he/she is a
named insured. The fact that that person may have elected to purchase stacked
coverage under that separate policy does not change the outcome.
Let’s consider a hypothetical. Let’s first assume that the insureds are
occupying a motor vehicle not owned by the insureds, who have purchased non-
stacking coverage on one policy and stacking coverage on another, like in the instant
case. The insureds in the instant case received $600,000 in UM coverage from
GEICO or $300,000 on each of two vehicles. Appellants claim that under that
scenario, which is the scenario in this case, they are also entitled to Progressive’s
$300,000 in non-stacked UM coverage.
What if the GEICO policy was non-stacked and provided $500,000 in UM
coverage on one car. Would it make sense that if Appellants, under this scenario,
accepted the $500,000 that they would then be barred from collecting Progressive’s
$300,000? In other words, whether they recover under the Progressive policy is
dependent on whether the second policy is stacked or non-stacked. Appellants state
25
that it does. In their brief they state:
The Hoffmans asserted that if there were two competing non-stacking
coverages, only then would the election language in the Progressive
policy apply. (SR:330) (IB. [6])
Progressive disagrees and states that whether the second policy is stacking, or
non-stacking should make no difference. In each scenario they purchased non-
stacking coverage on one policy and elected to receive higher benefits from another
policy. The two scenarios should be treated the same.
Appellants argue, with no authority, that they did not elect to receive the
proceeds under the GEICO or Allstate polices because since they were stacking
policies, “they had no power to choose or not to choose them.” (IB. [13]). In other
words, Appellants claim that they were forced to accept GEICIO’s $600,000. Why
is that? They could have elected, although concededly it would have made no sense,
to have rejected the $600,000 in UM benefits under the GEICO policy and have
accepted the $300,000 under Progressive’s policy. Like in Akel, they could have
rejected coverage under one policy and have elected to receive it under another.
Regardless of whether the other policy has stacked or non-stacked coverage,
Progressive should not be in a position of having to pay uninsured motorist benefits
when its insured has knowingly selected non-stacked coverage and its limitations in
coverage that are authorized under the statute.
Section 627.727(9), Florida Statutes¸ states that, “If this form is signed by a
26
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.” In
other words, Appellants knew what they were purchasing. If, hypothetically, the
Appellants had made a claim for UM benefits against Progressive first and had not
advised Progressive that they had elected to receive underinsured motorist benefits
from GEICO, Progressive would have had an obligation to pay those benefits. If,
later, Progressive learned that Appellants had received underinsured motorist
benefits from GEICO, Appellants would be deemed to be in breach of their contract
with Progressive and Progressive would have a claim against Appellants to recover
those benefits.
Typically, in these scenarios, insurance carriers seek to determine what other
insurance polices apply to the loss and to determine, according to the “other
insurance clauses” in the respective policies, how their coverage compares with that
of other insurance carriers, i.e., is it primary, excess or pro-rata. See, e.g. Nationwide
Gen. Ins. Co. v. United Servs. Auto. Ass'n, 715 So. 2d 1119 (Fla. 1st DCA 1998)
(comparing other insurance clauses in policies issued pursuant to sec. 627.727(9),
Florida Statutes). In cases analogous to the instant case, it would not be unusual to
inquire if the insureds intended on making a claim against a policy that obviously
provided higher benefits, and, if so, to then deny coverage based on that
representation.
27
Considering the extent of bad faith litigation in the State of Florida,
Progressive, or any carrier similarly situated, would be hard pressed to deny UM
benefits simply based on an unfounded belief that their insureds might seek those
benefits elsewhere. Appellants’ argument concerning gamesmanship is more
hypothetical than real.
B. The Statute Permits Progressive to Restrict Non-Stacking UM
Coverage When Payment Was Received on Other Insurers’ Stacking
Policies.
Progressive’s policy terms do not run contrary to the statute but mirror the
statute. Appellants claim that Sec. 627.727(9)(a), Florida Statutes, “uses the singular
term ‘coverage’ of two or more vehicles and thus refers to a single carrier’s coverage
of multiple vehicles.” In other words, the section is purportedly limited to multiple
vehicles on policy. Subsection (9)(a) does not state that.
In Rando v. Gov't Empls. Ins. Co., 39 So. 3d 244 (Fla. 2010), the issue before
the Supreme Court was whether the insureds, who were named insureds on two
motor vehicle insurance policies issued by GEICO, could combine the Florida
GEICO policy, which covered two vehicles that were registered and principally
garaged in Florida, with a second Delaware policy that covered one vehicle that was
registered and principally garaged in Delaware. The Supreme Court noted the history
of Sec. 627.727(9), from its enactment in 1987 “to provide specific guidelines for
limiting the scope of uninsured motorist coverage in a given insurance policy.”
28
Ultimately, for reasons not directly relevant here, the Court concluded that the
specific requirements of Sec. 627.727(9), regarding informed consent, applied to
both policies and, therefore, the insureds were entitled to uninsured motorist benefits
from both policies.
Significantly, the Court quoted from the Delaware policy which stated, “If
separate policies with us are in effect for you or any person in your household, they
may not be combined to increase the limit of our liability for a loss.” The Supreme
Court then stated that, “The stacking limitation in subsection (9)(a), which provides
that insurers may issue a policy stating that ‘[t]he coverage provided as to two or
more motor vehicles shall not be added together to determine the limit of insurance
coverage available to an injured person for any one accident,’ is akin to the anti-
stacking provision contained in the Randos’ Delaware policy.” Id at 249. See also
Swan, supra, at 518 (holding that the limitations of § 627.727(9)(a) Fla. Stat. include
the inability to add together (or "stack") the UM liability limits of two or more motor
vehicle policies).
In other words, Appellants’ contention that “Paragraph (a) uses the singular
‘coverage’ of two or more vehicles and this refers to a single carrier’s coverage of
multiple vehicles” is incorrect. It clearly applies to adding together two or more
motor vehicles on different policies, which subsection is then limited by subsection
(c), at issue in this case. By its terms subsection (c) is an exception to the prohibition
29
of adding together the coverage of two or more motor vehicles. By its plain language,
if one purchased non-stacking coverage, adding together the limits of two or more
motor vehicles, only applies when specifically authorized by subsection (c).
As explained by the Eleventh Circuit Court of Appeals in Manfredi v. State
Farm Mut. Auto. Ins. Co., 550 Fed. Appx. 718, 2013 U.S. App. LEXIS 24928, 2013
WL 6596817 (11th Cir. Dec. 17, 2013) , in distinguishing stacked from non-stacked
coverage:
By contrast, "non-stacked" UM coverage applies in a narrower set of
circumstances. In exchange for a less expensive premium, "non-
stacked" UM coverage "only provides coverage for the vehicle on
which the UM premium was paid." As a result, the policy limits of
"non-stacked" UM coverage generally do not "stack" or aggregate
because "non-stacked" UM coverage does not apply "whenever or
wherever" the insured is injured by an uninsured motorist. Rather,
"non-stacked" UM coverage only protects the insured when he or she
is injured while driving the covered vehicle. (emphasis added) (internal
citations omitted).
Finally, Appellants contend that Progressive’s interpretation of the statute to
limiting coverage as permitted by Sec. 627.727(9), Florida Statutes, creates a
windfall. Reducing Progressive’s premium by 20% is what prevents a windfall.
Progressive, as is allowed by law, is providing reduced coverage for a reduced
premium. By virtue of purchasing stacked coverage with GEICO and with Allstate,
Appellants received what they paid for, and by virtue of purchasing non-stacked
coverage from Progressive, Appellants, likewise, got what they paid for. That choice
was made by Appellants.
Stuart J. Freeman
Stuart J. Freeman
Stuart J. Freeman
