Allstate Ins. Co. v. Eckert, 84-433

• Decision Date: 03 July 1985
• Docket Number: No. 84-433,84-433
• Citation: 472 So.2d 807,10 Fla. L. Weekly 1649
• Parties: 10 Fla. L. Weekly 1649 ALLSTATE INSURANCE COMPANY, Appellant/Cross-Appellee, v. Edward ECKERT, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 807

472 So.2d 807

10 Fla. L. Weekly 1649

ALLSTATE INSURANCE COMPANY, Appellant/Cross-Appellee, v. Edward ECKERT, Appellee/Cross-Appellant.

No. 84-433.

District Court of Appeal of Florida Fourth District.

July 3, 1985.

Rehearing Denied Aug. 7, 1985.

John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appellant/cross-appellee.

Richard A. Kupfer of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellee/cross-appellant.

DOWNEY, Judge.

This is a timely appeal from a final judgment finding that the amount of available uninsured motorist (U.M.) coverage to the plaintiff under the policy issued by the defendant, Allstate Insurance Company, to its named insured, Andrew Eckert, is in an amount equal to his bodily injury liability limits of $100,000 per person, $300,000 per accident, with two vehicles listed on the policy susceptible of being stacked. The rationale of the final judgment is that Allstate failed to demonstrate compliance with its duty under section 627.727(1), Florida Statutes, to secure an informed rejection of U.M. coverage equal to bodily injury limits.

Eckert filed suit below for declaratory relief and damages against Allstate, alleging that U.M. coverage should have been afforded as ultimately found by the trial court. Allstate claimed that the amount of U.M. coverage available was $15,000 per person and $30,000 per accident, with two vehicles on the policy susceptible of being stacked for a total U.M. coverage of $30,000.

We have reviewed the form used by Allstate and find it adequate to advise an insured of his rights under the statute. Based on the evidence adduced, we believe as a matter of law the trial court should have ruled that Eckert was properly informed and made a knowing rejection. That evidence is that Allstate mailed the subject form to all its insureds, amounting to over 250,000 customers. The first part of the form explained the changes in the uninsured motorist statute and the requirements for rejection. The second part of the form, which was detachable, contained two choices for rejection of the higher limits. In addition, it instructed the insured to contact his agent or the company's nearest office if he had any question concerning the policy. Eckert testified that he returned the tear-off portion of the form with a checkmark in the box indicating he desired no change in his U.M. coverage. He stated that he did not recall receiving the first part of the form. Thus, the narrow question presented to the trial court was whether Eckert received the entire form furnished by Allstate to its customers.

In the face of Allstate's testimony as to its business practice of mailing the form to its insureds, and Eckert's returning a portion of it to Allstate, there is a presumption that Eckert received the entire form and marked it rejecting any increased U.M. coverage. The rule is that, when something is mailed by a business, it is presumed that the ordinary course of business was followed in mailing it and that the mail was received by the...