Gallon v. GEICO Gen. Ins. Co., 2D13–2853.

• Decision Date: 12 September 2014
• Docket Number: No. 2D13–2853.,2D13–2853.
• Citation: 150 So.3d 252
• Parties: Eddie GALLON, Appellant, v. GEICO GENERAL INSURANCE COMPANY; and John or Jane Doe, Agent Individually, Appellees.
• Court: Florida District Court of Appeals

150 So.3d 252

Eddie GALLON, Appellant

v.GEICO GENERAL INSURANCE COMPANY; and John or Jane Doe, Agent Individually, Appellees.

No. 2D13–2853.

District Court of Appeal of Florida, Second District.

Sept. 12, 2014.

Rehearing Denied Oct. 16, 2014.

Sanga Turnbull of Smith & Stallworth, P.A., Lakeland, for Appellant.

Jennings L. Hurt III and Meredith M. Stephens of Rissman, Barrett, Hurt, Donahue & McLane, P.A., Orlando, for Appellees.

Opinion

VILLANTI, Judge.

Eddie Gallon seeks review of the order that dismissed his fourth amended multi-count complaint against GEICO General Insurance Company with prejudice. We affirm the dismissal of Gallon's counts for promissory estoppel and negligent procurement without further comment. However, we reverse the dismissal of Gallon's count for negligent misrepresentation and remand for further proceedings.

Gallon was the back seat passenger in his mother's car when she was involved in a single-car accident. Gallon was ejected from the vehicle and severely injured. Gallon's mother, Natalie Gallon, carried automobile insurance on the car with GEICO, including uninsured motorist (UM) coverage, and Gallon made a claim for UM benefits. However, a dispute arose as to the amount of UM benefits available to Gallon. GEICO contended that Gallon was limited to $50,000 in UM benefits, even though there were two vehicles on the policy and the policy indicated that UM coverage was “stacked,” because Mrs. Gallon had purchased UM coverage on only one vehicle. Gallon contended that because the policy provided stacked UM coverage and because there were two vehicles covered by the policy, he should be entitled to $100,000 in UM benefits. When GEICO refused to agree to this amount of coverage, Gallon sued.

In his fourth amended complaint, Gallon asserted a claim for negligent misrepresentation. To state a claim for negligent misrepresentation, the plaintiff must allege—and ultimately be able to prove—that “(1) there was a misrepresentation of material fact; (2) the representer either knew of the misrepresentation, made the misrepresentation without knowledge of its truth or falsity, or should have known the representation was false; (3) the representer intended to induce another to act on the misrepresentation; and (4) injury resulted to a party acting in justifiable reliance upon the misrepresentation.” Baggett v. Electricians Local 915 Credit Union, 620 So.2d 784, 786 (Fla. 2d DCA 1993) (citing Atl. Nat'l Bank of Fla. v. Vest, 480 So.2d 1328, 1331 (Fla. 2d DCA 1985) ). At the motion to dismiss stage, the court is limited to determining whether the complaint on its face contains allegations that are legally sufficient to state a cause of action. See, e.g., Maynard v. Taco Bell of Am., Inc., 117 So.3d 1159, 1160–61 (Fla. 2d DCA 2013) (quoting Reyes ex rel. Barcenas v. Roush, 99 So.3d 586, 589 (Fla. 2d DCA 2012) ). Notably, the court may consider only the legal sufficiency of the allegations and may not determine questions of fact or consider issues of proof or credibility. See Reyes ex rel. Barcenas, 99 So.3d at 589 (noting that the trial court may not determine the veracity of a plaintiff's allegations when considering a motion to dismiss).

In his count for negligent misrepresentation, Gallon alleged that there was a time when Mrs. Gallon's coverage with GEICO had lapsed. When GEICO reissued the policy, the premium was significantly higher. Mrs. Gallon's review of the declarations page showed that GEICO had reissued the policy with stacked UM coverage. Unsure of what that coverage was, Mrs. Gallon claimed she called GEICO and spoke to one of GEICO's agents. Gallon alleged in his complaint that the purpose of the call was so that Mrs. Gallon “could make a decision on whether to continue paying for the coverage or decline it.” GEICO's agent told Mrs. Gallon that paying for the stacked UM coverage would mean that “in the event either of her sons were injured ... GEICO would pay double the stated amount of $50,000/$100,000 on the policy because she had two vehicles insured on the policy.” Gallon alleged that based on this explanation of the coverage, Mrs. Gallon “kept the stacked uninsured motorist coverage and continued paying the listed premium for it.” However, despite this reliance and Mrs. Gallon's payment of the premiums, GEICO denied him the benefits of the stacked UM coverage for which his mother had paid.

A comparison of Gallon's allegations to the elements of a negligent misrepresentation claim shows that Gallon's allegations were legally sufficient. He sufficiently alleged that GEICO's agent made a false statement about the extent of Mrs. Gallon's UM coverage, that GEICO's agent knew or should have known that the statement was false, that the statement was made to induce Mrs. Gallon to keep the coverage and pay the higher premium, and that she was now injured due to her reliance on that misrepresentation. Thus, because these allegations are facially and legally sufficient to state a cause of action, the trial court erred in granting GEICO's motion to dismiss this count.

In this appeal, as it did in the trial court, GEICO argues that this count was properly dismissed because Mrs. Gallon was not entitled to rely on the representations of GEICO's agent as to the scope of her coverage when those representations conflicted with the plain language of the...