Witherup v. State Farm Mut. Auto. Ins. Co.
| Decision Date | 05 October 2016 |
| Docket Number | Case No. 3:14–cv–1303–J–32MCR |
| Citation | 214 F.Supp.3d 1272 |
| Parties | Felicia Y. WITHERUP, Individually and Henne C. Witherup, Individually, Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign profit corporation, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Michael Keith Roberts, II, Law Offices of Nooney & Roberts, Jacksonville, FL, for Plaintiffs.
Amy Pietrodangelo Meyer, Florida Department of Health, John Stephen O'Hara, Jr., O'Hara Law Firm, PA, Jacksonville, FL, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Felicia and Henne Witherup were driving their 2007 Mercedes when they were involved in an automobile accident on January 30, 2014 in Jacksonville, Florida. In this declaratory judgment action, the parties seek a determination as to their rights and responsibilities with respect to uninsured motorist coverage for the accident under insurance policies issued to the Witherups by State Farm. The Witherups contend they are entitled to such coverage, while State Farm maintains that the Witherups signed written rejections of uninsured motorist coverage for each of their policies and therefore they had no uninsured motorist coverage at the time of the accident. The case was tried before the Court on April 5, 2016, the record of which is incorporated herein.1 The parties submitted post-trial proposed findings of fact and conclusions of law. The Court then asked for and received supplemental briefing (Docs. 60, 61). The Court has reviewed the record, examined the evidence presented at trial, read the parties' post-trial submissions, and considered the arguments. The Court now makes the following findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a).
At the time of the automobile accident on January 30, 2014, in addition to the 2007 Mercedes involved in the crash, the Witherups had two other vehicles, a 1999 Lexus and a 2008 Chrysler. Each of the Witherups' three vehicles was insured by a separate policy issued by State Farm.
State Farm issued to the Witherups a policy numbered 776 9075 ("the '9075 Policy") on April 1, 2009, insuring the 2008 Chrysler. The policy provided bodily injury liability coverage limits of $100,000 per person / $300,000 per accident. The policy did not include uninsured motorist coverage. Henne Witherup, a named insured, signed a written uninsured motorist coverage rejection form rejecting uninsured motorist coverage under the '9075 Policy. (Def.'s Ex. 2b.) State farm issued a second policy, numbered 776 9076 ("the '9076 Policy"), to the Witherups on April 1, 2009, insuring the 1999 Lexus. The policy also excluded uninsured motorist coverage. Henne Witherup, a named insured on the '9076 Policy, signed a written uninsured motorist coverage rejection form rejecting uninsured motorist coverage as to that policy. (Def.'s Ex. 1a.)
On June 12, 2010, the Witherups purchased the Mercedes that, in 2014, was involved in the accident giving rise to this litigation. At the time of purchase, Felicia Witherup contacted a State Farm call center to obtain coverage on the Mercedes and spoke with a call center representative. (See Pl.'s Ex. 1.) Based on that call, State Farm mistakenly treated the Mercedes as a replacement vehicle for the 2008 Chrysler. Coverage was temporarily extended to the Mercedes under the '9075 Policy for fourteen days following its purchase on June 12, 2010. (Id. ) After that fourteen day period ending June 26, 2010, the Mercedes was uninsured until July 27, 2010, at which time the Mercedes was substituted for the Chrysler on the '9075 Policy. As a result of the Mercedes' mistaken substitution on the '9075 Policy, the Chrysler was dropped from that policy and went uninsured from July 27, 2010 until September 7, 2010, when Felicia Witherup followed up with her State Farm agency because she had not been receiving premium or renewal notices for the Chrysler.
On September 7, 2010, State Farm issued policy number 926 7355 ("the '7355 Policy"), insuring the Chrysler. The policy provided bodily injury liability coverage limits of $100,000 per person / $300,000 per accident. It did not include uninsured motorist coverage. Felicia Witherup signed a written uninsured motorist coverage rejection form rejecting uninsured motorist coverage as to the 2 agent, in obtaining the Witherups' signatures on the written uninsured motorist coverage rejection forms.3
State Farm sends semi-annual renewal or premium notices to its policy holders, informing them of various uninsured motorist coverage options, and advising them to consider adding uninsured motorist coverage and to contact their State Farm agent should they wish to change coverage.4 State Farm also sends its policy holders a declarations page when the policy is first issued and when there are any changes in coverage, vehicles, names, or addresses; and insurance identification cards when its motor vehicle insurance policies are renewed every six months. The renewal or premium notices, declarations pages, and insurance identification cards list all coverages, including uninsured motorist coverage (if any).
As to the '9075 Policy, State Farm sent the Witherups semi-annual premium or renewal notices from mid–August 2009 through mid–October 2013. (Def.'s Exs. 2d, 2e, 2m, 2n, 2p–2r, 2t.) State Farm also sent declarations pages from April 2009 through May 2013 (Def.'s Exs. 2c, 2j, 2l, 2o, 2s), and insurance identification cards with effective dates of October 1, 2012, April 1, 2013, and October 1, 2013 (Def.'s Ex. 4). As to the '9076 Policy, State Farm sent semi-annual premium or renewal notices for the '9076 Policy from mid–August 2009 through mid–August 2013. (Def.'s Ex. 1b–1j.) As to the '7355 Policy, State Farm sent semi-annual premium or renewal notices from mid–January 2011 through mid–August 2013 (Def.'s Exs. 3g–3k, 3m), and four declarations pages from September 2010 through January 2014 (Def.'s Exs. 3e, 3f, 3l, 3n). Consistent with the written waivers, none of these documents showed that any of the policies provided UM coverage or that the Witherups were paying premiums for UM coverage.
In Florida, no motor vehicle liability policy that provides bodily injury liability coverage shall be delivered or issued unless UM coverage is provided.5
Fla. Stat. § 627.727(1). However, UM coverage is not required when a named insured makes a written rejection of such coverage on a statutorily approved form.6 Id. Evidence of a signed rejection form represents a prima facie showing that UM coverage does not apply. State Farm Mut. Auto. Ins. Co. v. Parrish , 873 So.2d 547, 549 (Fla. Dist. Ct. App. 2004). The insured's signature on the form creates a "conclusive" presumption that the waiver was knowingly made, on which the insurer is entitled to rely. Id. at 551 ; Fla. Stat. § 627.727(1).
Despite the statutory creation of a "conclusive" presumption, the presumption can be overcome by evidence of exigent circumstances showing the rejection was not "knowing." See Parrish , 873 So.2d at 550 (). The burden of proving that the rejection was not knowingly made rests with the insured, who must present some evidence to that effect. See Jackson v. State Farm Fire and Cas. Co. , 469 So.2d 191, 193 (Fla. Dist. Ct. App. 1985). Merely contending that the rejection was not knowingly made is insufficient, as is testimony that the insured did not read the rejection forms. Id. (); Liberty Mut. Ins. Co., Inc. v. Ledford , 691 So.2d 1164, 1166 (Fla. Dist. Ct. App. 1997) (); Mitleider v. Brier Grieves Agency, Inc. , 53 So.3d 410, 412 (Fla. Dist. Ct. App. 2011) (). Whether an insured has knowingly rejected UM coverage is an issue to be decided by the trier of fact. Jackson , 469 So.2d at 193 (quoting Kimbrell v. Great Am. Ins. Co. , 420 So.2d 1086 (Fla. 1982) ); see also Petrou v. South Carolina Ins. Co. , 435 So.2d 316, 318 (Fla. Dist. Ct. App. 1983) ().
At trial, State Farm offered as evidence written UM rejection forms signed by one of the Witherups for each of their three policies, which constitutes a prima facie showing that UM coverage does not apply. Parrish , 873 So.2d at 549. Because State Farm presented signed UM selection/rejection forms, the burden of proof shifted to the Witherups to show that these rejections were not "knowing." Jackson , 469 So.2d at 193. Ultimately, they failed to carry this burden and overcome the "conclusive" statutory presumption that each of their signed written rejections was knowing and voluntary. Parrish , 873 So.2d at 550–51 ; Fla. Stat. § 627.727(1). The Witherups have not produced credible evidence7 that their signed written rejections were not knowingly made, and their mere contentions to that effect are insufficient. Moreover, the Court has determined that there was no forgery, fraud, or trickery...
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