DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SHANNET BROWN-PETERKIN and
COURTNEY PETERKIN, her husband,
Appellants,
v.
KEITH DAVID WILLIAMSON, STEPHEN RYAN WILLIAMSON, and
GEICO GENERAL INSURANCE COMPANY,
Appellees.
No. 4D19-2950
Appeal of a nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Jack Tuter, Judge; L.T. Case No.
CACE15-016906(07).
_____________________________
STEPHEN COCCARO and SHARON COCCARO,
Appellants,
v.
GEICO GENERAL INSURANCE COMPANY,
Appellee.
No. 4D19-3665
Appeal of a nonfinal order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; James Nutt, Judge; L.T. Case No.
502014CA002048XXXXMBAO.
________________________________
[November 12, 2020]
Gregg A. Silverstein of Silverstein, Silverstein & Silverstein, P.A.,
Aventura, Brett C. Powell of The Powell Law Firm, P.A., Miami, Daniel G.
Williams of Gordon & Partners, Palm Beach Gardens, Jeffrey M. Liggio and
Geoff S. Stahl of Liggio Law, P.A., West Palm Beach, and Philip M.
Burlington and Jeffrey V. Mansell of Burlington & Rockenbach, P.A., West
Palm Beach, for appellants.
Frank A. Zacherl of Shutts & Bowen LLP, Miami, and Garrett A. Tozier
of Shutts & Bowen LLP, Tampa, for appellee Geico General Insurance
Company.
WARNER, J.
In actions for declaratory judgment as to auto insurance coverage, the
plaintiffs in the respective underlying cases moved to certify a statewide
class comprised of Geico policyholders who rejected or lowered
uninsured/underinsured (UM) motorist coverage through Geico’s online
signature process. The plaintiffs sought a declaration that Geico’s UM
coverage rejection process fails to comply with Florida law and does not
properly advise policyholders regarding UM coverage options. The circuit
courts in Broward and Palm Beach counties denied the separate class
certification motions, and the plaintiffs appealed. We affirm the orders in
this consolidated appeal. Because the validity of Geico’s process has
already been decided by this court, neither plaintiff has standing to seek
declaratory relief on behalf of the proposed class. Additionally, because of
the difference between various iterations of the online process over the
years, there is no commonality between plaintiffs and class members or
typicality because of the potential of defenses to individual members.
Background
Florida law requires insurance companies to give customers the
opportunity to purchase UM coverage that is at least equal to the amount
of bodily injury coverage. If the customer wishes to lower their UM
coverage limit or reject the coverage altogether, the customer must sign a
form, which constitutes a knowing, written rejection of UM coverage,
commonly referred to as an M9 form. § 627.727(1), Fla. Stat. (2011). A
signed M9 form that complies with the statute establishes a conclusive
presumption that the insured has waived UM coverage. Id. The statute
details the mandatory procedure for UM coverage rejection:
The rejection or selection of lower limits shall be made on a
form approved by the office. The form shall fully advise the
applicant of the nature of the coverage and shall state that the
coverage is equal to bodily injury liability limits unless lower
limits are requested or the coverage is rejected. The heading
of the form shall be in 12-point bold type and shall state: “You
are electing not to purchase certain valuable coverage which
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protects you and your family or you are purchasing uninsured
motorist limits less than your bodily injury liability limits
when you sign this form. Please read carefully.” If this form
is signed by a named insured, it will be conclusively presumed
that there was an informed, knowing rejection of coverage or
election of lower limits on behalf of all insureds. The insurer
shall notify the named insured at least annually of her or his
options as to the coverage required by this section. Such
notice shall be part of, and attached to, the notice of premium,
shall provide for a means to allow the insured to request such
coverage, and shall be given in a manner approved by the
office. Receipt of this notice does not constitute an affirmative
waiver of the insured’s right to uninsured motorist coverage
where the insured has not signed a selection or rejection form.
Id. In addition, customers may reject stacked coverage by signing an
approved form, pursuant to section 627.727(9), Florida Statutes (2011).
Accordingly, Geico was and is required to fulfill the statutorily mandated
notice requirement and obtain a written waiver of UM coverage from its
customers.
Geico’s online signature process prior to 2013 for the purchase of
insurance required the customer to click through several screens, one of
which instructed the customer to review the forms that needed a
signature. The M9 form, by which the customer could reject or lower UM
coverage, was located behind a hyperlink. Below the hyperlink, the screen
provided:
Please select the “Sign Form(s) and Continue” button below.
By selecting this button, you indicate that you have reviewed
and agree to electronically sign the form(s) selected above.
You will then be provided with a chance to View, Download or
Print your electronically signed documents.
By clicking through, a customer could e-sign the M9 form without ever
viewing it and without the boldface warning required by statute on the
signature page.
Since 2013, Geico has changed the procedure by which it presents its
M9 form twice. Between 2013 and 2016 the customers were also not
required to view the M9 form or to sign that form, but the form did comply
with the statute. In 2016, Geico began displaying the M9 form to the
customer without requiring the customer to click a hyperlink. However,
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the form was static and had the preselected choice of no UM coverage,
which the customer could not change.
The plaintiffs in the underlying actions each purchased Geico policies
and completed the online signature process without viewing the M9 form
based on the 2010-2013 version of the online process. Ms. Brown-
Peterkin purchased a policy in 2011 and rejected UM coverage altogether,
and Mr. Coccaro purchased a policy in 2012 and selected UM coverage
below his policy’s bodily injury limits.
In 2013, Ms. Brown-Peterkin was injured in a car accident. Ms. Brown-
Peterkin and her husband made a claim for UM benefits under her Geico
policy. Geico alleged the plaintiff rejected coverage through the online
signature process and denied the claim.
Mr. Coccaro’s wife was injured in a separate car accident the same year.
Mr. Coccaro and his wife alleged their policy’s UM coverage was equal to
the policy’s bodily injury limits. Geico alleged the Coccaros lowered their
UM coverage through the online signature process and denied the claim.
Ms. Brown-Peterkin and Mr. Coccaro separately filed complaints
individually and on behalf of a putative class, alleging that Geico failed to
comply with section 627.727 by not fully advising customers regarding UM
coverage rejection and stacking options under section 627.727(9). Both
plaintiffs asked the circuit courts to enter an order declaring Geico to have
violated Florida law by failing to fully advise applicants regarding UM
coverage and stacking and estopping Geico from denying class members
UM coverage in any amount less than their stacked bodily injury coverage
limit. They also alleged individual counts seeking damages, but in the
declaratory judgment count they did not seek monetary damages or a
declaration of the right to monetary damages. The class was defined as:
All persons who contacted GEICO by telephone to purchase a
Florida motor vehicle insurance policy, who were then
directed by GEICO to the www.geico.com website, who were
not provided, and made to sign, the form required by Florida
Statute Section 627.727 describing the statutorily mandated
uninsured/underinsured motorists coverage options before
selecting lower uninsured/underinsured motorists limits or
totally rejecting any uninsured/underinsured motorists
coverage.
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Geico answered both complaints, contending, among other things, that
the plaintiffs had made a knowing, informed written rejection of coverage
based upon the online form rejecting coverage.
During the pendency of their complaints, this court decided Jervis v.
Castaneda, 243 So. 3d 996 (Fla. 4th DCA 2018). In Jervis, our court
upheld a summary judgment finding that Geico’s online UM coverage
rejection process, as it existed prior to 2013, failed to comply with section
627.727(1) and (9), because Geico did not present the form to the customer
with the required bold type warning, and the customer could not sign the
form. Thus, Geico’s notice was void. Geico argued it could prove the
customer orally waived UM coverage. But, because its written notice was
void, it amounted to no notice at all. Geico was precluded from arguing
that the customer provided an oral waiver. Id. at 997. “To allow an
insurance company to prove that an insured orally and knowingly rejected
stacked coverage in the absence of the statutory notice would undermine
the legislature's determination that such written notice is mandatory.” Id.
at 999. In Jervis, we reversed a final judgment in favor of Geico and
remanded “for the entry of a final judgment entitling appellants to stacked
UM coverage.” Id. at 1000.
The Third District was presented with a similar issue in Geico Indemnity
Co. v. Perez, 260 So. 3d 342 (Fla. 3d DCA 2018). The court held that Geico
was not entitled to the conclusive presumption that an insured had
rejected UM coverage, because Geico’s M9 form failed to track the language
of the section 627.727. The court did not reach the issue of whether
Geico’s e-signature process complied with Florida law. Id. at 352, n.9. The
court remanded for a new trial on whether the insured made a knowing,
written rejection. Id. at 354. Accordingly, while Geico could not establish
the conclusive presumption created by section 627.727, the court did not
reach the issue of whether Geico’s process violated Florida law, as we did
in Jervis. Under Perez, Geico could present other evidence at trial to
establish a knowing, written rejection of UM coverage.
The Third District later distinguished Perez from Jervis because Geico
never claimed the insured in Perez made an oral waiver, as it claimed in
Jervis. Perez v. Geico Indem. Co., 283 So. 3d 398 (Fla. 3d DCA 2019).
Instead, Geico claimed that Perez had made a knowing written rejection of
the UM coverage, for which evidence of an oral waiver was relevant.
With Jervis and Perez as the backdrop, in both cases the circuit courts
held lengthy hearings on class certification. The plaintiffs showed,
through Geico’s own records, that this issue affected thousands of Geico
customers. They presented their own experience dealing with the online
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form, and presented testimony from other similarly situated customers.
One customer testified to their experience involving the second time frame
and the second iteration of the online M9 form. The plaintiffs also
presented voluminous evidence regarding Geico’s business practices.
The circuit courts entered orders denying class certification. In the
orders, the courts noted both Jervis and Perez. Both courts explained that
Jervis’ holding that the failure to use the statutorily mandated form for
rejecting UM coverage precluded Geico from arguing that Jervis could
orally reject coverage. Perez simply held that oral evidence would be
admissible, if relevant, to prove a knowing written rejection by other
means.
Because this court had not addressed the same issue as in Perez, and
Geico argued that it may have defenses to an individual customer based
upon “various class members on theories of waiver, ratification, estoppel,
mootness, ripeness and so on,” the courts concluded that “individualized
determinations will have to be made on any claim of knowing waiver[.]”
The courts concluded that the plaintiffs did not have standing, nor had
they satisfied the typicality, commonality, or predominance requirements
of Florida Rule of Civil Procedure 1.220. The courts added that the
plaintiffs were not adequate class representatives for all three sub-
categories of the proposed class. Finally, neither plaintiff had shown the
superiority of a class action. The plaintiffs challenge those findings on
appeal.
Analysis
We have jurisdiction to review a non-final order denying class
certification. Fla. R. App. P. 9.130(a)(3)(C)(vi). This court reviews orders
on class certification for abuse of discretion. Sosa v. Safeway Premium
Fin. Co., 73 So. 3d 91, 105 (Fla. 2011). The circuit court’s factual findings
must be supported by competent, substantial evidence. Id.
To obtain class certification, a movant must plead and prove four
factors under rule 1.220(a):
(1) the members of the class are so numerous that separate
joinder of each member is impracticable, (2) the claim or
defense of the representative party raises questions of law or
fact common to the questions of law or fact raised by the claim
or defense of each member of the class, (3) the claim or defense
of the representative party is typical of the claim or defense of
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each member of the class, and (4) the representative party can
fairly and adequately protect and represent the interests of
each member of the class.
Fla. R. Civ. P. 1.220(a). A movant must also plead and prove the factors
of at least one of the subdivisions of rule 1.220(b). Sosa, 73 So. 3d at 106.
Standing must be determined before rule 1.220’s requirements are
considered. Stone v. CompuServe Interactive Servs., Inc., 804 So. 2d 383,
388 (Fla. 4th DCA 2001). A trial court’s determination as to whether a
party has standing with respect to a class action is reviewed de novo. Sosa,
73 So. 3d at 116.
To establish standing, “the class representative must illustrate that a
case or controversy exists between him or her and the defendant, and that
this case or controversy will continue throughout the existence of the
litigation.” Id.
The plaintiffs argue they have established standing to represent the
class by pleading a valid declaratory judgment action. However, once a
prior appellate decision settles a question of law as to which declaratory
relief is sought, the relief requested is rendered moot. Santa Rosa County
v. Admin. Comm’n, Div. of Admin. Hearings, 661 So. 2d 1190, 1193 (Fla.
1995); see also Vasquez v. Citizens Prop. Ins. Corp., 3D18-769, 2020 WL
1950831 (Fla. 3d DCA Mar. 18, 2020).
The plaintiffs seek a declaration that the process by which Geico
advised customers regarding UM coverage and stacking options violates
Florida law and that Geico is estopped from denying class members UM
coverage in any amount less than their stacked bodily injury coverage
limit. We addressed that question in Jervis by holding that Geico’s M9
form, which was the exact version of the form at issue in the plaintiffs’
cases, did not comply with section 627.727 and did not constitute a
knowing, written waiver. It was the equivalent of no notice. We remanded
for judgment in favor of the insured entitling him to stacked UM coverage.
Jervis, 243 So. 3d at 997.
The plaintiffs cannot have standing to represent the proposed class,
because our decision in Jervis has already determined the relief sought as
to the plaintiffs in the declaratory judgment action, the only action upon
which class action status is requested. Plaintiffs did not request damages
or monetary relief in this count. Based upon Jervis, plaintiffs would be
entitled to monetary relief on their individual counts seeking monetary
damages.
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Moreover, the plaintiffs cannot establish commonality and typicality of
claims as required by rule 1.220(a)(2) and (3). The proposed class
encompasses customers who purchased policies between 2010 and 2016.
Geico’s procedure changed twice during the relevant time frame, so the
relevant facts as to the proposed class members differ depending on when
they purchased a policy. These plaintiffs’ cases are governed by Jervis,
whereas those persons who rejected policies with the 2013 changed
language or the 2016 online process have different contentions not covered
by Jervis. In addition, under Perez, Geico may also be able to raise
different defenses to certain insured’s claims in the two other versions of
the online process. Typicality is defeated if the defendant has a unique
defense to the class representative’s claim. Miami Auto. Retail, Inc. v.
Baldwin, 97 So. 3d 846, 853-54 (Fla. 3d DCA 2012).
Accordingly, we affirm the circuit court’s denial of class certification.
MAY and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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