Allison Chase, etc. v. Horace Mann Insurance Company , 40 Fla. L. Weekly Supp. 97 ( 2015 )

Supreme Court of Florida
____________
No. SC13-2013
____________
ALLISON CHASE, etc.
Petitioner,
vs.
HORACE MANN INSURANCE COMPANY,
Respondent.
[February 19, 2015]
QUINCE, J.
Allison Chase seeks review of the decision of the First District Court of
Appeal in Horace Mann Insurance Co. v. Chase, 121 So. 3d 1191 (Fla. 1st DCA
2013), on the ground that it expressly and directly conflicts with the Second
District’s decision in Creighton v. State Farm Mutual Auto Insurance Co., 696 So.
2d 1305 (Fla. 2d DCA 1997), on the issue of whether removing the sole named
insured from an auto insurance policy, and listing a separate individual as the
named insured on that policy for the first time, creates a new policy for purposes of
section 627.727, Florida Statutes (2008). We have jurisdiction. See art. V, §
3(b)(3), Fla. Const.
For the reasons stated below, we quash the decision of the First District,
approve the decision of the Second District in Creighton, and find that when
Allison Chase became the named insured on her auto insurance policy, Horace
Mann was required to advise her of her right to uninsured motorist (UM) benefits
equal to her liability limits and to obtain a written waiver of those benefits before
reducing them under section 627.727, Florida Statutes (2008).
STATEMENT OF THE CASE & FACTS
The pertinent facts of this case are not in dispute:
In 2001, Richard Chase obtained policy number 09-65434800
from Defendant Horace Mann. The insured vehicle was a 1992
Chevrolet Geo and the policy provided bodily injury liability limits of
$100,000/$300,000. Richard Chase, who was the only named insured
and the titled owner of the insured vehicle, signed a form in which he
selected reduced uninsured motorist limits of $25,000/$50,000. His
daughter, Allison Chase, was listed as a “driver” but was not a named
insured on the policy and thus had no right to select reduced uninsured
motorist limits.
Policy number 09-65434800 remained in effect with Richard
Chase as the sole named insured until January 27, 2004. At that time,
Horace Mann removed Richard Chase as the sole named insured on
the policy, made Allison Chase the sole named insured, and changed
the insured vehicle to a 1997 Ford Escort ST that had been acquired
by Allison three days earlier on January 24, 2004 and was titled in
only her name. At the same time, Horace Mann issued a new policy,
Policy Number 09-69095420, with Richard Chase as the sole named
insured, insuring a 2004 Jeep that was owned by Richard.
Horace Mann’s issuance of a new policy to a person (Richard
Chase) who was already the named insured on an existing policy,
while revising the existing policy to completely change the named
insured, as well as the insured vehicle, meant that Richard Chase, who
-2-
had already selected lower uninsured motorist limits for the policy,
was presented with another written rejection form while Allison
Chase, who had never previously had the opportunity or right to select
lower UM limits, was not provided the opportunity to reject the
coverage or select lower limits. Horace Mann’s corporate
representative, Theresa Beshears, testified that Horace Mann could
have continued Richard Chase’s existing policy and issued a new
policy to Allison Chase. Ms. Beshears testified that if a new policy
had been issued to Allison Chase, Ms. Chase would have had to sign a
rejection form in order to select lower limits.
In August of 2005, approximately 18 months after Horace
Mann issued the policy to Allison Chase, Allison moved out of her
father’s house and Richard Chase was removed as a listed driver on
the policy. On February 10, 2007, the insured vehicle was changed
from the 1997 Ford Escort to a 2004 Jeep Wrangler. On June 15,
2007, Allison Chase moved back in with her father and added Richard
L. Chase as a listed driver on her policy, number 09-65434800. The
crash that killed Richard Chase and injured Allison Chase occurred
exactly one month later on July 15, 2007. At no time did Allison
Chase reject uninsured/underinsured motorist coverage in writing or
select lower limits.
Order on Cross Motions for Partial Summary Judgment Concerning Entitlement to,
and Amount of, UM Insurance Coverage, Entitlement to Attorney’s Fees and
Costs, and Lifting Discovery Stay at 2-3, Chase v. Horace Mann Ins. Co., No. 16-
2008-CA-006534-XXXX-MA (Fla. 4th Cir. Ct. Sept. 28, 2010). Allison Chase
asserted that she, individually and as personal representative of her father’s estate,
was entitled to UM coverage in the amount equal to the policy’s bodily injury
limits because she never selected lower UM coverage in writing as required by
section 627.727, Florida Statutes (2008). Id.
Trial Court Order
-3-
On September 28, 2010, the trial court issued its order. Id. at 4. In the
order, the trial court recalled that at the hearing on the motions for summary
judgment, “Horace Mann relied principally on State Farm [Mutual] Auto[mobile]
Insurance Co. v. Shaw, 967 So. 2d 1011 (Fla. 1st DCA 2007), and [Allison Chase]
relied principally on Creighton v. State Farm Automobile Insurance Co., 696 So.
2d 1305 (Fla. 2d DCA 1997).” Id. Relying on its recitation of the “undisputed
material facts,” the trial court determined that Shaw was not dispositive and “[did]
not establish Horace Mann’s motion for summary judgment.” Id. After
determining that Creighton “controls the insurance coverage question[,]” the trial
court granted Allison Chase’s Motion for Partial Summary Judgment on
Entitlement to, and Amount of, UM coverage. Id. Among other relief, the court
ruled that both Allison Chase and her deceased father’s estate were entitled to
$100,000 of insurance coverage under Allison Chase’s policy. Id.
First District’s Decision
On appeal to the First District Court of Appeal, Horace Mann argued that
Richard Chase’s waiver was binding on Richard Chase’s estate, as well as Allison
Chase, both individually and as personal representative of Richard Chase’s estate.
Horace Mann Ins., 121 So. 3d at 1192.
The district court determined that “[b]ecause no policy limits were changed,
the policy was renewed, extended, changed, superseded, or replaced, and [Richard]
-4-
Chase’s waiver of higher UM coverage bound [Allison] Chase individually and as
personal representative of [Richard] Chase’s estate.” Id. at 1194 (citing Shaw, 967
So. 2d at 1015; Atlanta Cas. Co. v. Evans, 668 So. 2d 287, 289 (Fla. 1st DCA
1996)). Relying on its previous decision in Travelers Commercial Insurance Co. v.
Harrington, 86 So. 3d 1274, 1277 (Fla. 1st DCA 2012) (holding that under
§627.727(9), unlike subsection (1), the waiver must be personally made by the
insured who claims UM benefits), quashed, 39 Fla. L. Weekly S647 (Fla. Oct. 23,
2014), the district court also determined that the UM stacking waiver applied to
Richard Chase individually and to Allison Chase as personal representative of
Richard Chase’s estate, but not to Allison Chase individually because she did not
sign the UM stacking waiver as an insured. Id. Thus, the district court reversed all
of the trial court findings, except that it affirmed the trial court’s finding that
Allison Chase, individually, was entitled to stacked coverage. Id.
ANALYSIS
The issue in this case stems from a trial court’s order granting partial
summary judgment to the insured, Allison Chase, individually and as personal
representative of her deceased father’s estate, and denying the insurer, Horace
Mann’s motion for summary judgment following Chase’s claim for UM benefits
resulting from an auto accident. The relevant facts in this case are undisputed.
-5-
Therefore, this Court reviews the legal issues presented de novo. Kirton v. Fields,
997 So. 2d 349, 352 (Fla. 2008).
The primary issue and point of conflict in this case is whether the Horace
Mann policy became a new policy when Allison Chase became the sole named
insured on the policy. Although Horace Mann responds to Allison Chase’s
statement of the issue, arguing that the changing of the named insured constitutes a
change to the existing policy, which does not automatically require Horace Mann
to allow Allison Chase the right to make certain waivers, it states a derivative
conflict issue to be resolved by this Court. The derivative issue is whether Richard
Chase, Allison Chase individually, and Allison Chase as personal representative of
Richard Chase’s estate are bound by Richard Chase’s UM waivers under the
insurance policy that Allison Chase was the named insured on at the time of the
accident. We address each issue in turn below.
New Policy
The policy in question is a new policy for purposes of section 627.727(9),
Florida Statutes (2008), because the only named insured on the policy has not
previously been a named insured on the policy, and therefore has not had the
opportunity to make any of the express waivers required by law.
Generally, UM benefits under an automobile insurance policy are equal to
the policy’s liability limits. § 627.727(1), Fla. Stat. (2008). Section 627.727(1)
-6-
dictates that UM coverage can only be reduced to an amount lower than the bodily
injury liability coverage where a named insured rejects the higher coverage in
writing on behalf of all insureds under the policy. Id. Regarding an insurance
company’s duty to offer higher UM coverage after lower UM coverage has been
requested in writing, the statute dictates:
When an insured . . . has initially selected limits of uninsured motorist
coverage lower than her or his bodily injury liability limits, higher
limits of uninsured motorist coverage need not be provided in or
supplemental to any other policy which renews, extends, changes,
supersedes, or replaces an existing policy with the same bodily injury
liability limits unless an insured requests higher uninsured motorist
coverage in writing. 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.
Id. (emphasis added).
In American Fire & Indemnity Co. v. Spaulding, 442 So. 2d 206 (Fla. 1983),
Ruth Spaulding’s son, Joseph Spaulding, was injured on December 1, 1978, while
he was a passenger in a vehicle operated by Bradford Suder. Id. at 207. The Suder
vehicle collided with a vehicle operated by Robert V. Troyan (Troyan) and insured
by Kenilworth Insurance Company (Kenilworth). Id. The Suder vehicle was
owned by Bradford’s father, Burton Suder, and insured by American Fire &
Indemnity Company (AFIC). Id. Spaulding was insured by Fidelity & Casualty
Company of New York (F & C). Id.
-7-
The Suder’s AFIC policy provided bodily injury liability coverage of
$250,000 per person and $500,000 per occurrence, with UM coverage of $15,000
per person and $30,000 per occurrence. Id. Following AFIC’s failure to timely
approve a proposed settlement, Spaulding commenced an action for damages
against Troyan and Kenilworth, an action against AFIC and F & C for UM
benefits, and an action against AFIC for attorney’s fees. Id. After AFIC
counterclaimed for declaratory relief, “[t]he parties proceeded to nonjury trial on
the issue of whether AFIC’s uninsured motorist coverage was $15,000 or
$250,000.” Id. The evidence before the trial court established that Suder had
authorized his insurance agent to increase his bodily injury coverage to $250,000
per person, but elected to maintain his UM benefits at $15,000 per person; no
written rejection was obtained. Id. at 207-08. Suder subsequently added his son
Bradford to his policy, and added another vehicle, without being notified of his
option to increase his UM coverage. Id. at 208. “Suder testified, however, that he
intended for his [UM benefits] to remain at the lower limits because of the
additional expense of increased coverage.” Id.
The trial court determined that Suder’s correct amount of UM coverage was
$15,000 per person. Id. The Fourth District reversed this finding on appeal and
held that the correct amount of Suder’s UM coverage was $250,000 per person. Id.
The district court construed section 627.727(1), Florida Statutes (1977), “as
-8-
requiring that the insurer inform the insured, Burton Suder, of his statutory right to
higher uninsured motorist coverage with every ‘material’ policy endorsement.” Id.
(footnote omitted). Although the district court was compelled to apply its analysis
of the law in effect when the cause of action arose, the court highlighted the 1982
amendment made to section 627.727, which eliminated “any possibility that this
section will again be interpreted as requiring an offer of uninsured motorist
coverage with every ‘material’ policy change.” Id. at 208 n.4 (citing § 627.727(1)
(Supp. 1982)).
This Court reviewed the Fourth District’s decision in Spaulding, based on a
conflict with Kimbrell v. Great American Insurance Co., 420 So. 2d 1086 (Fla.
1982). Id. at 207. This Court disagreed with the district court’s interpretation of
the statute, reasoning that the statute requires that a selection of lower UM
coverage be made knowingly but “does not mandate that this selection be in
writing or any other specific form.” Id. at 208. This Court continued, “[i]t is
conceivable that the insured might know of the availability of coverage without
being expressly informed of such by the insurer.” Id. at 209. This Court
determined that Suder was clearly “aware of his statutory right to higher uninsured
motorist coverage and knowingly elected to continue his selection of the lower
amount . . . [t]he decision of Burton Suder, the named insured, to maintain his
[UM] coverage at $15,000 is binding on any additional insureds.” Id. (citing
-9-
Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501, 504 (Fla. 1982)) (emphasis
added). This Court, therefore, quashed the district court’s decision. Id.
In the instant case, at the hearing on the motions for summary judgment,
Horace Mann relied principally on Shaw, 967 So. 2d 1011, and Plaintiff relied
principally on Creighton, 696 So. 2d 1305. In Shaw, the First District reversed a
trial court’s order “declaring that each of the appellee estates of Sean Ditmore and
Stephanie Ditmore are entitled to [UM] policy limits of $100,000.” 967 So. 2d at
1012. The court “[held] that Sean Ditmore replaced his automobile policy with the
same bodily injury liability limits after his former wife elected lower limits of
$50,000 per person.” Id. (emphasis added).
Sean Ditmore and his first wife, Lori Ditmore, were insured with State Farm
from 1996 until their divorce in 2000. Id. Their policy included liability coverage
of $100,000 per person and $300,000 per accident. Id. In June of 1996, Lori
elected lower UM coverage of $50,000 per person and $100,000 per accident. Id.
Lori and Sean divorced in 2000. Id. Following the divorce, State Farm issued
Sean another policy with a new number and a new premium, exclusively in Sean’s
name. Id. at 1012-13. The policy covered a new vehicle located at a new address
and had identical liability and UM benefits as the previous policy, but added
comprehensive collision coverage for car rental and travel expenses. Id. “In 2003,
- 10 -
Sean substituted a new car . . . but kept the same liability policy limits and UM
coverage.” Id. at 1013.
On April 22, 2004, Sean married his second wife, Stephanie. Id. The next
day, while traveling in Stephanie’s truck, Sean and Stephanie were tragically killed
when an underinsured motorist struck their car head on. Id. Stephanie’s truck was
not insured by State Farm and did not have UM coverage. Id. The tortfeasor’s
insurance policy limits were not enough to cover the loss and the estates filed a
claim for UM benefits under Sean’s State Farm policy. Id. State Farm denied the
claim based on language in Sean’s UM coverage excluding benefits for bodily
injury occurring in a vehicle owned by the insured or the insured’s spouse that is
not covered under the policy. Id.
Following extensive litigation, the estates moved for amended summary
judgment, claiming that the UM exclusion that Lori signed was not binding on
Sean and Stephanie. Id. The trial court agreed “that State Farm failed to obtain a
valid UM exclusion under section 627.727(9)(d).” Id. The trial court also
determined that “Lori’s election of lower limits, although binding on all insureds at
that time . . . was not binding on Sean or Stephanie because a new policy was
issued solely to Sean, after his divorce from Lori in 2000, on a new vehicle, at a
new address, and with new coverages.” Id. at 1013-14. The trial court continued,
“[t]his policy represented a newly issued policy, or at the very least amounted to
- 11 -
such a material change to the policy as to require State Farm to obtain a new UM
coverage rejection form signed by the actual insured, Sean Ditmore.” Id. at 1014.
“State Farm appealed the trial court’s ruling that Lori’s election of the lower UM
benefits of $50,000 was not effective.” Id.
On appeal, the First District “agree[d] with State Farm that Lori’s election of
reduced UM coverage remained in effect because the policy was replaced with the
same bodily injury liability limits, pursuant to section 627.727(1), Florida Statutes
(2004).” Id. Relying on Evans, the district court determined that “Sean’s divorce
from Lori did not require a new UM coverage offer by State Farm.” Id. at 1015.
After briefly revisiting this Court’s decision in Spaulding, which indicates that UM
coverage does not have to be offered with every “ ‘material’ policy change[,]” the
First District stated “[c]hanges to policies, or their replacement, that do not affect
bodily injury liability limits do not require a new UM election.” Id. (emphasis
added). The First District also rejected the estates’ arguments that “the cumulative
effect of the various changes to the policy . . . causes it to be a ‘new’ policy instead
of a replacement policy.” Id. The district court determined that the “cumulative
effect” argument was not supported by any statutory language, or any cases
construing section 627.727(1). Id. at 1015-16. The district court reversed the trial
court’s ruling on the amount of UM benefits available to the estates, holding that
because Sean Ditmore “replaced” his automobile policy with the same liability
- 12 -
limits after his former wife elected lower UM limits, the estates were entitled to the
lower benefits. Id. at 1016.
In Creighton, Peter Creighton was employed by an accounting firm by the
name of McNamara & Associates, P.A. (McNamara) in 1987. 696 So. 2d at 1305.
In that same year, McNamara applied to State Farm for an automobile insurance
policy to cover a 1987 Honda Accord. Id. The application listed Peter Creighton
as the driver, with bodily injury limits of $100,000 per person and $300,000 per
accident. Id. However, an authorized officer of McNamara signed a waiver
reducing the UM benefits to $10,000 per person and $20,000 per accident. Four
years later, Peter Creighton leased a 1991 Infiniti in his own name and contacted
State Farm for an insurance policy. Id. McNamara requested that State Farm
apply any policy credits on its policy to Peter Creighton. Id.
Rather than transfer the premium credits and membership fees to a
new policy for Peter Creighton as the insured, State Farm made the
following changes to the existing McNamara policy:
a — changed the owner of the policy from McNamara to Peter
Creighton;
b — changed the billing address from McNamara’s business
address to Peter Creighton’s home address; and
c — changed the insured vehicle from a 1987 Honda Accord to
a 1991 Infiniti.
Id. at 1305 (emphasis added).
On August 7, 1994, Peter Creighton and his pregnant wife, Carol Creighton,
were in an automobile accident with an uninsured motorist. Id. at 1306. As a
- 13 -
result of the accident, the Creighton’s daughter, Madeline, was born prematurely
and died the next day. Id. The Creightons made a demand on State Farm for UM
benefits in the amount of $100,000 per individual and $300,000 per accident,
equaling the bodily injury limits of the policy. Id. State Farm rejected the demand
and the Creightons commenced an action for declaratory relief. Both parties filed
motions for summary judgment. Id. The trial court granted State Farm’s motion,
effectively limiting the UM benefits to $10,000/$20,000. Id. The trial court did
not state the basis for its ruling. Id.
The Second District reversed that decision, finding that “[f]or internal
bookkeeping purposes, State Farm changed the existing McNamara policy instead
of issuing a new policy. Notwithstanding the mechanics State Farm employed, this
is a new policy as to Peter Creighton, just as if the McNamara policy had been
canceled and a new policy issued in Peter Creighton’s name.” Id. (emphasis
added). The district court concluded, “Neither Peter Creighton nor his wife ever
signed a waiver form advising them of any of the information the [L]egislature
deemed important.” Id. (footnote omitted). Thereafter, the district court reversed
and remanded in the Creightons’ favor. Id.
In Atlanta Casualty Co., Shirley T. Evans (formerly Brinson) and her
husband, Larry Brinson, applied for auto insurance with Atlanta Casualty
Company on February 19, 1990, requesting bodily injury liability limits of $10,000
- 14 -
per person and $20,000 per accident, and a property damage liability limit of
$10,000 per accident. 668 So. 2d at 288. Mr. Brinson signed a form rejecting UM
coverage. Id. The issued policy covered a period from February 20, 1990, to
February 20, 1991. Id. Evans and her former husband divorced on December 30,
1990. Id. Prior to the expiration of the policy, the insurance company sent a
renewal notice to the address listed on the application, which appeared to be where
Evans continued to reside after the divorce. Id. On February 20, 1991, Evans
renewed the same policy number and submitted a signed request for the same
coverage, but requested that her former husband be removed as the named insured
and that her name be changed from Brinson to Evans. Id. The insurance company
made the requested changes. Id. The insurance company did not offer Evans UM
coverage, nor did it obtain a written rejection of such coverage prior to renewing
the policy. Id. On July 7, 1991, an uninsured motorist injured Evans and her
minor children in an auto accident. Id.
Based on section 627.727(1), Florida Statutes (1991), the First District
determined that
an insurer is not required to provide uninsured motorist coverage
when ‘an insured named in the policy’ rejects such coverage, in
writing, ‘on behalf of all insureds under the policy.’ Moreover,
uninsured motorist coverage need not be provided when ‘an existing
policy’ as to which uninsured motorist coverage had been rejected is
‘renew[ed], extend[ed], change[d], supersede[d], or replace[d]’ by
‘any other policy’ having ‘the same bodily injury liability limits’ as
- 15 -
the previous policy, ‘[u]nless an insured . . . requests such coverage . .
. in writing.’
Id. at 289 (alterations in original). The court cited dicta in Spaulding as support for
its conclusion that a mere “intervening change in the policy, ‘material’ or
otherwise,” does not require an insurance company to offer an insured UM
coverage again after such coverage was previously rejected. Id. at 290. The court
concluded that the plain language of the statute did not require the insurance
company to offer UM coverage to Evans absent a written request for such
coverage. Id.
This Case
Although Allison’s policy retained the same liability limits as her father’s
previous policy, similar to Sean Ditmore’s policy with State Farm in Shaw,
indicating that the insurance company had no duty to offer UM benefits that were
equal to the policy’s bodily injury liability limits, there is a critical distinction
between these cases: it appears that Sean Ditmore had been a named insured on the
State Farm policy shared with his first wife. See Shaw, 967 So. 2d at 1012-13 (the
district court repeatedly refers to the policy as belonging to both Sean and Lori;
there is no indication that only Sean was listed as a driver on the policy; and the
district court states “[a]fter the divorce, State Farm issued another insurance policy
exclusively in Sean’s name.” This statement implies that he and his first wife,
Lori, were both listed as named insureds on the first policy.) (emphasis added).
- 16 -
This is significant because Sean Ditmore had the opportunity to waive the higher
bodily injury liability limits at all times that he was listed on the policy, indicating
that when he divorced from his first wife and subsequently added his second wife
to the policy, the policy with Stephanie replaced the policy with Lori, as the First
District found. On the other hand, Allison Chase was given no such opportunity.
Allison was not a named insured on her father’s policy prior to Horace Mann’s
unilateral decision to give her the policy number that previously belonged to her
father, where she previously had no authority to make any coverage waivers.
Horace Mann would like for this Court to focus on the portion of section
627.727(1), Florida Statutes (2008), that allows a named insured to elect “lower
limits on behalf of all insureds.” However, we find that the dispositive language
concerning this issue is the requirement that “a named insured” be given the
opportunity to waive those coverages. This Court has made clear that Florida’s
UM statute “is not designed for the benefit of insurance companies.” State Farm
Mutual Auto. Ins. Co. v. Curran, 135 So. 3d 1071, 1077 (Fla. 2014); see also id. at
1081 (Lewis, J., concurring) (“[W]e have repeatedly recognized that ‘as a creature
of statute rather than a matter for contemplation of the parties in creating insurance
policies, the uninsured motorist protection is not susceptible to the attempts of the
insurer to limit or negate that protection.’ ”) (citing Salas v. Liberty Mut. Fire Ins.
Co., 272 So. 2d 1, 5 (Fla. 1972))). Just as in Creighton, Allison Chase being listed
- 17 -
as the named insured on the Horace Mann insurance policy created a new policy
for the purposes of section 627.727(1), Florida Statutes (2008), because it was the
first time that the only named insured on the policy had the opportunity to make
statutorily required waivers. Therefore, Horace Mann did not obtain a valid waiver
of UM coverage under Allison Chase’s policy.
Richard Chase’s Waivers
At the time of the accident, Allison Chase was the name insured on the
Horace Mann policy, with her father listed as a driver. There is no dispute that
Allison Chase, as the sole named insured on the policy, never signed a waiver of
higher UM coverage. Therefore, Richard Chase’s waivers made under his policy,
albeit the same policy number, do not apply to her as the sole named insured on her
policy or as the personal representative of her father’s estate under her policy.
CONCLUSION
For the above stated reasons, we quash the decision of the First District,
approve the decision of the Second District in Creighton, and find that Allison
Chase is not subject to Richard Chase’s waiver of benefits and, therefore, Horace
Mann did not obtain a valid waiver of benefits from Allison Chase as the named
insured of her Horace Mann auto insurance policy.
It is so ordered.
LABARGA, C.J., and PARIENTE, and PERRY, JJ., concur.
LEWIS, J., concurs in result.
- 18 -
POLSTON, J., dissents with an opinion, in which CANADY, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
POLSTON, J., dissenting.
I would discharge for lack of jurisdiction. This Court has explained that, in
order for us to have jurisdiction under article V, section 3(b)(3) of the Florida
Constitution, the “[c]onflict between decisions must be express and direct, i.e., it
must appear within the four corners of the majority decision.” Reaves v. State, 485
So. 2d 829, 830 (Fla. 1986). Here, the majority describes and quotes the factual
circumstances of this case as detailed in the trial court’s order on cross motions for
partial summary judgment. However, most of those specific details are not
included within the four corners of the First District’s decision in this case.
Because there are insufficient facts in the First District’s decision regarding the
vehicle or vehicles involved and the contents of the relevant policies, I cannot
determine whether the factual circumstances in this case are similar to the factual
circumstances of Creighton v. State Farm Mut. Auto. Ins. Co., 696 So. 2d 1305
(Fla. 2d DCA 1997). Accordingly, express and direct conflict does not appear
within the four corners of the First District’s decision, and I respectfully dissent.
CANADY, J., concurs.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
- 19 -
First District - Case No. 1D12-2132
(Duval County)
William A. Bald, Benjamin Edward Richard, and Stephen John Pajcic of Pajcic &
Pajcic, P.A., Jacksonville, Florida,
for Petitioner
Julius F. Parker, III and Kathy J. Maus of Butler Pappas Weihmuller Katz Craig
LLP, Tallahassee, Florida,
for Respondent
- 20 -