NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

EDDIE GALLON, )

)

Appellant, )

)

v. ) Case No. 2D13-2853

)

GEICO GENERAL INSURANCE )

COMPANY; and JOHN OR JANE DOE, )

Agent Individually, )

)

Appellees. )

)

Opinion filed September 12, 2014.

Appeal from the Circuit Court for Polk

County; Steven L. Selph, Judge.

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. 

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 

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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. 

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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 insurance policy. However, "[t]he terms of an 

insurance policy do not preclude an action against the insurer or its agent where the 

agent misrepresents the coverage of the insurance contract and the insured reasonably 

relies on the misrepresentation to his detriment." Martin v. Principal Mut. Life Ins. Co., 

557 So. 2d 128, 129 (Fla. 3d DCA 1990); see also Warren v. Dairyland Ins. Co., 662 

So. 2d 1387, 1388 (Fla. 4th DCA 1995) (noting that if Dairyland's agent "had improperly 

explained uninsured motorist coverage to plaintiffs, Dairyland could be liable for 

uninsured motorist coverage equal to the liability limits"). Moreover, whether an 

insured's reliance on an agent's representations is reasonable is generally a question of 

fact. See, e.g., Romo v. Amedex Ins. Co., 930 So. 2d 643, 652 (Fla. 3d DCA 2006). 

Hence, the question of whether Mrs. Gallon's reliance on GEICO's agent's explanation 

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of her stacked UM coverage was reasonable was not one that could be decided at the 

motion to dismiss stage of these proceeding and so cannot serve as a basis to support 

an affirmance. 

In sum, because the allegations of Gallon's complaint were facially 

sufficient to state a cause of action for negligent misrepresentation, the trial court erred 

by dismissing this count of the complaint. Accordingly, we must reverse and remand for 

further proceedings. The dismissal of the remaining counts is affirmed. 

Affirmed in part, reversed in part, and remanded for further proceedings. 

NORTHCUTT, J., Concurs. 

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge, Concurring. 

I fully concur in this opinion. I am inclined to believe that claims of 

negligent misrepresentation in this context should be rare. I write briefly to explain the 

unusual circumstances that appear to have led to this claim. 

Ms. Gallon's policy of insurance with GEICO, which was issued in 2008, 

covers two automobiles. On one automobile—a 1999 Chrysler that apparently is the 

family car—Ms. Gallon purchased standard personal injury protection coverage. She 

also purchased $50,000/$100,000 in bodily injury liability coverage and an equal 

amount of UM coverage on that automobile. That automobile also has $50,000 in

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coverage for property damage liability, collision coverage, and comprehensive 

coverage. 

On the second automobile—a 1990 Toyota that apparently is a teenager's 

car—she has only the minimum requirements under the Florida Motor Vehicle No-Fault 

Law. See § 627.730-.7405, Fla. Stat. (2008). Thus, this automobile is not insured for 

liability coverage or UM. There is no indication in our limited record that GEICO 

obtained a written rejection of UM coverage for this automobile. Because the policy 

was issued with no liability coverage for this automobile, GEICO may not have required 

its agent to obtain a rejection form. 

When GEICO created the written policy for these two automobiles, the 

standard language for stacked UM coverage was used on the declaration page—even 

though no premium was charged for UM on the Toyota. The standard contractual forms 

accompanying the declaration page appear to be the forms that normally would be used 

when the policy covered two automobiles, both of which had UM coverage. 

It may be that GEICO has some standard underwriting procedure by 

which it "stacks" the $50,000/$100,000 UM on the first automobile with $0 on the 

second, so that each car has $50,000/$100,000 in UM for the premium charged on only 

the one automobile. If so, that is simply a very odd form of stacked coverage.1

The claim in this case is that Ms. Gallon was told by a GEICO agent that 

her stacked policy would have twice the limits of UM. In the context of this particular 

policy, it is entirely possible that an agent would have interpreted the stacked coverage

1Whether such a combination coverage is authorized with or without a 

rejection form in Florida is not an issue in this case. 

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to provide twice the amount of UM coverage because that is the situation under the 

usual policy where both cars have the same limit of UM coverage for both vehicles. 

Ms. Gallon, of course, was contacting GEICO because she thought her 

premium was too high. The alleged misinformation from the agent caused her to leave 

her policy as it was. Apparently, if she had received correct information, in order to 

actually receive typical stacked coverage, she would have been required to pay an even 

higher premium. Thus, on remand, she may have a difficult time establishing all of the 

elements that she has alleged in her complaint. See Fla. Std. Jury Instr. (Civ.) 409.8. 

But at this stage in the proceedings the case was not resolvable on a motion to dismiss.

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