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. 
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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. BrownPeterkin 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. BrownPeterkin 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 subcategories 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 
7

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.