DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOHN H. JERVIS and LINDA JERVIS, individually

and as husband and wife,

Appellants,

v.

JOSE CASTANEDA and GEICO GENERAL INSURANCE COMPANY,

Appellees.

No. 4D17-332

[April 25, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Gregory M. Keyser, Judge; L.T. Case No. 50-2011-CA006657-XXXX-MB-AE.

Kara Berard Rockenbach of Link & Rockenbach, P.A., West Palm 

Beach, Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm 

Beach, Daniel G. Williams of Gordon & Doner, P.A., Palm Beach Gardens, 

and Jeffrey M. Liggio and Geoff S. Stahl of Liggio Law, P.A., West Palm 

Beach, for appellants.

Suzanne Youmans Labrit and James P. Terpening, III of Shutts & 

Bowen LLP, Tampa, Francis A. Zacherl, III of Shutts & Bowen LLP, Miami,

and Amber Stoner of Shutts & Bowen LLP, Tallahassee, for appellees.

GROSS, J.

The core issue in this case is whether an insurance company that 

completely fails to comply with the written notice provisions of section 

627.727(1) & (9), Florida Statutes (2010),1 is entitled to establish that an 

insured knowingly rejected stacked coverage or knowingly accepted nonstacked uninsured motorist coverage. We hold that the failure to serve the 

mandatory notice precludes the insurance company from claiming that 

1 As Geico correctly points out, the 2010 version of section 627.727 applies here. 

See Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996)

(“[T]he statute in effect at the time an insurance contract is executed governs 

substantive issues arising in connection with that contract.”).
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the insured orally made a knowing choice regarding the stacking of UM 

coverage.

Appellant John Jervis purchased uninsured motorist coverage from 

Geico General Insurance, Co. for two vehicles. He completed an online 

form which, in the circuit court, Geico argued was an election of nonstacked coverage. The first circuit judge assigned to the case ruled on 

summary judgment that Geico’s online form was void; the form was not 

actually signed by Jervis, Jervis had no ability to reject or deselect nonstacked coverage, and the signing page did not have the warning language 

required by statute. The judge ruled:

The Court has determined as a matter of law that the 

documentation used by GEICO does not comport with Florida 

statute 627.727 which requires that the insured be provided 

a form that in twelve (12) point type contains certain 

warnings. It further provides that this form is to be signed by 

the insured. If it is signed, then it is conclusively presumed 

that there was an informed knowing of rejection of coverage 

or election of lower limits. The court finds that the form 

containing the twelve (12) point bold type was not actually 

signed by the insured. The page on which the act of signing 

took place did not have any required warning language. It 

incorporated the warning by reference. It was not 

electronically possible to actually sign on the M9 form. One 

must sign on a precursor screen.

Therefore the M9 waiver of uninsured motorist coverage is 

void.

Secondly, the signer had no electronic ability to deselect the

form’s preselected waiver of stacked UM coverage. By law the 

presumption is that there is no waiver but this form defeats 

the presumption. The insured’s only choices were to passively 

accept or else to cancel.

Therefore the M9 waiver of uninsured motorist coverage is 

void.

Geico has not challenged this order on appeal. After summary 

judgment was granted, Geico amended its affirmative defenses to assert 

that Jervis “made an oral rejection of stacked UM coverage.”

The case went to a jury trial on the oral rejection issue and the jury 

ruled in favor of Geico.
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Section 627.727, Florida Statutes, lays certain ground rules for UM 

coverage. Subsection 627.727(1) sets the parameters for an insured’s 

written rejection of UM coverage or selection of lower uninsured limits than 

the bodily injury liability limits of a policy. In great detail, the statute sets 

out the mandatory procedure for an insured’s rejection of UM coverage or 

selection of lower limits:

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 

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. (emphasis added). The nine “shalls” in the statute lead to the 

conclusion that the written notice is a mandatory prerequisite to an 

insured’s waiver of the right to UM coverage.

Similar to the mandatory requirements of subsection (1), subsection 

627.727(9) contains mandatory requirements for the way that insurers 

can avoid the judicial doctrine of stacking:2

2 “Stacking is a judicial creation, based on the common sense notion that an 

insured should be entitled to get what is paid for. . . . Thus, if the insured pays 

separate premiums for uninsured motorist protection on separate vehicles, the 

insured should get the benefit of coverage for each individual premium paid.” 

United Servs. Auto. Ass’n v. Roth, 744 So. 2d 1227, 1229 (Fla. 4th DCA 1999)

(internal citation omitted).
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(9) Insurers may offer policies of uninsured motorist coverage 

containing policy provisions, in language approved by the 

office, establishing that if the insured accepts this offer:

(a) The coverage provided as to two or more motor vehicles 

shall not be added together to determine the limit of insurance 

coverage available to an injured person for any one accident....

***

In connection with the offer authorized by this 

subsection, insurers shall inform the named insured, 

applicant, or lessee, on a form approved by the office, of 

the limitations imposed under this subsection and that 

such coverage is an alternative to coverage without such 

limitations. If this form is signed by a named insured, 

applicant, or lessee, it shall be conclusively presumed that 

there was an informed, knowing acceptance of such 

limitations. . . .

§ 627.727(9), Fla. Stat. (2010) (emphasis added). Subsection (9) mandates 

notice to the insured in writing, on a form approved by the Office of 

Insurance Regulation,3 of the limitations allowed by the subsection.

Over the years, the legislature has created a statutory framework that 

promotes UM coverage. See Quirk v. Anthony, 563 So. 2d 710, 714 (Fla. 

2d DCA 1990). It is desirable for motorists to self-insure against potential 

loss rather than look to state taxpayers for financial assistance after an 

auto accident. In section 627.727, the legislature made plain its desire 

that insureds make “informed” and “knowing” decisions about UM 

coverage. §627.727(1), (9), Fla. Stat.

To the average insurance consumer, thinking about UM stacking is as 

enjoyable as a dramatic reading from the Internal Revenue Code. So that 

the insured need expend only minimal effort at becoming fully informed, 

the statute requires certain information, in writing, to be placed before an 

insured’s eyes as a mandatory prerequisite to an “informed” and “knowing” 

decision about UM coverage. We described this mandatory notice 

requirement in Government Employees Ins. Co. v. Douglas, 627 So. 2d 102, 

103 (Fla. 4th DCA 1993):

[P]ursuant to [section 627.727], to limit coverage validly, the 

insurer must first satisfy the statutorily mandated 

3 See § 624.05(3), Fla. Stat. (2010) (defining “Office” as used in the Insurance 

Code).
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requirements of notice to the insured and obtain a knowing 

acceptance of the limited coverage.

(Emphasis added). In affirming Douglas, the Supreme Court echoed our 

discussion of the mandatory notice requirement of section 627.727:

As recognized by the Fourth District Court of Appeal, to limit 

coverage validly, the insurer must satisfy the statutorilymandated requirement of notice to the insured and obtain a 

knowing acceptance of the limited coverage. An insurer who 

provides coverage with the section 627.727(9)(d) limitation is 

also statutorily required to file revised, decreased premium 

rates for such policies.

It is our opinion that these requirements were the quid pro 

quo given by the legislature to insurers for the right to limit 

uninsured motorist coverage by this exclusion. As further 

recognized by the Fourth District in its opinion in this case, if 

the policy exclusion is valid despite noncompliance with the 

statute, the provision of section 627.727(9)(d) is rendered 

meaningless.

Government Employees Ins. Co. v. Douglas, 654 So. 2d 118, 120-21 (Fla. 

1995) (emphasis added).

The record in this case is that Geico’s notice was void, which means 

that, in the eyes of the law, there was no section 627.727 notice at all. 

Without such notice, there can be no informed and knowing acceptance of 

the limitations on stacking. 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. The summary judgment ruling in 

this case conclusively established that the notice was void. Jervis’s second 

motion for summary judgment should have been granted, obviating the 

necessity of a trial. Similarly, at the jury trial, Jervis’s motion for directed 

verdict should have been granted. 

We do not find Belmont v. Allstate Ins. Co., 721 So. 2d 436 (Fla. 2d DCA 

1998), to be controlling. That case involved a policy issued in 1991, where 

the insurance company provided a section 627.727 notice in the form 

“recommended by the insurance commissioner.” Id. at 437 n.1. That 

notice provided that the insured’s selection of any option regarding UM 

coverage applied to “future renewals or replacements of such policy which 

are issued at the same bodily injury liability limits.” Id. A later policy 

increased bodily injury liability limits. On summary judgment, the trial 
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court held that the insured’s initial non-stacking election under the 1991 

policy controlled the later policy. Id. at 437.

Relying on the language of the initial notice, the Second District 

reversed, holding that because the coverage limits had increased, the 

insured was “entitled to stacked coverage unless Allstate can establish 

that the [insured] waived the right to a written rejection by making an oral, 

knowing rejection of non-stacked coverage. Id. at 438.4

We do not apply Belmont here for two reasons. First, Belmont involved 

an initial notice that complied with section 627.727; in this case there was 

no notice. Second, Belmont based its decision on “the contract language 

in Allstate’s form,” not on the requirements of section 627.727. Id. at 438 

n.2. Our decision is based on the language of the statute. Nothing in 

Belmont indicates that it turns on the absence of a statutory notice before 

the initial purchase of a policy. We note that the 2010 version of the 

statute appears to place the burden on the insured to request a UM 

coverage change on subsequent policies, and pay for such increased 

coverage, after the insured accepted coverage limitations, with proper 

notice, on an earlier policy. See n.4. Thus if the Belmont fact situation 

had occurred in this case, without the crucial language in its initial 

627.727 notice, Allstate could successfully argue that where the company 

gave proper notice prior to the insured’s initial selection of UM limitations, 

the burden was on the insured to request an increase in stacking or UM 

coverage on a renewal policy, and pay the increased premium, where 

bodily injury liability limits had increased.

We also decline to follow Muhammed v. Allstate Ins. Co., 582 So. 2d 768 

(Fla. 3d DCA 1991). That one paragraph decision involved a notice form 

that “arguendo departs from the one statutorily provided by section 

4 The 2010 version of section 627.727(9) gives effect to an initial acceptance of 

UM limitations, even where later policy limits are increased:

When the named insured, applicant, or lessee has initially accepted 

such limitations, such acceptance shall apply to any policy which 

renews, extends, changes, supersedes, or replaces an existing 

policy unless the named insured requests deletion of such 

limitations and pays the appropriate premium for such coverage. 

(Emphasis added).

Under this statute, the insured would be precluded from arguing that he or 

she requested different coverage on a replacement policy unless the appropriate 

premium for such coverage had been paid. See Roth, 744 So. 2d at 1230.
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627.727.” Id. at 768. There is too little description of the notice to 

determine if it is analogous to the void notice in this case.

For these reasons, we reverse the final judgment in favor of Geico and 

remand for the entry of a final judgment in favor of appellants entitling 

appellants to stacked UM coverage.

WARNER and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.