Lapham v. Government Employees Insurance Company

Filing 60

ORDER: 1. Defendant Government Employees Insurance Company's Motion for Final Summary Judgment 39 is GRANTED. 2. Plaintiff's Motion for Summary Judgment 35 is DENIED. 3. The Clerk is directed to enter JUDGMENT in favor of Defendant Government Employees Insurance Company and against Plaintiff Sheila Lapham. The Clerk is further directed to terminate all pending motions and close this case. Signed by Judge Charlene Edwards Honeywell on 3/31/2021. (GLP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SHEILA LAPHAM,
Plaintiff,
v.

Case No: 8:19-cv-02016-CEH-AAS

GOVERNMENT EMPLOYEES
INSURANCE COMPANY,
Defendant.
___________________________________/
ORDER
This cause comes before the Court upon Plaintiff’s Motion for Summary
Judgment (Doc. 35), and Defendant Government Employees Insurance Company’s
Motion for Final Summary Judgment (Doc. 39). Each party has responded and replied
(Docs. 42, 43, 44, 45). The Court held oral argument on the motions on February 12,
2021 (Doc. 58). The Court, having considered the parties’ submissions and being fully
advised in the premises, will grant Defendant Government Employees Insurance
Company’s Motion for Final Summary Judgment and deny Plaintiff’s Motion for
Summary Judgment.
I.

BACKGROUND
A. Undisputed Facts 1

The Court has determined the facts, which are undisputed unless otherwise noted, based on
the parties’ submissions, including declarations and exhibits, as well as the parties’ Amended
Stipulation of Agreed Material Facts Regarding the Parties’ Motions for Summary Judgment.
1

In January of 2005, Sheila Lapham (“Plaintiff”) and her husband, Mark
Lapham (collectively, the “Laphams”), completed and signed a Government
Employees Insurance Company (“GEICO”) application for a personal umbrella
insurance policy in New Jersey. 2 Doc. 47 ¶2. This application referenced the Laphams’
home address as “9 E. Edgewood Ave., Linwood, NJ.” Id. GEICO thereafter issued
personal umbrella policy number P6017036 to the Laphams in New Jersey, which did
not contain uninsured motorist (“UM”) coverage. Id. at ¶3. The policy was renewed
annually, with the last renewal encompassing the policy period from January 14, 2016
to January 14, 2017. Id. at ¶5. The policy named the Laphams as the insureds and
contained a limit of liability in the amount of $1,000,000. Doc. 34-3 at 4. The policy,
which provided that “insurance is provided with respect to the following coverages
and limits specified where a premium is stated,” listed a premium for a “2014 Toyota,”
with

the

minimum

required

limits

of

primary

insurance

listed

as

“$300,000/$300,000/$100,000.” Id.
The Laphams permanently relocated to Kissimmee, Florida in August of 2016.
Doc. 47 ¶6. According to GEICO’s customer service policy log (the “P-Log”), GEICO
received a change-of-address notice from the United States Postal Service on August
16, 2016. Id. at ¶7. Further, during the time of the Laphams’ permanent relocation to
Florida, Mark Lapham contacted GEICO on the Laphams’ behalf and advised of their
relocation. Id. at ¶6. The P-Log indicates that, on August 17, 2016, Mark Lapham

2

Plaintiff was married to Mark Lapham at all times material to this action. Doc. 47 at ¶1.
2

spoke with GEICO to transfer personal automobile and umbrella coverages to Florida
Id. at ¶8. Mark Lapham received identification cards from GEICO through e-mail
initiated with GEICO representative J. Morris, and he spoke with Laura Licul
(“Licul”), a customer service agent working in GEICO’s umbrella department. Id.
Indeed, a P-log entry at 12:58 p.m. on August 17, 2016, indicates that
representative J. Morris e-mailed identification cards to the Laphams, confirming the
transfer of their underlying automobile coverage to Florida. Id. at ¶10. A P-log entry
sixteen minutes later from Licul confirmed the transfer of the umbrella policy from
New Jersey to Florida:

Id.
Thus, as a result of the Laphams’ relocation, GEICO processed a state-to-state
move to Florida for the policy, which became effective on August 18, 2016. Id. at ¶9.
GEICO sent the policy packet to the Laphams at their Florida address. Id. at
¶12. The initial Florida policy covered the policy period from August 18, 2016 to
August 18, 2017. Id. GEICO’s underwriting records do not contain a Florida personal
umbrella policy application completed by Mr. Lapham. Id. at ¶11. In providing the
umbrella application from 2006 to Plaintiff’s counsel, a GEICO representative
explained that, upon GEICO’s processing of the state-to-state move, GEICO “did not
3

send a new umbrella application at that time.” Doc. 34-7 at 1. The policy declarations
contained an “Important Message,” which stated that “[t]his policy does not include
Uninsured or Underinsured Motorist Coverage unless endorsed above.” Id. Neither
UM coverage nor underinsured motorist coverage was endorsed in the policy. Doc.
47 ¶ 11. The policy, therefore, did not contain umbrella UM coverage. Plaintiff did not
make a claim during the August 18, 2016 to August 18, 2017 policy period. Id. at ¶14.
On June 28, 2017, GEICO sent a policy renewal packet to Plaintiff, which
covered the policy period from August 18, 2017 to August 18, 2018. Id. at ¶15. The
packet contained a cover letter, an electronic funds transfer notification, a declarations
page, policy forms and amendments, and a blank form entitled “GEICO’s Personal
Umbrella Policy Option Form Florida Uninsured Motorists Coverage (UM)” (the
“UM Option Form”). Id. The renewal packet made $1,000,000 in UM coverage
available to Plaintiff by way of the UM Option Form:
We offer UM Coverage at a limit of $1,000,000 for your
GEICO’s [sic] Personal Umbrella policy. UM coverage at a limit
of $1,000,000 on your GEICO’s [sic] Personal Umbrella policy
is excess over the required UM coverage limits of
$300,000/$300,000 provided by your underlying policy.

Id. at ¶16; Doc. 34-10 at 14.
Thus, the UM Option Form offered UM coverage to the Laphams for the
umbrella policy at a limit of $1,000,000. The UM Option Form advised Plaintiff, as a
then-current Florida personal umbrella policy policyholder, in relevant part:
IF YOU ARE A CURRENT FLORIDA PERSONAL
UMBRELLA POLICY POLICYHOLDER, this form must be
completed, signed and returned only if you wish to change the
4

UM coverage shown on your policy renewal, select UM
coverage if you do not currently carry UM coverage, reject UM
coverage, or if you are a current policyholder and you wish to
continue carrying UM coverage and we have not previously
received an option form from you.

Doc. 47 ¶16.
Plaintiff did not return the form or otherwise request umbrella UM coverage
during the 2017-2018 policy period. Id. at ¶¶16, 18. Like the initial policy issued to the
Laphams in Florida, the renewal policy’s declarations contained an “Important
Message,” which stated that “[t]his policy does not include Uninsured or
Underinsured Motorist Coverages unless endorsed above.” Id. at ¶17. Neither
uninsured nor underinsured motorist coverage was endorsed in the policy. Id.
Plaintiff was involved in an accident in Polk County, Florida on March 1, 2018
(the “Subject Accident”), which was during the 2017-2018 policy period of the policy.
Id. at ¶20; Doc. 10 ¶4; Doc. 18 ¶4. The policy listed the Laphams as insureds and
provided a limit of liability in the amount of $1,000,000. The policy indicated that
“insurance is provided with respect to the following coverages and limits specified
where a premium is stated.” Id. A premium was stated for a “2014 Toyota,” with the
minimum required limits of primary insurance stated as “$300,000/300,000/50,000.”
Id. The “2014 Toyota”—a 2014 Toyota Highlander—was involved in the Subject
Accident. Doc. 34-4 at 4; Doc. 34-5 at 63:24–25, 64:1–4.

5

Mark Lapham did not request umbrella UM coverage before the Subject
Accident. 3 Doc. 47 ¶19. Plaintiff has never requested umbrella UM coverage from
GEICO. Id. at ¶18. Following the Subject Accident, Plaintiff sought coverage under
her underlying GEICO automobile policy, as well as the umbrella policy. Id. at ¶21.
GEICO paid Plaintiff’s UM claim in full under the automobile policy, which is not at
issue in the instant action, but denied Plaintiff’s UM claim under the umbrella policy
on the basis that the policy did not contain umbrella UM coverage. Id. Thereafter,
Plaintiff initiated this action to recover excess UM coverage. Id. at ¶22.
B. Procedural History
In her operative complaint, Plaintiff alleges that when the umbrella policy was
issued for delivery to the Laphams in Florida on August 18, 2016, GEICO had not
complied with Section 627.727(2), Florida Statutes. Doc. 10 ¶20. As a result of this
failure, Plaintiff alleges that, at the time of the Subject Accident, the policy included
excess UM coverage in the amount of $1,000,000. Id. at ¶21. Plaintiff brings one claim
for “uninsured/underinsured motorists breach of contract” against GEICO, alleging
that she has asked GEICO to tender $1,000,000 in umbrella UM coverage available
under the policy, but GEICO has denied the existence of UM coverage under the

Mark Lapham did request umbrella UM coverage under the policy almost one year later
through a form dated February 11, 2019, however. (Doc. 42 at ¶19 n.1). GEICO received the
signed form on February 18, 2019, amended the policy to include umbrella UM coverage
effective February 19, 2019, and charged a premium for this coverage. Id. The parties agree
that the umbrella UM coverage is not retroactive. Id.
3

6

policy and refused to tender the $1,000,000 limits to compensate Plaintiff for damages
she sustained. Id. at ¶¶28–29.
Upon GEICO’s unopposed request, the Court bifurcated the issue of whether
the umbrella policy provides UM coverage from the issue of liability and damages,
instructing the parties to proceed on the coverage issue under the Case Management
and Scheduling Order. Doc. 23 at 1; Doc. 26 at 5.
II.

LEGAL STANDARD
Summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, with the affidavits, show there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the initial burden of stating the basis for its motion and
identifying those portions of the record demonstrating the absence of genuine issues of
material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1259–60 (11th Cir. 2004). That burden can be discharged if the moving party can show
the court that there is “an absence of evidence to support the nonmoving party’s
case.” Celotex, 477 U.S. at 325.
When the moving party has discharged its burden, the nonmoving party must
then designate specific facts showing that there is a genuine issue of material fact. Id. at
324. Issues of fact are “genuine only if a reasonable jury, considering the evidence
present, could find for the nonmoving party,” and a fact is “material” if it may affect
the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.
7

242, 248–49 (1986). In determining whether a genuine issue of material fact exists, the
court must consider all the evidence in the light most favorable to the nonmoving
party. Celotex, 477 U.S. at 323. But, a party cannot defeat summary judgment by
relying on conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 F. App’x 852, 858
(11th Cir. 2006). Summary judgment should be granted only if “the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The court
need consider only the cited materials, but it may consider other materials in the
record.” Fed. R. Civ. P. 56(c)(3).
The standard of review for cross-motions for summary judgment does not differ
from the standard applied when only one party files a motion, but simply requires a
determination of whether either of the parties deserves judgment as a matter of law on
the facts that are not disputed. Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328,
1331 (11th Cir. 2005). The Court must consider each motion on its own merits,
resolving all reasonable inferences against the party whose motion is under
consideration. Id. The Eleventh Circuit has explained that “[c]ross-motions for
summary judgment will not, in themselves, warrant the court in granting summary
judgment unless one of the parties is entitled to judgment as a matter of law on facts
that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.
1984) (quoting Bricklayers Int’l Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017 (5th
Cir. 1975)). Cross-motions may, however, be probative of the absence of a factual

8

dispute where they reflect general agreement by the parties as to the controlling legal
theories and material facts. Id. at 1555–56.
III.

ANALYSIS

In seeking summary judgment, Plaintiff argues that section 627.727(2), Florida
Statutes, required GEICO to make UM coverage available to Plaintiff “in the
application” up to the bodily injury liability limits of the umbrella policy, as the policy
was issued for delivery to Plaintiff in Florida. Doc. 35 at 5. Plaintiff claims that
GEICO’s failure to do so rendered that coverage a part of the policy by operation of
law. Id. Plaintiff’s argument relies heavily on the Florida Supreme Court’s decision in
Strochak v. Federal Insurance Company, 717 So. 2d 453 (1998). GEICO, on the other
hand, argues that it substantially complied with section 627.727(2) when it made
$1,000,000 in umbrella UM coverage available to Plaintiff in June of 2017. Doc. 39 at
5–9. GEICO claims that accepting Plaintiff’s argument would result in Plaintiff
effectively receiving free umbrella UM coverage forever, after GEICO’s substantial
compliance with its statutory obligations. Id.
The Court will (A) review section 627.727 of the Florida Statutes and (B)
analyze Strochak and GEICO’s failure to provide umbrella UM coverage before (C)
examining the argument for substantial compliance and other arguments. For the
reasons set forth below, GEICO is entitled to summary judgment.
A. Section 627.727(2), Florida Statutes
In enacting Florida’s UM statute, section 627.727 of the Florida Statutes, the
Florida Legislature aimed to provide broad protection for Florida citizens against
9

uninsured motorists. Travelers Commercial Ins. Co. v. Harrington, 154 So. 3d 1106, 1110
(Fla. 2014) (quoting Salas v. Liberty Mut. Fire Ins. Co., 272 So. 2d 1, 5 (Fla. 1972)). The
Legislature has amended the statute numerous times throughout the decades following
its enactment, making particularly significant amendments in the 1980s, leading one
Florida court to observe, “The relationship between the UM statute and the Florida
Legislature is similar to that between a fragile beach and a hurricane, except the annual
storm season in the legislature arrives a few months earlier.” Quirk v. Anthony, 563 So.
2d 710, 713 (Fla. 2d DCA 1990), approved and remanded sub nom., Travelers Ins. Co. v.
Quirk, 583 So. 2d 1026 (Fla. 1991). Two subsections of section 627.727(2) are relevant
for the Court’s present analysis: subsection (1) and subsection (2). The genesis of
subsection (2) in its current form stems from the Legislature’s substantial amendments
to section 627.727 in 1984. 4 See O'Brien v. State Farm Fire & Casualty Co., 999 So. 2d
1081, 1087 (Fla. 1st DCA 2009). At that time, the Legislature “explicitly exempted

4

The Legislature amended subsection (2) as follows:
(2) (a) The limits of uninsured motorist coverage shall be not less
than the limits of bodily injury liability insurance purchased by
the named insured, or such lower limit complying with the rating
plan of the company as may be selected by the named
insured. The limits set forth in this subsection and the provisions of
subsection (1) requiring uninsured motorist coverage to be provided in
every motor vehicle policy delivered or issued for delivery in this state,
shall not apply to any policy which does not provide primary liability
insurance which includes coverage for liabilities arising from the
maintenance, operation, or use of a specifically insured motor vehicle.
However, the insurer issuing such policies shall make available as a part
of the application, and at the written request of the insured, limits up to
the bodily injury liability limits contained in such policies ....

O'Brien, 999 So. 2d at 1087–88 (emphasis and alterations in original).
10

policies which do not provide primary liability insurance for specifically insured motor
vehicles from the requirements set forth in subsection (1).” Id.
While section 627.727(2) serves as the basis for Plaintiff’s claim, section
627.727(1) provides helpful context in the course of the analysis. That subsection
provides, in relevant part:
No motor vehicle liability insurance policy which provides
bodily injury liability coverage shall be delivered or issued for
delivery in this state with respect to any specifically insured or
identified motor vehicle registered or principally garaged in this
state unless uninsured motor vehicle coverage is provided therein
or supplemental thereto for the protection of persons insured
thereunder who are legally entitled to recover damages from
owners or operators of uninsured motor vehicles because of
bodily injury, sickness, or disease, including death, resulting
therefrom. However, the coverage required under this section is
not applicable when, or to the extent that, an insured named in
the policy makes a written rejection of the coverage on behalf of
all insureds under the policy.
...
Unless an insured, or lessee having the privilege of rejecting
uninsured motorist coverage, requests such coverage or requests
higher uninsured motorist limits in writing, the coverage or such
higher uninsured motorist limits 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 when an insured or lessee had
rejected the coverage.
...
The rejection or selection of lower limits shall be made on a form
approved by the office.

Fla. Stat. § 627.727(1).
Thus, subsection (1) governs only motor vehicle liability insurance policies that
provide “bodily injury liability coverage . . . with respect to any specifically insured or
11

identified vehicle registered or principally garaged” in Florida. Id. UM coverage must
be provided “therein or supplemental thereto” these types of policies, but an insured
named in the policy may reject this coverage. Id. An insured may also select limits of
UM coverage lower than his or her bodily injury liability limits. Id. “Subsection (1)
provides the specific form a written rejection of uninsured motorist coverage (or
selection of lower uninsured motorist coverage limits than the bodily injury limits
provided in the policy) must take,” and, further on in the statute, “establishes a
conclusive presumption that an insured who signs the form has made ‘an informed,
knowing rejection of coverage or election of lower limits on behalf of all insureds.’”
O'Brien, 999 So. 2d at 1084 (quoting Fla. Stat. § 627.727(1)).
On the other hand, section 627.727(2) provides:
The limits of uninsured motorist coverage shall be not less than
the limits of bodily injury liability insurance purchased by the
named insured, or such lower limit complying with the rating
plan of the company as may be selected by the named insured.
The limits set forth in this subsection, and the provisions of
subsection (1) which require uninsured motorist coverage to be
provided in every motor vehicle policy delivered or issued for
delivery in this state, do not apply to any policy which does not
provide primary liability insurance that includes coverage for
liabilities arising from the maintenance, operation, or use of a
specifically insured motor vehicle. However, an insurer issuing such
a policy shall make available as a part of the application for such policy,
and at the written request of an insured, limits up to the bodily injury
liability limits contained in such policy or $1 million, whichever is less.

Fla. Stat. § 627.727(2) (emphasis added).
“Subsection (2) explicitly provides that the requirements of subsection (1) do
not apply to non-primary policies.” O’Brien, 999 So. 2d at 1084. Subsection (2) applies
to umbrella policies, while subsection (1) is inapplicable to umbrella policies. See Quirk,
12

583 So. 2d at 1026 (“[W]e agree that [section 627.727(2)] requires an issuer of an
umbrella policy to notify an applicant of the availability of UM coverage.”); Tres v.
Royal Surplus Lines Ins. Co., 705 So. 2d 643, 645 (Fla. 3d DCA 1998) (noting that section
627.727(2) deals with non-primary policies and “differs substantially from section
627.727(1), which deals with primary policies”); Weesner v. United Servs. Auto. Ass’n,
711 So. 2d 1192, 1193 (Fla. 5th DCA 1998) (finding subsection (1) “inapplicable to
non-primary policies such as the umbrella policy,” but finding subsection (2)
applicable); see also Birmingham Fire Ins. Co. of Pa. v. Comcar Indus., Inc., 551 F. Supp.
2d 1340, 1343 (M.D. Fla. 2008) (stating than an umbrella policy is “a true excess
policy, and thus, it is excess over any primary policies”), clarified on denial of
reconsideration, No. 8:07-cv-762-T-24MSS, 2008 WL 2370141 (M.D. Fla. June 6,
2008).
Thus, under section 627.727(2), an insurer who issues an excess or umbrella
policy must “‘make available as a part of the application for such policy, and at the
written request of an insured,’ uninsured motorist coverage in an amount equal to the
bodily injury limits contained in the policy or one million dollars.” O’Brien, 999 So. 2d
at 1083 (quoting Fla. Stat. § 627.727(2)). One Florida court has interpreted the statute
as simply requiring an excess or umbrella insurer to offer an opportunity to obtain UM
coverage to the insured on the basis that “to make available” serves as a definition for
the word “offer.” Nieves v. N. River Ins. Co., 49 So. 3d 810, 814 (Fla. 4th DCA 2010);
see Zamora v. Ace Am. Ins. Co., 830 F. App’x 296, 298 (11th Cir. 2020) (“Florida courts
have interpreted ‘make available’ in § 627.727(2) as meaning ‘to offer,’ and we
13

agree.”). Further, the statute does not define “application,” but one district judge of
this Court recently recognized that “the plain meaning of the word recognizes the
importance of timing of the offer of UM coverage by expressly requiring it to be a part
of the application for coverage and prior to the purchase and delivery of the umbrella
policy.” Rodriguez v. Geico Gen. Ins. Co., No. 6:19-cv-1862-PGB-GJK (M.D. Fla.), Doc.
145 at 7 (original emphasis removed) (internal quotation marks omitted).
More broadly, courts have construed the statute as requiring notification of the
availability of UM coverage to the applicant. For example, in Travelers Insurance
Company v. Quirk, the Florida Supreme Court held that section 627.727(2) “requires an
insurer of an umbrella policy to notify an applicant of the availability of UM
coverage.” 583 So. 2d at 1029. Similarly, in Tres v. Royal Surplus Lines Insurance
Company, the Third District Court of Appeal held that “[b]asically it only requires an
issuer of a non-primary policy to notify an applicant of the availability of UM
coverage.” 705 So. 2d at 645. Indeed, the “ultimate intention” of section 627.727(2) is
“making known to the insured the availability of non-primary UM coverage” so that
the insured can “make a choice.” Id.
B. Strochak and Failure to Provide Umbrella UM Coverage
In moving for summary judgment, Plaintiff relies on the Florida Supreme
Court’s decision in Strochak v. Federal Insurance Company, 717 So. 2d 453 (1998), to
argue that GEICO’s failure to offer UM coverage to Plaintiff under section 627.727(2)

14

operates to render such coverage part of the policy by operation of law. The Court
begins with an overview of Strochak before turning to Plaintiff’s remaining arguments.
i. Strochak
In Strochak, the Eleventh Circuit Court of Appeals certified a question to the
Florida Supreme Court, which reframed the question as follows:
Whether an excess carrier has a duty to make available the
uninsured motorists (UM) coverage required by section
627.727(2), Florida Statutes (Supp. 1990), to an insured
under an existing policy on vehicles which had never been
registered or principally garaged in Florida when any
vehicle, covered or subsequently added, first becomes
registered or principally garaged in Florida and when the
policy is delivered or issued for delivery in Florida.
717 So. 2d at 454.
Rita Strochak suffered injuries when she was struck by a “phantom vehicle” in
1992. Id. In 1985, long before the automobile accident, Ms. Strochak’s husband
applied for a primary liability policy and an excess liability policy in New Jersey. Id.
During the application process in New York, he executed a written rejection of excess
UM coverage. Id. The insurer thereafter issued an excess policy, effective June 17,
1985, which covered two residences maintained by the Strochaks: a co-op in New
Jersey, which was listed at the primary residence, and a house located in Florida. Id.
The excess policy also covered three vehicles, including the Lincoln automobile
involved in the accident. At the time when the insurer issued the excess policy, none
of the vehicles were registered or principally garaged in Florida; the Lincoln was
registered in New York and principally garaged in New Jersey. Id.
15

Ms. Strochak’s husband died in October of 1987. Id. Shortly thereafter, Ms.
Strochak purchased the Lincoln from the Strochaks’ business and had it shipped to
Florida. Id. In March of 1989, Ms. Strochak registered the Lincoln in Florida. She also
obtained a primary automobile liability policy from the insurer for the Lincoln, which
listed a Florida address as her address. Id.
For the 1989 renewal of the excess policy, although Mr. Strochak had died, the
insurer mailed a “Masterpiece” policy addressed to him at the New Jersey residence.
Id. Included with the policy was a letter that explained the newly created Masterpiece
program; the Masterpiece policy sent to Mr. Strochak in 1989 replaced all excess
policies held by him. Id.
Significantly, in June of 1990, the Lincoln, now registered and principally
garaged in Florida, was added to the Masterpiece policy. Id. In June of 1992, the
Masterpiece policy was renewed, listing the Lincoln as being garaged in Florida. Id. In
November of 1992, when this renewed Masterpiece policy was in effect, the accident
occurred. Id. Ms. Strochak sued the insurer, seeking excess UM benefits under the
excess policy and claiming entitlement under section 627.727(2). Id.
In a plurality opinion, the court first rejected the insurer’s argument that Florida
law did not apply under Florida’s choice of law rules because the policy was executed
in New Jersey. Id. at 455. The court explained that, unlike another case in which the
court found another jurisdiction’s law to apply where the insurer was unaware of the
insured’s move or connection to Florida, the insurer in Strochak knew of Ms.

16

Strochak’s move and connection in Florida, as the Lincoln was registered in Florida,
principally garaged in Florida, and added to the Masterpiece policy in 1990, which
contained Florida policy terms and signatures and was sent to Ms. Strochak’s Florida
address. Id. The court also recognized that, when compared to the 1985 policy, the
1990 policy provided different coverage and was issued in the name of a different
insured—Ms. Strochak. Id. As such, the court concluded that the 1990 Masterpiece,
which provided excess liability coverage for the Lincoln, was not the same policy that
was issued and delivered in New Jersey in 1985. Id. On this basis, the court presumed
that the parties bargained for, and were familiar with, Florida law. Id.
Turning to the issue of whether section 627.727(2) requires insurers of excess
policies to offer excess UM coverage to insureds when a vehicle, covered or
subsequently added, first becomes registered or principally garaged in Florida, the
court rejected the insurer’s argument that, because no application was generated after
1985, it had no obligation to offer excess UM coverage to Ms. Strochak. Id. The court
held that the duty to offer excess UM coverage was created in June of 1990, “when
the excess motor vehicle liability policy was first delivered in Florida and included
coverage” for the Lincoln. Id. Although an insurer’s representative testified that
coverages were changed through a worksheet, which represented a departure from preMasterpiece policy practice in which the insurer required an application any time a
new coverage was requested, the court explained that whether the new coverage for
the Lincoln may have been added via a worksheet rather than an application was a
“distinction without a difference.” Id. The court highlighted that, as of June of 1990,
17

the insurer was aware of the location of the risk and “had a duty under the statute to
offer [Ms. Strochak] UM coverage in an amount equal to the liability limits of the 1990
Masterpiece excess policy.” 5 Id. at 455–56. Consequently, the court answered the
reframed question in the affirmative. Id. at 456. Thus, the Strochak court “held that the
insurer was required under Florida law to offer excess uninsured motorist benefits in
1990, when it first delivered the new policy covering the car in Florida.” State Farm
Mut. Auto. Ins. Co. v. Roach, 945 So. 2d 1160, 1167 (Fla. 2006).
Plaintiff argues that, like Strochak, the duty for GEICO to offer excess UM
coverage to Plaintiff was created when “the Florida Umbrella Policy” was first
delivered to the Laphams in Florida “and included coverage for the Florida-registered
vehicle [Plaintiff] was driving when she was injured in the crash.” Doc. 35 at 8. There
is no dispute that, upon the Laphams’ move to Florida, GEICO “processed” a stateto-state move for the umbrella policy, which GEICO had initially issued to the
Laphams in New Jersey, nor is there any dispute that, like Strochak, the Laphams did
not complete an application upon the processing of this state-to-state move. Indeed,
the parties agree that GEICO’s underwriting records do not contain a Florida personal
umbrella policy application completed by Mr. Lapham, and GEICO’s representative
confirmed that, upon the processing of the state-to-state move, GEICO “did not send
a new umbrella application at that time.” Doc. 34-7 at 1.

In 1992, the Legislature added “or $1 million, whichever is less” to the end of final sentence
of Section 627.727(2). Fla. Stat. § 627.727(2) (Supp. 1992).
5

18

As the above analysis of Strochak demonstrates, the plurality found that the 1990
Masterpiece policy differed from the policy that had been issued to Mr. Strochak in
1985, for which he had signed a written rejection of UM coverage, because the
Masterpiece policy provided a different policy number from the 1985 excess policy,
was issued to a different named insured than the 1985 policy, and contained different
terms than the 1985 policy. On this basis, the court held that Florida law applied,
evaluated the insurer’s duty under section 627.727(2), and found that the insurer’s duty
to offer excess coverage for the Masterpiece policy, which differed from the 1985
policy, was created when the policy was first delivered in Florida and included
coverage for the Lincoln automobile involved in the subsequent accident. 6 In such
instance, even though there was no “application,” the insurer had a duty. Here, as
discussed, a state-to-state move was simply “processed” for the policy. In seeking to
analogize this action to Strochak, Plaintiff does not address whether, following the
processing of the state-to-state move, the policy, which was effective from only August
18, 2016 to August 18, 2017, constituted the same policy or a different policy.
However, GEICO has not made any argument that Florida law does not apply. The
Court therefore does not find Strochak to be distinguishable on this basis.

Florida’s First District Court of Appeal articulated this point in O’Brien: “Although the
certified question in Strochak referred . . . to an insurer’s duty under an existing excess policy,
the plurality concluded that ‘the 1990 Masterpiece policy that provided excess liability
coverage for the 1984 Lincoln was not the same policy that was issued and delivered in New Jersey
in 1985 . . . .’” 999 So. 2d at 1086 (emphasis in original).

6

19

Regardless, a significant distinction between Strochak and this case exists. As
GEICO highlights, the insurer in Strochak did not make available UM coverage at any
time after the excess policy was issued and delivered in Florida. Doc. 39 at 8. Here,
the parties agree that GEICO sent a renewal policy packet to Plaintiff on June 28,
2017, which contained the UM Option Form. Doc. 47 ¶¶15–16; Doc. 34-10 at 14. The
parties agree that this form made available $1,000,000 in UM coverage to Plaintiff. In
the form, GEICO clearly offered “UM Coverage at a limit of $1,000,000 for your
GEICO’s [sic] Personal Umbrella policy.” Doc. 34-10 at 14. The policy also had a
limit of liability in the amount of $1,000,000. Although Plaintiff counters that this
distinction is insignificant because Strochak “does not address whether the insurer
made the insured aware of the availability of excess UM coverage,” she also supplies
a copy of the insurer’s answer brief to the Eleventh Circuit to argue that Ms. Strochak
received a letter and a “Notice of Uninsured Motorist Options” that “explained the
availability of optional excess uninsured motorist coverage.” Doc. 43 at 4 (internal
quotation marks omitted). GEICO replies that Plaintiff’s argument mischaracterizes
the timeline of the insurer’s UM coverage offers in Strochak. Doc. 45 at 2.
Of course, relying on one brief submitted to a court to determine the factual
background of a case is problematic, as parties often set forth their own
characterizations of the facts in their briefs. The answer brief’s factual statement
section underscores this point, as the insurer found “it necessary to correct and clarify
the statement of facts provided by” Ms. Strochak regarding the policies, given that her
initial brief contained factual assertions which were “simply not supported by the
20

record.” Doc. 43-1 at 5. Thus, the answer brief is an unreliable source for determining
the facts of Strochak. Notwithstanding this unreliability, a review of the answer brief
does not support Plaintiff’s argument. 7
ii. Effect of Failure to Make UM Coverage Available
What effect, then, does GEICO’s subsequent offer of umbrella UM coverage
have on GEICO’s purported failure to offer such coverage upon delivery? Plaintiff’s
response is simple: no effect whatsoever. Plaintiff contends that “[w]here, as here, an
excess or umbrella insurer fails to offer uninsured motorist coverage as required by
section 627.727(2), the coverage becomes part of the policy by operation of law.” Doc.
35 at 8. Plaintiff argues that “GEICO is not entitled to cure its initial failure” to comply
with section 627.727(2) and “[a]ffect a change in the availability of UM coverage under

According to the answer brief, for the 1989-1990 renewals, the insurer made several
marketing changes, which included renaming several of its policies as “Masterpiece” policies.
Doc. 43-1 at 8. “When a policy was renewed under the Masterpiece name, the named insured
received a letter explaining the new name of the policies,” and this letter additionally
explained “the availability of optional excess uninsured motorists coverage.” Id. In the
context of discussing these renewals, the answer brief represents that Ms. Strochak “received
this Notice of Uninsured Motorists Options with her June 17, 1989 renewal.” Id. No other
occasions are mentioned. However, the plurality opinion in Strochak noted that the “1989
renewal of the excess policy” was addressed to Mr. Strochak in New Jersey and explained the
“newly created Masterpiece program.” 717 So. 2d at 454. More importantly, the Strochak
plurality explained that the excess policy was not delivered in Florida until June of 1990 (and
the Lincoln was not added to the Masterpiece policy until June of 1990). Id. at 454–55.
According to the plurality, the insurer’s duty to offer excess UM coverage under section
627.727(2) was created only in June of 1990—long after June of 1989—when the excess motor
vehicle liability policy was first delivered to Florida and included coverage for the Lincoln.
Thus, any attempt by the insurer in Strochak to offer UM coverage in June of 1989, prior to
the creation of the duty under Florida law, is distinguishable from the instant action. Finally,
although the answer brief represents that Ms. Strochak “admitted that she was aware at least
since the time that she purchased the car rental business in 1992 of the purpose and nature of
uninsured motorists coverage,” this assertion does not indicate that Ms. Strochak was aware
of an excess or umbrella insurer’s duty under Florida law to offer UM coverage.
7

21

the policy as a matter of law by including an option form buried in a subsequent
renewal packet.” Id. at 12 (emphasis added). These arguments fall short.
In seeking to hold GEICO to provide umbrella UM coverage, Plaintiff relies
principally on Ferreiro v. Philadelphia Indemnity Insurance Company, 816 So. 2d 140 (Fla.
3d DCA 2002). In Ferreiro, the appellant purchased an optional “Rental Supplemental
Liability Insurance Excess Policy” from the appellee-insurer when she rented an
automobile from Budget-Rent-A-Car. Id. at 140. The appellant was the insured under
the policy, which provided $1,000,000 in limits of liability insurance. Id. No UM
benefits were made available to the appellant, the policy specifically excluded UM
benefits, and the written policy was not provided to the plaintiff. Id. at 141. Soon after
renting the automobile, the appellant was serious injured in an accident with an
uninsured motorist. Id. The appellant thereafter brought a declaratory judgment
action, claiming the right to UM coverage because of the defendant’s violation of
627.727(2). Id. The trial court held that the fact that section 627.727(1) did not require
Budget, as a self-insured rental company, to offer or provide primary UM coverage on
the short term rental negated the obligation of the carrier under section 627.727(2) to
offer that coverage. Id.
The Third District Court of Appeal reversed, finding that the lack of such a
requirement under 627.727(1) to offer or provide UM coverage on the short term rental
“ha[d] nothing to do with” the carrier’s obligation under section 627.727(2) to offer
that coverage. Id. The court articulated that “excess coverage may arise by statutory
requirement, even when no underlying or primary UM coverage exists at all,” and,
22

“[i]n any event, the statute provides for no such exception,” but requires that the
protection be provided, “particularly in view of the often expressed Florida public
policy in favor of UM coverage.” Id. The court also explained:
Our conclusion is based simply upon the clear requirements
of the statute, which apply directly to the present set of facts,
and a long, uninterrupted chain of Florida cases which say
that the failure of any motor vehicle insurer, specifically
included an excess or even an umbrella carrier, to abide by
pertinent statutory requirements concerning offers or
provisions of UM protection results in its being held to that
coverage.
Id.
As GEICO points out, unlike the instant action, UM coverage under the excess
policy was never made available to the appellant in Ferreiro. Doc. 42 at 7. Further, the
“long, uninterrupted chain of Florida cases” standing for the proposition that an
umbrella carrier’s failure to abide by “pertinent statutory requirements concerning
offers or provisions of UM protection results in its being held to that coverage” are
distinguishable or do not discuss umbrella insurers being held to coverage. 8 Therefore,

With the exception of Glens Falls Insurance Company v. Russell, none of the cases cited by the
Ferreiro court involve a subsequent offer of UM coverage to an insured. In Glens Falls, the
insured loaned his vehicle to the appellees, who were involved in an accident in September of
1983. 527 So. 2d 228, 229 (Fla. 4th DCA 1988). The carrier notified the insured only a few
weeks prior to the 1983 accident, which was “several years” after the insured’s purchase of
his umbrella policy, that “he could obtain uninsured motorist protection within the limits of
his umbrella policy and that his $100,000 uninsured motorist policy could be increased.” Id.
On appeal nearly five years later, the Fourth District Court of Appeal held that “[w]ithout
proper notification of such offer of UM coverage on the excess policy, an insured is entitled
to the liability insurance as uninsured motorist coverage.” Id. However, in making this
conclusion regarding the excess policy, the court cited to section 627.727(1) as it existed prior
to the Legislature’s 1984 amendments. Significantly, “[a] key amendment to section 627.727
occurred in 1984, when the legislature substantially rewrote subsections (1) and (2), and for
the first time explicitly exempted policies which do not provide primary liability insurance for
8

23

Plaintiff’s argument that the Court must find that any failure by GEICO to offer UM
coverage under 627.727(2) results in the coverage becoming part of the policy by
operation of law is unavailing.
Plaintiff further claims that “GEICO is not entitled to cure its initial failure” to
comply with section 627.727(2) “and [a]ffect a change in the unavailability of UM
coverage under the policy as a matter of law by including an option form buried in a
subsequent renewal packet.” Doc. 35 at 12 (emphasis added). Plaintiff relies on Adams
v. Aetna Casualty & Surety Company, 574 So. 2d 1142 (Fla. 1st DCA 1991), for this
proposition. GEICO distinguishes Adams on the basis that the insurer’s obligation in
Adams differs from GEICO’s obligation under section 627.727(2) to “make available”
UM coverage to Plaintiff. Doc. 42 at 7–8. The Court agrees with this distinction.
Adams involved primary policies and the written rejection requirement under
section 627.727(1) before the Legislature’s 1984 amendments to section 627.727. As
one other court explained, “section 627.727(2), which deals with non-primary policies
. . . differs substantially from section 627.727(1), which deals with primary policies as

specifically insured motor vehicles from the requirements set forth in subsection (1).” Nieves,
49 So. 3d at 813 (emphasis added) (internal quotation marks omitted). The 1984 amendments
“limit[ed] the applicability of the written rejection and minimum limit requirements to
policies providing primary liability coverage for a motor vehicle.” O’Brien, 999 So. 2d at 1088
(quoting Hooper v. Zurich Ins. Co., 789 So. 2d 368, 369–70 (Fla. 2d DCA 2001)). “Therefore,
such requirements would not apply to excess or umbrella-type policies which may cover
specific vehicles . . . .” Id. (quoting Hooper, 789 So. 2d at 369–70). Thus, the law presently
treats umbrella carriers differently from primary carriers and, although Ferreiro relies upon the
statute following the 1984 amendments, UM coverage under the excess policy was never
made available to the appellant.

24

involved in . . . Adams . . .” Tres, 705 So. 2d at 645. In Adams, the appellant was an
insured under two policies of automobile insurance issued to his father: an Aetna
policy that insured two automobiles and set forth limits of coverage at $100,000 for
bodily injury liability insurance and $10,000/$20,000 for UM/UIM insurance; and a
Standard Fire policy that insured the appellant’s automobile and included limits of
$100,000 for bodily injury liability coverage and $10,000/$20,000 for UM/UIM
coverage. 574 So. 2d at 1144. The Aetna policy was issued on November 1, 1978, and
renewed annually thereafter, while the Standard Fire policy was issued on May 1,
1981, and also renewed annually thereafter. Id. The appellant was struck by a car on
May 7, 1983. Id. The appellant sued Aetna, asserting a claim for UM/UIM coverage
equal to the limits of the liability coverage under each policy and contending that his
father, as named insured, did not make an informed and knowing rejection or selection
of the UM/UIM limits lower than the liability limits in each policy. Id.
The First District Court of Appeal reversed the trial court’s directed verdict and
remanded for a new trial, finding that disputed material issues of fact concerning the
sufficiency of the appellant’s father’s rejection of UM/UIM limits under section
627.727(1) remained for resolution by a jury. Id. The court noted that the renewal of
the policies in November of 1982 and May of 1983, the last renewals immediately
preceding the accident, were governed by the 1982 version of section 627.727(1), but
also observed that the Legislature amended section 627.727(1), effective October 1,
1982, to require the rejection of UM/UIM covered in the statute be in writing. Id. at
1146. The court explained that when the policies were renewed after October 1, 1982,
25

they became new contracts required to conform to the newly-amended law “and
Aetna’s obligations and [the appellant’s father’s] correlative rights regarding statutorily
required UM/UIM coverage necessarily became an inherent part of the renewal
policy.” Id. at 1148. Thus, “Aetna could avoid the statutorily-required UM/UIM limits
in [the appellant’s father’s] policies only by obtaining a valid written rejection conforming to
the requirements of the statute at the next renewal of each policy following October 1,
1982 . . . .” Id. (emphasis added).
However, the court explained, Aetna “adduced no evidence to prove it even
undertook to obtain validly signed written rejections or selections of lower limits” from
the appellant’s father, but instead proved “only that it had sent appropriate notices of
available UM/UIM coverage to [the appellant’s father] with the premium notices and
that the forms so enclosed for requesting UM/UIM limits higher than those specified
on the face of each original policy were not returned” by the appellant’s father. Id.
Critically, the court explained that the brochures did not inform the appellant’s father
of Aetna’s statutory obligation under section 627.727(1) either to obtain a written
rejection of the statutorily required UM/UIM coverage or renew the policy with
UM/UIM limits coextensive with the liability limits; they merely advised that he could
choose to change the UM/UIM limits if he desired. Id. at 1148–49. In addressing
waiver, the court found that applying the statute to the facts that could be found by a
jury and finding waiver “would completely emasculate the obvious statutory scheme.”
Id. at 1153. The court articulated that doing so would authorize an insurer “guilty of
unlawfully issuing policies in direct violation of the statute to avoid the consequences
26

dictated by the statutory language through the simple expedient of mailing out
brochures such as the ones sent to” the appellant’s father. Id. Giving this effect to the
statute, the court warned, would revert the law as it existed prior to the Legislature’s
enactment of section 627.727 and “bind an insured to the facial limits of a policy
delivered to and accepted by an insured without objection to the stated UM limits.” Id.
(emphasis added). Finally, the court concluded that upholding waiver would “prompt
the very evil sought to be cured by the amended legislative requirement of a valid written
rejection of statutorily required UM/UIM coverage.” Id. (emphasis added).
Therefore, the Adams court’s holding was grounded in the language of section
627.727(1), prior to the Legislature’s 1984 amendments. The case involved primary
policies and the holding was tailored to the written rejection requirement under section
627.727(1). In contrast, section 627.727(2) does not currently require an insured to
make a written rejection of excess or umbrella UM coverage; it requires only an excess
or umbrella carrier to “‘make available as part of the application for such policy, and
at the written request of an insured,’ uninsured motorist coverage in an amount equal
to the bodily injury limits contained in the policy or one million dollars.” O’Brien, 999
So. 2d at 1083 (quoting Fla. Stat. § 627.727(2)). This distinction also separates the
brochures in Adams, which advised the appellant’s father only that he could choose to
change his UM/UIM coverage for non-umbrella policies, from the UM Option Form
here. The parties do not dispute that this form made $1,000,000 in UM coverage
available to Plaintiff or that Plaintiff did not return the form or otherwise request
coverage during the 2017-2018 policy period. Plaintiff admits that Adams addresses “a
27

different section of 627.727,” but asserts, without further support, that “the premise
should apply to umbrella coverages as well.” Doc. 43 at 13. The Court disagrees.
Consequently, Plaintiff’s argument that GEICO may not cure an initial failure to
comply with section 627.727(2) and affect a change in UM coverage under the policy
by providing the UM Option Form fails. 9
Based on the foregoing analysis, notwithstanding the absence of any genuine
issue as to any material fact, Plaintiff has not demonstrated that she is entitled to
judgment as a matter of law. Therefore, Plaintiff’s Motion for Summary Judgment is
due to be denied.
C. “Substantial Compliance” and Other Arguments
In moving for summary judgment, GEICO argues that it substantially complied
with section 627.727(2) by making $1,000,000 in umbrella UM coverage available to
Plaintiff with the renewal policy. Doc. 35 at 5–9. GEICO also makes a policy
argument that accepting Plaintiff’s argument on motion for summary judgment would
effectively give Plaintiff free UM coverage forever. For the reasons articulated below,
GEICO’s Motion for Final Summary Judgment is due to be granted.

Plaintiff also argues that, in accordance with Adams, the insurer must establish that the
insured gained actual knowledge of his or her statutory rights under § 627.727 and then
waived those rights. Doc. 36 at 12. Plaintiff claims that the record lacks any evidence that
Plaintiff was aware of the UM Option Form in the renewal packet. Id. The Adams court stated
that, for the insurer to prevail on its waiver defense, it was required to prove that it sent the
brochures to the appellant’s father in 1983, that the appellant’s father gained actual knowledge
of his statutory rights under section 627.727 and the insurer’s failure to issue the policies in
accordance with such requirements, and that he thereafter waived his statutory rights. 574 So.
2d at 1152–53. Here, GEICO does not raise a waiver defense. As such, this argument is
unavailing.

9

28

Styling its conduct as “substantial compliance” with section 627.727(2),
GEICO relies on Travelers Insurance Company v. Quirk, 583 So. 2d 1026 (Fla. 1991), to
argue that its offer of $1,000,000 in umbrella UM coverage to Plaintiff via the UM
Option Form demonstrates substantial compliance with the requirement of section
627.727(2) to notify the applicant regarding the availability of UM coverage. Doc. 35
at 5. In Quirk, the Florida Supreme Court reviewed the language of section 627.727(2)
and explained that the statute requires an umbrella policy issuer to “notify” the
applicant of UM coverage availability. 583 So. 2d at 1029. As articulated in the District
Court of Appeal’s opinion for that case, the insured’s broker did not request UM
coverage on behalf of the insured, but filed a written rejection signed by an employee
in his office because he believed that the insured did not desire coverage. Quirk, 563
So. 2d at 716. The Florida Supreme Court held that the insurer “substantially
complied” with the statute’s “notice requirement” when the insurer asked that a
written form for rejection of UM coverage be executed, which, according to the court,
“exceeded the requirements of the statute.” Quirk, 538 So. 2d at 1029.
Quirk is factually distinguishable. Here, Plaintiff did not sign a written rejection
requested by GEICO. However, the concept of substantial compliance advances
policy considerations that apply to this case. 10

And GEICO invokes a policy

GEICO also argues that Plaintiff “was on notice, or reasonably should have been on notice,
that the Policy did not contain UM coverage” because “the initial Policy and the renewal
Policy declarations” advised that UM coverage was unavailable unless endorsed and UM
coverage was not endorsed. Doc. 39 at 7–8. GEICO contends that “Plaintiff could not have
reasonably believed to the contrary because the New Jersey policy similarly did not contain
10

29

consideration that accepting Plaintiff’s argument would operate to provide Plaintiff
with free umbrella UM coverage forever.
As previously discussed, the “ultimate intention” of section 627.727(2) is
“making known to the insured the availability of non-primary UM coverage” so that
the insured “can make a choice.” Tres, 705 So. 2d at 645. “[B]asically it only requires
an issuer of a non-primary policy to notify an applicant of the availability of UM
coverage.” Id. Under Strochak, the duty to offer UM coverage under section 627.727(2)
is created when the umbrella policy is first delivered in Florida and provides coverage
for a motor vehicle registered or principally garaged in Florida. Assuming the policy
is a new policy (Plaintiff presumably would not argue otherwise, given the holding in
Strochak) and Florida law applies (there has been no contention to the contrary),
Strochak makes clear that this principle stands in the absence of an “application.”
Reviewing the specific facts here, the parties agree that the Laphams relocated
to Florida in 2016, and Plaintiff offers an entry from the P-Log stating “DMVR FL”
for the 2014 Toyota to demonstrate GEICO’s verification with the Florida DMV,
which GEICO does not challenge or dispute. Doc. 34-4 at 7; Doc. 35 at 4. As such, a
reasonable inference to draw is that the 2014 Toyota was registered or principally
garaged in Florida. Thus, under Strochak, this duty arose for GEICO upon the delivery
of the policy to the Laphams in Florida following the processing of the state-to-state
transfer.

umbrella UM coverage.” Id. However, this strays from the requirements of section 627.727(2)
by focusing on notice of the unavailability of coverage.
30

However, unlike Strochak, in which there was not a subsequent offer of UM
coverage, GEICO made available UM coverage to Plaintiff less than a year after the
delivery of the umbrella policy to the Laphams in Florida and long before the Subject
Accident. Although GEICO did not make available UM coverage during the initial
policy period of the policy upon delivery, it made the coverage available upon the
renewal of the policy and prior to the commencement of the next policy period, during
which time the Subject Accident occurred. Indeed, the UM Option Form made the
availability of non-primary UM coverage known to Plaintiff so that she could make a
choice. Specifically, the UM Option Form required Plaintiff, as a current Florida
personal umbrella policy policyholder, to complete, sign, and return the form only if
she: (1) desired to change the UM coverage shown on the policy renewal; (2) select
UM coverage, if she did not currently carry UM coverage; (3) reject UM coverage; or
(4) if she was a current policyholder and desired to continue carrying UM coverage
and GEICO had not previously received an option form. 11 The UM Option Form

Neither party has submitted any proposed interpretation of the UM Option Form’s use of
“reject UM coverage.” Doc. 34-10 at 14. Although Plaintiff argues that the policy provides
coverage by operation of law as a result of GEICO’s failure to make UM coverage available
to Plaintiff at the time of delivery, the parties agree that the policy, as it existed from the
August 18, 2016 to August 18, 2017 policy period, did not contain an endorsement of UM
coverage, and Plaintiff has not made any argument that GEICO should be held to provide
the UM coverage as a result of Plaintiff’s failure to return the form. Indeed, the only argument
that Plaintiff makes regarding the language of the UM Option Form is a speculative one which
focuses on receipt of UM coverage, in which Plaintiff asserts that the form “would seem to
require the insured to fill out and complete the form even if [the insured] requested UM
[coverage] at the time of purchase,” thereby leading Plaintiff to claim that “GEICO’s mode
of operation makes it doubly hard for the insured to receive umbrella UM required to be offered
by the statute.” Doc. 44 at 8 (emphasis added). Plaintiff further asserts that “GEICO would
seem to employ a two-step process that makes it less likely the insured will take the steps
11

31

clearly offered UM coverage at a limit of $1,000,000 for the umbrella policy. It is
undisputed that Plaintiff did not return the form or otherwise request umbrella UM
coverage. As such, GEICO made available the UM coverage to Plaintiff so that she
could make a choice. She did not elect to obtain UM coverage. Consequently, the
umbrella policy during the August 18, 2017 to August 18, 2018 policy period did not
provide UM coverage. The Subject Accident occurred during this August 2017 –
August 2018 policy period.
But Plaintiff seeks to take this failure to make umbrella UM coverage available
to her upon the policy’s initial delivery to the Laphams in Florida to override GEICO’s
subsequent offer of such coverage for the operative policy period, during which time
the Subject Accident occurred. Indeed, the facts unique to this case differ from a
scenario in which the Subject Accident occurs after GEICO’s failure to make available
UM coverage upon delivery of the umbrella policy, but before any subsequent offer of
such coverage. In such an instance, Plaintiff would not have been entitled to any UM
benefits under the umbrella policy as a result of GEICO’s failure to notify her of the
availability of that coverage, not as a result of her election. Section 627.727(2) seeks to
prevent this type of harm by requiring issuers of umbrella policies to ensure that the
insured is aware of “the availability of non-primary UM coverage” so that the insured
“can make a choice.” Tres, 705 So. 2d at 645. Section 627.727 does not treat issuers of
umbrella policies the same as issuers of non-umbrella policies. Section 627.727(2) does

necessary to receive umbrella UM coverage,” but does not cogently tie this assertion to the
facts of the case. Id. (emphasis added).
32

not contain the same requirements as section 627.727(1). The subsections “differ[]
substantially.” Tres, 705 So. 2d at 645. Florida law does not require an excess or
umbrella liability insurer to provide UM coverage, but instead simply requires such an
insurer “at least to inform its insureds of that option.” State Farm Fire & Casualty Co. v.
Walker, No. 16-14043-CIV-ROSENBERG/LYNCH, 2017 WL 962492, at *2 (S.D.
Fla. Feb. 28, 2017), aff’d, 749 F. App’x 839 (11th Cir. 2018). It is undisputed that
GEICO made known to Plaintiff, the insured, the availability of non-primary UM
coverage at the time of renewal of her policy and before the Subject Accident.
The Court is cognizant that “section 627.727 is to be broadly and liberally
construed,” Nieves, 49 So. 3d at 813, and of the “public policy in favor of UM
coverage,” Ferreiro, 816 So. 2d at 141, but finding that the umbrella policy here
provides UM coverage as a result of GEICO’s failure to make such coverage available
upon delivery, notwithstanding GEICO’s subsequent offer, would run counter to the
purpose of section 627.727(2) and establish a rule granting free UM coverage under an
umbrella policy to an insured after an insurer’s notification of available UM coverage to
the insured. The Court declines the invitation to reach this result.
When resolving all inferences against GEICO, the arguments raised and the
cases provided by Plaintiff do not defeat the argument that affording UM coverage
here would result in affording free UM coverage under an umbrella policy to an
insured after an insurer’s notification of available UM coverage to the insured. Plaintiff
reiterates that, under Ferreiro, the policy must be construed as providing UM coverage
as a result of GEICO’s failure to provide UM coverage to Plaintiff upon the initial
33

delivery of the policy to the Laphams at their Florida address. Doc. 43 at 5–6.
However, as already discussed, Ferreiro, and the line of cases cited therein, is
distinguishable. Plaintiff also reiterates that, under Adams, GEICO is not entitled to
cure its initial failure to comply with section 627.727(2) and affect a change in the
availability of UM coverage in the policy by including the UM Option Form in the
renewal packet. Id. at 12–13. The Court previously rejected this argument.
Additionally, Plaintiff appears to argue in passing that the renewal packet
provided insufficient notice. For example, she argues that the cover letter of the
renewal packet did not disclose the availability of UM coverage or “GEICO’s failure
to comply with § 627.727(2) by not making umbrella UM available as part of the
original policy application.” Id. at 7. She also claims that the “Important Messages”
endorsement page of the policy did not inform Plaintiff that “‘this policy does not have
UM coverage,’” but instead included “a cryptic statement that the policy ‘does not
include Uninsured or Uninsured Motorist Coverages unless endorsed above.’” Id. at
8. These arguments ignore the UM Option Form and are otherwise unpersuasive. 12
Therefore, based on the foregoing analysis and the distinctive facts of this case,
there is no genuine issue as to any material fact and GEICO, as the moving party, is
entitled to judgment as a matter of law.

Plaintiff’s provision of an application form “apparently in use” by GEICO “since 2006” to
argue that the form “does not contain the offer of UM coverage required by the statute” and
that “GEICO’s regular business practice ignores the plain requirements of section 627.727(2)
by failing to include and offer UM coverage in the policy application” is also unpersuasive.
Doc. 43 at 8.
12

34

IV.

CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED:
1. Defendant Government Employees Insurance Company’s Motion for Final
Summary Judgment (Doc. 39) is GRANTED.
2. Plaintiff’s Motion for Summary Judgment (Doc. 35) is DENIED.
3. The Clerk is directed to enter JUDGMENT in favor of Defendant
Government Employees Insurance Company and against Plaintiff Sheila
Lapham.
4. The Clerk is further directed to terminate all pending motions and close this
case.
DONE AND ORDERED in Tampa, Florida on March 31, 2021.

Copies to:
Counsel of Record and Unrepresented Parties, if any

35