BESSMAN v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA

Filing 41

ORDER GRANTING 25 Motion for Summary Judgment. The Clerk of Court is directed to enter final summary judgment in favor of Travelers, consistent with this order, and tax costs against the plaintiffs. Signed by District Judge M CASEY RODGERS on March 29, 2011. (kvg)

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-CJK BESSMAN v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA Doc. 41 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION PAUL M. BESSMAN and CINDY BESSMAN, husband and wife, Plaintiffs, v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Defendants. _______________________________/ ORDER The plaintiffs, Paul and Cindy Bessman, filed this lawsuit against the defendant, Travelers Property Casualty Company of America ("Travelers"), after Travelers denied Paul Bessman's claim for uninsured/underinsured motorist ("UM/UIM") benefits.1 At the Case No.: 3:09cv123/MCR/CJK conclusion of discovery, Travelers filed a motion for summary judgment (doc. 25), arguing that there were no genuine issues of material fact because the undisputed evidence showed that its insured, Hope Lumber, rejected UM/UIM coverage pursuant to Fla. Stat. 627.727.2 In response to Travelers' motion, the plaintiffs argued that Travelers failed to 1 Bessm an was involved in an autom obile accident with an uninsured/underinsured m otorist while operating a m otor vehicle in the course of his em ploym ent with Hope Lum ber & Supply Com pany ("Hope Lum ber"). Bessm an m ade a claim against a com m ercial autom obile liability policy issued to Hope Lum ber by Travelers. In response to Bessm an's request that it disclose any coverage available to him under the policy, including UM/UIM coverage, Travelers inform ed Bessm an on Septem ber 11, 2007, that $1,000,000 in coverage was available under the policy. On Septem ber 24, 2008, however, Travelers notified Bessm an that no UM/UIM coverage was available because Hope Lum ber had rejected such coverage in Florida. Bessm an thus filed suit against Travelers. Florida Statute 627.727 requires that any autom obile liability insurance policy issued in Florida covering bodily injury also provide UM/UIM coverage. Long v. Prudential Prop. and Cas. Ins., 707 So. 2d 390, 391 (Fla. 5th DCA 1998). The statute further provides, however, that a nam ed insured m ay reject such coverage by signing a UM/UIM selection form . See id. Travelers produced a UM/UIM selection form showing that Hope Lum ber rejected UM/UIM coverage. The form identified Hope Lum ber as the nam ed insured; m et the content and form at requirem ents for a UM/UIM selection form specified in 627.727; and included a checked box stating: "I hereby reject Uninsured Motorist Coverage." (Doc. 26-1). 2 Dockets.Justia.com Page 2 of 3 demonstrate that Jim Geisinger, the individual who signed the UM/UIM selection form on behalf of Hope Lumber, had the authority to do so (doc. 29).3 The plaintiffs further argued that Travelers acted fraudulently in failing to provide them with a copy of Hope Lumber's rejection form sooner, suggesting that no such form, in fact, existed at the time Bessman made his claim.4 The court denied Travelers' motion because Travelers failed to present any evidence that Geisinger had authority to act on Hope Lumber's behalf when he signed the UM/UIM selection form. Shortly thereafter, Travelers filed a motion to reopen the summary judgment deadline (doc. 33) and a motion for reconsideration and relief from judgment (doc. 34), requesting that the court consider affidavits from Geisinger and Paul Vaughn, Hope Lumber's Chief Financial Officer ("CFO"), regarding Geisinger's authority to act on behalf of Hope Lumber in signing the UM/UIM selection form. Travelers' motions were based on the fact that the plaintiffs never questioned Geisinger's authority, much less raised it as an issue in the case, before responding to Travelers' motion for summary judgment. Because the plaintiffs had not raised the issue, the court granted Travelers' motion to reopen the summary judgment deadline for the limited purpose of allowing Travelers to submit the affidavits (doc. 36).5 The affidavits establish that Geisinger, in fact, had authority to act on Hope Lumber's behalf when he signed the UM/UIM selection form. According to Geisinger's affidavit, he was the President of Rooney Insurance Agency ("Rooney Insurance") at the time he signed the form. Both Rooney Insurance and Hope Lumber were owned and operated by Rooney Holdings, Inc. ("Rooney Holdings"), which appointed Rooney Insurance to act as the risk manager/agent for all Rooney Holding companies, including Hope Lumber. As the risk manager/agent, Rooney Insurance was responsible for In an undated affidavit attached to Travelers' letter inform ing the plaintiffs that Hope Lum ber had rejected UM/UIM coverage, Geisinger stated that he currently was the agent of Hope Lum ber and had served as its risk m anager. 4 3 The plaintiffs did not plead fraud in their com plaint. Because the m otions were filed for the sam e purpose, the court denied Travelers' m otion for reconsideration and relief from judgm ent as m oot. Case No: 3:09cv123/MCR/CJK 5 Page 3 of 3 procuring insurance coverage on behalf of Hope Lumber and rejecting UM/UIM coverage in every state in which it was permitted to do so. Geisinger stated that, when he executed the UM/UIM selection form at issue in this case, he was acting with Vaughn's express authority. Vaughn confirmed that fact in his Declaration. According to Vaughn, as Hope Lumber's CFO, he was responsible for coordinating insurance coverage with Geisinger. Vaughn further stated that it was Hope Lumber's policy to reject UM/UIM coverage wherever permissible and that Hope Lumber relied upon Geisinger to do so. Finally, Vaughn stated that he personally authorized Geisinger to execute the UM/UIM selection form at issue in this case, rejecting UM/UIM coverage on Hope Lumber's behalf. Because Geisinger plainly had authority to act on Hope Lumber's behalf in signing the UM/UIM selection form, a presumption arises that Hope Lumber made an informed, knowing rejection of UM/UIM coverage. See Johnson v. Stanley White Ins., 684 So. 2d 248, 250 (Fla. 2d DCA 1998). That presumption may be rebutted if the rejection was procured by fraud, forgery, or trickery. See id. The plaintiffs, however, did not plead fraud in their complaint, much less with the requisite particularity. See Fed. R. Civ. P. 9(b). Even if they had, they have adduced no evidence to substantiate their allegation in that regard. As a result, the court finds that there is no genuine issue of material fact and that Travelers is entitled to summary judgment as a matter of law. See Jackson v. State Farm and Cas. Co., 469 So. 2d 191, 193 (Fla. 2d DCA 1985) (affirming summary judgment for the insurer where the insurer produced a signed UM/UIM selection form and the plaintiff alleged, but presented no evidence to show, that the rejection was not knowing). Accordingly, it is hereby ORDERED that Travelers' motion for summary judgment (doc. 25) is GRANTED. The Clerk of Court is directed to enter final summary judgment in favor of Travelers, consistent with this order, and tax costs against the plaintiffs. DONE AND ORDERED this 29th day of March, 2011. s/ M. Casey Rodgers M. CASEY RODGERS UNITED STATES DISTRICT JUDGE Case No: 3:09cv123/MCR/CJK

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