Motion,Ex Parte: RICHARDS, TREVOR V CIVETTI, MATTHEW

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                                Filing # 106592551 E-Filed 04/22/2020 11:23:09 PM

IN THE CIRCUIT COURT OF THE
15th JUDICIAL CIRCUIT IN AND FOR

PALM BEACH COUNTY, FLORIDA.

CASE NO.: 50-2017-CA-012343-XXXX-MB
TREVOR RICHARDS

Plaintiff,
vs.

ACE AMERICAN INSURANCE COMPANY,

Defendant.
/

ELAINTIFNG’S MOTION FOR REHEARING AND RELICN FROM ORDER GRANTING
SUMMARY JUDGMENT

Plaintiff Trevor Richards (“Plaintiff”), per Local Rule 6, Fla. R. Civ. P. 1.530 and Fla. R.
Civ. P. 1.540, moves for rehearing and relief regarding this Court’s April 7, 2020 Order granting
Defendant Ace American Insnrance Comnanv’s (“ACE”) Motion for Summary Indoment,

The grounds for rehearing under Rule 1.530 are broad. Under rule 1.530, a party may
move for rehearing of final orders in order "to give the trial court an opportunity to consider
matters which it overlooked or failed to consider." Carollo v. Carollo, 920 So. 2d 16, 19 (Fla. 3d
2004). Under Rule 1.530, a rehearing is a second consideration of a cause for the sole purpose of
calling to the attention of the court any error, omission, or oversight that may have been committed
in the first consideration. Balmoral Condo. Ass‘n v. Grimaldi, 107 So. 3d 1149, 1151 (Fla. 3d DCA
2013). A motion for rehearing can include the contention that the final order conflicts with the
governing law and is otherwise simply wrong on the merits. Jd. Upon the timely filing of a petition
for rehearing, the court may reopen the case and reconsider any or all of the provisions of its final

decree. Id.

CHEN. DAIAARCACUAAIINTY Cl CHADAND ANAY FLED nAINIINNON 44.92-NO DAA
PILL. PAL BLAU VUUINE TT, FL, OHI. DUUN, ULLIAN, Uteeizucy 1 1.2u.u9 iviUnder Rule 1.540(b)(1), a party may seek relief due to "mistake, inadvertence, surprise, or
excusable neglect.” Under Rule 1.540(b)(4), a party may seek relief or a judgment or decree is
void.

Plaintiff relies on all of the above rules for rehearing and relief from the summary judgment
order on the grounds stated below. The Court respectfully committed harmful error, mistake,
issued a summary judgment order that conflicted with the governing law and was otherwise simply
wrong on the merits.

Further, Plaintiff was materially prejudiced, unfairly surprised and denied due process
regarding notice and opportunity to be heard, resulting in a void decree. Ace filed a Reply, case
law citations and affidavits in support of summary judgment three minutes before the summary
judgment hearing began. The Court relied upon Ace’s Reply and attached documents in granting
summary judgment in Ace’s favor.

A summary judgment based upon filings three minutes before the hearing is void because
it violates due process. A judgment is also void where it violates the due process guarantees of
notice and an opportunity to be heard. Bank of Am., N.A. v. Fogel, 192 So. 3d 573, 575 (Fla. 4th
DCA 2016) Cit a party's due process rights are violated, the underlying final order is void."); see
also Richard v. Bank of Am., N.A., 258 So. 3d 485, 488 (Fla. 4th DCA 2018); Hendrix v. Dep't
Stores Nat'l Bank, 177 So. 3d 288, 290 (Fla. 4th DCA 2015); Vercosa, 174 So. 3d at 552; Shiver
vy. Wharton, 9 So. 3d 687, 690 (Fla. 4th DCA 2009); Tannenbaum, 133 So. 3d at 1061; Viets v.
Am. Recruiters Enters., Inc., 922 So. 2d 1090, 1095 (Fla. 4th DCA 2006).

The summary judgment hearing on March 26, 2020 began at 10:00 a.m. and was conducted
remotely due to Covid-19 precautions. The parties’ counsel and court reporter all appeared via

falanhans Deeine bic initial aencantating Aan aanacal asionmneacanted ta tha Danet that Aan bad
LSISpNOLS. WUT WS Ilias presciauon, ACS § COUlSE: MiSiepresciicu w uls UOUIt ulal Ce naafiled its Reply with case authority and attached affidavits “last night.” [See attached Exhibit A at
*11]. In actuality, Ace electronically filed a Reply to Plaintiff’s response with attached affidavits
at 9:57 a.m. on March 26, 2020 -- three minutes before the hearing began.

Plaintiff's counsel was completely unaware of the Reply until Ace’s counsel mentioned it
when the hearing was well underway. [See attached Exhibit at *25]. Plaintiff's counsel notified
the Court that the Ace’s Reply and affidavits of Virginia Boyles and Ilana Hessing should not be
considered because they were untimely. [See attached Exhibit at *25]. Plaintiff also notified the
Court that the affiants would have been deposed if Ace had timely filed the documents as part of
its summary judgment motion. [/d.].

Clearly, Ace violated Fla. R. Civ. P. 1.510 and the Plaintiff was denied due process with
ambushed use of the affidavits by filing them three minutes before the summary judgment hearing.
The Court’s Order significantly relied upon Ace’s Reply and attached documents. The Boyles and
Hessing affidavits were signed in January 2019. Ace’s Motion for Summary Judgment was efiled
on December 3, 2019. Ace chose not to rely upon the affidavits or cited case law in its summary
judgment motion until filing them three minutes before the summary judgment hearing began.

By filing the affidavits three minutes prior to hearing and disclose the filing during the
hearing, Ace foreclosed Plaintiff's need and ability to oppose the Hessing and Boyles affidavits
by deposition. See Fla. R. Civ. P. 1.510(e)(“The court may permit affidavits to be supplemented
or opposed by depositions.”).

Granted, the Hessing and Boyles affidavits had been produced to Plaintiff as part of
discovery long before Ace filed its summary judgment motion. But the affidavits were not filed as
record evidence until three minutes before the summary judgment hearing began. If Ace decided

nea ne

be wales ene Hh Inacio afidawitn Dlaintifl had tha ainht ta dannna hath wiltenccnc tn
10 Te1y UPON UIE DOYIES ala WeSSINY aiUavils, riaiiuis aU ule Tiga Ww GepOs|e VOU WitieSSeS WOcontrovert their affidavits supporting summary judgment. Accordingly, Plaintiff objects to the
Hessing anad Boyles affidavits, seeks to depose both affiants and present the depositions in
opposition to Ace’s Motion.

Plaintiff again objects to the late filing of Ace’s Reply, case law authority and affidavits
filed three minutes before the summary judgment hearing. Cases have interpreted Rule 1.510(c) to
require that the movant file the motion and documents with the court at least twenty days before
the hearing on the motion. See Verizzo v. Bank of N.Y., 28 So. 3d 976, 977-78 (Fla. 2d DCA
2010)(summary judgment reversed due to late service and filing of the summary judgment
evidence nine days before hearing), citing Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800,
800 (Fla. 4th DCA 1989); Marlar v. Quincy State Bank, 463 So. 2d 1233, 1233 (Fla. 1st DCA
1985).

Ace’s Reply was an improper summary judgment motion filed much less than 20 days
before the hearing. It is further well settled that it is reversible error to grant a summary judgment
pursuant to a motion which has not been served within the 20-day notice required by rule
1.510(c). See Wizikowski v. Hillsborough County, 651 So. 2d 1223 (Fla. 2d DCA 1995); Norton v.
Gibson, 532 So. 2d 1325 (Fla. Ist DCA 1988); Brock v. G.D. Searle & Co., 530 So. 2d 428 (Fla.
1st DCA 1988); Parker v. Lower Florida Keys Hosp. Dist., 432 So. 2d 169 (Fla. 3d DCA 1983).

Ace did not raise the Plaintiff's standing issue or the filed affidavits in its summary
judgment motion or during its initial oral argument. Therefore, Plaintiff did not address standing
in his oral argument response, especially since Plaintiff objected to the timeliness of Ace’s written
Reply. In oral argument rebuttal, however, Ace raised Plaintiffs standing to address the
insufficiency of Ace’s annual notice of UM options even though Plaintiff had not addressed

standing in his response. [See Exnibit A at “44]. Tne Court would not allow Fiainuit s surreply iocite case law opposing the standing issue and in fact scolded Plaintiff's attempt to cite the Supreme
Court of Florida’s decision Travelers Ins. Co. V. Quirk, 583 So. 2d 1026, 1029 (Fla. 1991) that
Class II insureds like Plaintiff have standing to challenge a knowing rejection of UM coverage.
[See Exhibit A at *49]. Ultimately, the Court granted summary judgment finding that Plaintiff
lacked standing to raise an issue with ACE’s annual notice to named insured Chubb, citing Compass
Ins. Co. v. Woodard, 489 So. 2d 1157, 1158 (Fla. 4th DCA 1986), review denied, 500 So. 2d
546 (Fla. 1986) (a “Class II” insured, like Trevor, lacks standing to challenge the veracity of
“annual notice,” which is a mere “technical deficiency”). [See Order at 23].

This Court respectfully abused its discretion and committed harmful. reversible error by
granting summary judgment relying upon Ace’s untimely Reply and attached affidavits. Ace’s
Reply was an untimely summary judgment motion filed three minutes before the hearing in
violation of Rule 1.510.

Ace’s Reply was the first time Ace raised its argument regarding Plaintiff's lack of standing
for annual notice of UM Options. [See Ace’s Reply at { 6]. Plaintiff's standing was not raised in
Ace’s Motion for Summary Judgment or in its primary oral argument on March 26, 2020. As a
result, Plaintiff did not raise a standing argument in response, either in his written brief or in oral
argument.

This Court abused its discretion and committed harmful, reversible error by finding that
Plaintiff lacked standing as a Class II insured to challenge Ace’s annual notice of UM options to
Chubb and that Ace could reject UM coverage for Chubb.

Similar to the instant case, the Travelers plaintiff was a passenger in his employer’s vehicle
insured under a corporate policy when the insured vehicle collided with an uninsured vehicle. Id.

SL AAD NO Deere ant And Hine He Alot at et re Mee Ld Hine es tes Mn
al 1UZ/-20. 1iaVEIETS COMENGEG Ulal WIE GISUICL COUT Widlgiduy nea ulate WIE piditiuin, a U1assTI insured, had standing to raise the absence of a written rejection of UM coverage and wrongfully

decided that an independent insurance agent cannot act as broker for the insured when the agent is
licensed with the insurance company that issued the policy. Jd. at 1028. “The essence of Traveler's
argument is that the requirement of a written rejection is a mere technical requirement of section

627.727 that only the named insured has standing to raise.” Jd. at 1028. Travelers’ “technical”

argument is the same one presented by Ace through the Compass Insurance case cited in Ace’s
late Reply and adopted by the Court in its Order granting summary judgment. Compass Insurance

is a 1986 district court opinion and Travelers is a 1991 Supreme Court opinion.

In Travelers, the Supreme Court rejected the insurer’s “technical” argument, holding that
“a class II insured has standing to challenge the lack of a written rejection.” Jd. at 1028-1029.
The Supreme Court reasoned:

[A] challenge to the written-rejection requirement is part and parcel of the
challenge to a knowing rejection of UM coverage, and accordingly,
[plaintiff] Quirk has standing to raise the issue. The only rational
procedure by which a class II insured can challenge the existence of a
knowing rejection of UM coverage must necessarily begin with the
existence of an executed rejection form. Moreover, we agree with
Judge Altenbernd's reasoning in the case below:

First, the nature and extent of the 1982 and 1984 amendments make
it apparent that the legislature is attempting to avoid litigation over
a "knowing" rejection by placing far greater emphasis and
importance upon the written rejection as a self-proving document.
Second, the written rejection should make the insurance carrier's
task much easier. If the underwriting file contains a signed rejection,
a policy can be issued without UM. If the insured fails to sign and
submit a rejection form, ihe carner simply can refuse to issue a
policy without UM. Given the relative simplicity of this system, the
insurance carrier should not be encouraged by the courts to disregard
the written rejection as a technicality. Finally we would note that
this problem frequently arises with corporate insureds. Corporations
do not sustain bodily injuries and do not make UM claims. If their
corporate agents and employees do not have standing to contest the

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have standing.Travelers at 1028, affirming Quirk v. Anthony, 563 So.2d 710, 714 (Fla. 2d DCA 1990).

Ace was aware of the Supreme Court’s Traveler’s opinion approving a Class II insured’s
standing because page 7 of Ace’s Reply cited to Quirk v. Anthony, 563 So. 2d 710, 714 (Fla. 2d
DCA 1990), affd, 583 So. 2d 1026 (Fla. 1991).”(Emphasis added). The affirmed citation for
Quirk is the Supreme Court’s Travelers opinion approving a Class II insured’s standing.
Nonetheless, Ace did not disclose the Travelers holding to this Court despite the requirement that
all Florida lawyers are required to disclose even adverse case law to assist the Court in reaching a
just decision. See Rule Reg. Fla. Bar 4-3.3(1)(c).

The Supreme Court’s Travelers opinion also serves as authority that the Court abused its
discretion and committed harmful, reversible error that Ace’s employee Jake Canavan could make
a knowing rejection of UM coverage for named insured Chubb. In Travelers, Key Agency was a
licensed agent of Travelers but the Supreme Court held that “Key Agency could not reject UM
coverage on behalf of [named insured] West Coast as a matter of law.” Travelers at 1028-29.
(“Given the necessary relationship between an insurer and his "licensed," albeit not exclusive,
agent, as well as the great care taken in the legislative scheme to assure that an insured appreciates
the availability of UM coverage and makes a knowledgeable and deliberate decision to accept or
reject it, we agree with the Second District's opinion on this question [reversing summary
judgments in favor of Travelers and Key Agency]”).

The Court abused its discretion and committed harmful error by considering the evidence
in movant Ace’s favor in of Plaintiff's favor as required by law. The court must consider the
evidence contained in the record, including any supporting affidavits, in a light most favorable to

eeI Down Ted WENO. 94106 OQ.
MU DEUCH, Lid., /OU 90.20 120 (rla.2000). Moore v. Morris, 475 So.2d 666 (Fla. 1985). Thus, all doubts and inferences must be
resolved in favor of the non-moving party, and if the “slightest doubt” exists, then summary
judgment is not available. Sheikh v. Coregis Ind. Co., 943 So.2d 242 (Fla. 3d DCA 2006).

Without dispute, Plaintiff (a Class II insured) would have had UM coverage for the accident
sued upon but for the disputed issue of UM rejection. It is indistinguishable that the Compass
Insurance case involved an annual notice and the Travelers case involved the insurer’s failure to
obtain a knowing, written rejection of UM coverage. “The insurer shall notify the named insured
at least annually of her or his options as to the coverage required by this section.” Fla. Stat. §
627.727(1). Thus, an insufficient annual notice insufficiently notifies the named insured of the
information required to a knowing rejection of UM coverage for itself and, in commercial policies,
for Class II insureds. Thus, the “veracity of the annual notice” was an issue. Plaintiff had standing
to raise and summary judgment on this issue was an abuse of the Court’s discretion resulting in
harmful, reversible error. On this issue, the sufficiency of ACE’s notice to enable Chubb to make
a knowing rejection was a genuine issue of material fact precluding summary judgment.

The Court must follow Travelers’ precedent because it is a Florida Supreme Court case.
The rule of stare decisis dictates that a lower court should foliow the ruling of the Supreme Court
of Florida. State v. Dwyer, 332 So. 2d 333, 335 (Fla. 1976). None of the decisions cited by Ace on
the issue of Class II standing or an agent rejecting UM coverage for a named insured are Supreme
Court of Florida decisions. This Court relied upon Bessman v. Travelers Prop. Cas. Co. of Am.,
773 F. Supp. 2d 1270, 1272 (N.D. Fla. 2011) But Bessman is a federal court case which is not
binding on this state Court. See Dwyer at 335 ("A decision of a Federal District Court,
while persuasive if well reasoned, is not by any means binding on the courts of the state."). Thiis

Oasret in eavnd tr fallaees Peressgl oun
COUT IS VOUTIG LO 1OUOW 1 FGVELETS.The Court abused its discretion and committed harmful, prejudicial error by also
disregarding controlling precedent of the Fourth District Court of Appeal that the named insured
must eyeball the UM options itself. “So that the insured need expend only minimal effort at
becoming fully informed, the statute [§ 627.727] 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.” Jervis v. Castaneda, 243 So. 3d 996, 999 (Fla. 4th DCA
2018)(Reversing judgment in insurer’s favor because insurer failed to comply with the written
notice provisions of Fla. Stat. § 627.727(1) & (9))(Emphasis added). “[I]f the district court of the
district in which the trial court is located has decided the issue, the trial court is bound to follow
it.” State v. Hayes, 333 So. 2d 51, 53 (Fla. 4th DCA 1976).

Even if an agent has the authority to bind the named insured, no precedent was presented
that established that excused the named insured from eyeballing the UM options itself prior to
authorizing its agent reject UM options. In this case, Ace presented zero record evidence that
named insured Chubb was presented with or eyeballed any UM options to make a knowing,
informed rejection authorization to Canavan. Whether Chubb actually saw any UM options is a
genuine issue of material fact and was not established by Hessing/Boyies affidavits or Canavan’s
testimony.

Further, another genuine issue of material fact precluding summary judgment existed
regarding Ace’s annual notice. It is undisputed that the annual notice approved for use by Florida’s
Office of Insurance Regulation was for newly issued policies and the policy for which Ace’s
Canavan signed the UM rejection as a renewal policy. Therefore, a genuine issue of material fact

exists whether the UM rejection form signed by Canavan was approved for a renewal policy andsufficiently noticed the named insured of its UM options for policy renewal for insureds under FI.
Stat. § 627.727(9), including Class II insureds.

Additionally, this Court abused its discretion and committed harmful reversible error in
ignoring the plain language of Fla. Stat. § 627.727 that a named insured must make a knowing
rejection of UM coverage.

Finally, this Court abused its discretion and committed harmful, reversible error when
it granted summary judgment on the medical payments issue. The Court ignored record
evidence in Plaintiff's Notice of Reliance that Ace’s claims representative admitted the policy
furnished Plaintiff with medical payments coverage, creating a genuine issue of material fact
that precluded summary judgment.

WHEREFORE, Plaintiff respectfully requests an Order granting him rehearing and relief
on Ace’s Motion for Summary Judgment and that the summary judgment motion should be denied.

I] HEREBY CERTIFY that the foregoing was served via electronic service on this 22nd
day of April, 2020 to: Aaron Warren, Esq./Sina Bahadoran, Esq., aaron.warren@clydeco.us,

sina.bahadoran@clydeco.us, 1221 Brickell Avenue, Suite 1600, Miami, FL. 33131.

HENRY A. SEIDEN, ESQ. (FBN 436763)
SEIDEN LAW

Attorneys for Plaintiff

6274 Linton Blvd., Suite 103

Delray Beach, FL 33484

Phone: (561) 833-8988

Email primary: service@seidenlawfirm.com

By_/s/ Henry A. Seiden
HENRY A. SEIDEN, ESQ.

1010

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IN THE CIRCUIT COURT OF THE
15TH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA

CASE NO. 50 2017 CA 012343 XXXX MB

TREVOR RICHARDS,
NOVLAT RICHARDS,

Plaintiffs/Petitioners,
vs.
MATTHEW CIVETTI,
DAVID ROBINSON,

ACE AMERICAN INSURANCE COMPANY,

Defendants/Respondents.

 

March 26, 2020
L

10 a.m. - 11:10 a.m.

TELEPHONIC HEARING

The above-entitled cause came on for
telephonic hearing before The Honorable Howard
Coates, Circuit Judge, pursuant to Notice.

EXHIBIT A

 

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305-376-8800es

 

APPEARANCES:

SEIDEN LAW, P.A.

BY: HENRY A. SEIDEN, ESQ.
6274 Linton Blvd., Suite 103
Delray Beach, FL 33404
(561) 833-8988
haseidenpa@aol.com

2A
3404

Attorneys for the Plaintiffs/Petitioners

CLYDE & CO. US, LLP

BY: AARON L. WARREN, ESQ.

1221 Brickell Avenue, Suite 1600

Miami, FL 33131

(305) 446-2646

awarren@clydeco.us

Attorneys for the Defendants/Respondents

 

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THE COURT: All right, good morning. This
is Judge Coates. We're here for a 10 o'clock
special hearing in Richards vs. Civetti.

Counsel, your appearances, please?

MR. SEIDEN: Henry Seiden on behalf of the
plaintiff, Your Honor. Good morning.

THE COURT: Good morning.

MR. WARREN: Good morning, Your Honor.
Aaron Warren with Ace.

THE COURT: Good morning.

THE COURT REPORTER: And good morning,
Judge. This is Alice, the court reporter.

THE COURT: Okay. We took care of all
appearances. So we're here for Ace American
Insurance Company's motion for final summary
judgment. I have one hour set aside for this
hearing. So we'll allocate time equally, one
half hour per side.

Mr. Warren, you ready to proceed?

MR. WARREN: I am, Your Honor.

THE COURT: You may do so.

MR. WARREN: Thank you, Your Honor.

So I'll just start from the top. If Your

Honor has any questions, feel free obviously to

interrupt me at any time.

 

 

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But as you said, we're here on Ace's motion
for summary judgment. Ace is asking this Court
to enter a judgment in its favor as a matter of
law because the uncontroverted evidence adduced
and established today establishes that there is a
signed, uninsured motorist rejection form and
therefore, a conclusive presumption of a knowing
rejection of that coverage.

The law in Florida is crystal clear, black
and white. Frankly, we feel that this case
should have never been filed, because the
evidence is so clear and it satisfies everything
that the legislature requires in this situation.
But nonetheless we've, you know, marshaled this
evidence and produced it for the Court and that
addresses, obviously, the claim for uninsured
motorist.

In addition to that, we're moving for
summary judgment on the second claim regarding
medical payments coverage, because the facts just
clearly establish there's no coverage whatsoever
under the plain terms of the policy.

So taking a step back, the facts of this

case are extremely straightforward with regard to

the uninsured motorist rejection.

 

 

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In October 2016, Ace issued a commercial
auto policy to Chubb Group Holdings, Inc. as the
named insured. Chubb authorized Jake Canavan to
administer its entire corporate insurance
program, including this policy and other
corporate insured policies. He testified that he
was responsible for procuring policies,
monitoring coverage, making sure Chubb was
up-to-date with trends, and he was specifically
responsible for rejecting uninsured motorist
coverage in every single state. You know, this
is a 50-state national insurance policy.

He executed this form across 250 pages, you
know, which was produced to the other side, as
far as the underwriting goes on the policy. This
wasn't a one-off signature or anything like that.

So Ace provided the Court with an
authenticated copy of Chubb's uninsured motorist
rejection form in Florida. It's Exhibit B to
Ace's motion, and I'm not sure if the Court had
an opportunity to look at that or not, but I have
it in front of me and I'll just kind of go
through some of the features of it and why it

complies specifically with Florida law.

So the form itself is governed by Florida

 

 

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Statute 627.727, subsection one. It's undisputed
that the form meets every single requirement
required by the statute, okay. It advises the
applicant of the nature of uninsured motorist
coverage. It states that bodily injury limits
are equal to uninsured motorist limits unless
rejected or lower limits are selected.

It contains the required statutory warning
verbatim in bold 12-point font, and the form was
approved by the Florida Office of Insurance
Regulation, which was established by Sandra
Starnes' affidavit that's attached to Ace's
motion.

So further, in addition to that, the form is
signed -- and this is conceded by the other
side -- the form is signed by a representative of
Chubb and the form identifies Chubb as the named
insured.

So that's all the Florida law requires, a
signed form that's approved by the OIR, the
Office of Insurance Regulation, and otherwise
meets every other single statutory requirement.

Since Ace's form meets every requirement of

627.727, subsection one and it is signed by an

authorized representative of the named insured,

 

 

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the statute creates a "conclusive presumption of
an ‘informed knowing rejection of uninsured
motorist coverage on behalf of all insureds.'"

I'll digress just for one quick second to
notify the Court that the amendment came about in
1984 to create this written rejection requirement
specifically to avoid situations like this, where
insurers were having to face a litany of trials
over a knowing rejection. The statute did not
require a writing requirement and rejections
could be done verbally. So the legislature
created this written requirement. If you produce
the signed rejection, it creates a conclusive
presumption there is an informed knowing consent
or waiver of coverage.

So it's really as straightforward as that as
it goes to the uninsured motorist claim.

Now, the conclusive presumption, once it's
established, as it's established here, can only
be defeated by evidence of fraud, forgery or
trickery, and this is the insured's burden. The
burden shifts once the signed form is produced
and established.

Here, Your Honor, there is no evidence

whatsoever of fraud, forgery or trickery that's

 

 

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been proffered by Trevor Richards, the plaintiff,
nor could there ever be any evidence here, and
I'll explain why.

If you look at the fraud, forgery or
trickery from the perspective of the insurer Ace
with respect to its insured, Chubb, here there's
no fraud because Mr. Canavan, who signed the
form, testified that he knowingly signed the form
and that he did so enthusiastically. Ace could
never have fraudulently duped Canavan into
signing a form that he intentionally wanted to
sign, that he knew what he was signing, that he
made a voluntary decision to sign.

Number two, there's no forgery because
Mr. Canavan testified that he deliberately signed
the form in his own name. And again, Trevor
concedes that in his opposition papers, that
Mr. Canavan signed the form, and he clearly
establishes that. "That's my signature. Yes, I
signed the form." There can be no forgery.

Number three, there's no quote-unquote
"trickery", because again, Mr. Canavan knew
exactly what he was doing. He made this decision

in his capacity as the risk manager for Chubb. I

mean, he does this every single day of his life,

 

 

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where he's reviewing insurance coverages and
insurance forms, and he voluntarily made the
decision to reject uninsured motorist coverage in
Florida and it was part of a global project for
Chubb, where they rejected uninsured motorist in
every state where it was not statutorily
required, absolutely required, where you could
essentially effectuate no rejection whatsoever.

So there's no evidence of fraud, forgery or
trickery, nor can there ever be any evidence of
fraud, forgery or trickery on these facts, and
Ace is otherwise entitled to the conclusive
presumption of a knowing rejection and it is
entitled to summary judgment on Trevor's claim
for uninsured motorist.

I want to take this moment to address a
couple of the points in the opposition, just
because they -- I mean, I feel it's necessary to
address it now, because they seem to be -- there
are themes in Trevor's pleading and they're just
totally unsubstantiated. So it's worth taking
those up now.

The first point that Trevor makes or his

first theme is that Mr. Canavan did not have

quote-unquote "authority" to act on behalf of

 

 

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Chubb. Okay, this is just flatly wrong for
several reasons.

First, it ignores the overwhelming testimony
of Mr. Canavan that he had Chubb's express
authority to reject uninsured motorist coverage
for Chubb. He testified -- I think I cited six
different portions of his testimony where
Mr. Canavan testified that he's acting under the
express authority of Chubb to reject uninsured
motorist coverage. He did it in Florida, he did
it in 25 other states, for a total of 26 states
in this corporate policy. He clearly has
authority, and Trevor's assertion amounts to what
the law calls "a mere allegation of no
knowledge," which is insufficient as a matter of
law.

Second, Mr. Canavan was clearly authorized
to purchase insurance coverage so he could
purchase the whole policy, and Trevor doesn't
take issue with that. So he obviously had the
reciprocal authority to reject coverage. I mean,
otherwise, if we were to accept Trevor's
argument, then we should just go ahead and say

there's no policy at all.

Of course, Trevor is not arguing that. He

 

 

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wants there to be a policy, but he wants to
create this dichotomy that Trevor had authority
for one thing, but not another. It's completely,
you know, bogus to make that distinction and the
law does not makes that distinction.

Third, Your Honor, Chubb and Ace, the
insured and the insurer, they've never disputed
Trevor's authority. So when Trevor -- excuse me,
Mr. Canavan's authority. So when Mr. Canavan
signed the UIM rejection in November of 2016 --
sorry, October of 2016 -- Chubb never took issue
with that authority as the insured. Ace never
took issue with that authority as the insurer.
Ace relied on that authority and issued the
policy and it went that way obviously for six
months. It still goes that way today, obviously,
and this only became an issue when Trevor was
unfortunately injured in his traffic accident and
now has raised this theory.

So in addition to the authority argument,
Your Honor, last night we submitted a reply brief
to Trevor's response, attaching the affidavit
which was produced to Trevor months and months

ago of Chubb's corporate vice president and

secretary, who unequivocally substantiates

 

 

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Mr. Canavan's authority.

We submit that's unnecessary, that it's not
necessary to present testimony from Chubb itself,
because Mr. Canavan has testified based on his
personal knowledge of that authority, and also in
Florida the risk of loss in this situation would
have fallen on Chubb as the insured for an error
in its agent's improper authority, and the law is
clear on that.

So even if Mr. Canavan was somehow
unexpected -- or mistaken regarding his
authority, the penalty doesn't fall on Ace having
the signed rejection form. It falls on the
insured for any mistake by its agent. So that
testimony is not even necessary, but we brought
it in anyway, and it shores up any lingering
doubt on Mr. Canavan's authority.

Finally, Your Honor, on the authority point,
I would just point out that Trevor has failed to
produce any competent evidence to substantiate or
support his argument regarding authority. There
is absolutely no genuine issue of material fact
on authority. It's a total red herring. The

signed rejection form was done by Chubb's

corporate representative, it was signed by its

 

 

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corporate representative, and it's valid and
enforceable.

One other point on this is that the theme in
Trevor's pleadings and his response is that Chubb
was never quote-unquote "informed". This is
wrong for several reasons again.

First, it ignores the statutory conclusive
presumption of an informed knowing consent. To
have the statute require a writing that creates a
conclusive presumption to then only say that the
conclusive -- to then only say the insured
wasn't actually informed stands the statute and
the writing requirement on its head.

In addition to that, Trevor's argument is
derived from subsection nine of Statute 627.727,
which isn't applicable here. Subsection nine
does create what I would call a direct
requirement for the insured to "inform the
insured" of what our limitations on uninsured
motorist stacking are, which is where you add
limits for multiple policies together, and
subsection nine also applies to uninsured
motorist coverage policy exclusions.

We're not dealing with an exclusion or

stacking here. We're dealing with an outright

 

 

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rejection, which falls under subsection one.
Subsection one does not contain that sort of
direct informed language. Rather, informing the
insured is a passive requirement under subsection
one, and subsection one states that you must
produce this information in a form approved by
the statute and if that form is signed by the
named insured, it creates a conclusive
presumption of an informed knowing rejection on
behalf of all insureds when it's done by the
named insured, but it has no separate direct
inform requirement.

Then I would add to the informed position
that Trevor takes -- I mean, a corporate entity
never acts. They only act through their agents,
right? Corporations don't act on their own other
than through an agent.

Florida law is crystal clear that corporate
insureds can appoint representatives to reject or
select lower limits or in this case reject
uninsured motorist coverage entirely, and that
decision by the agent binds the named insured and
creates, you know, knowledge or inform to the

insured.

So to say that Chubb must have done -- or

 

 

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must have rejected it and could not have used a
corporate representative flouts Florida law on
this issue and would just be an entire -- it
would undermine all the case law on the issue and
it wouldn't comport with Florida law on that
point.

The third, the next big, big topic on this
uninsured motorist -- and Your Honor, I just want
to point out, I mean, I'm devoting most of my
time to the uninsured motorist issue because
that's obviously the main issue here. The
medical payments coverage is pretty
straightforward, but I will get to that at the
end.

But the third, the third big argument that
Trevor makes is the new argument regarding annual
notice. This is a red herring. Ace did provide
annual notice. Ace notified, provided proof of
annual notice to Trevor. I believe back in
January of 2019, through the affidavit of
Virginia Boyles, we provided that authority to
the Court. There's no genuine issue of fact that
they did not provide annual notice.

Even if for some reason thev did not provide

the annual notice and we didn't produce an

 

 

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affidavit of Ace's annual notice, here the
undisputed facts and record evidence nonetheless
establishes that Ace actually obtained a
completely new uninsured motorist rejection form.

When an insurer fails to produce annual
notice -- the reason for the notice is to notify
the insured of their uninsured motorist
obligations, right, and the law says that you do
not have to actually obtain a new rejection if
you simply provide this form-approved notice,
which here Ace went above and beyond the mere
notice requirement and actually obtained a new
uninsured motorist rejection form. That form
states all of the options and the requirements
for the UM coverage under Florida law.
Essentially, it exceeds the statutory notice
requirement.

So even if Ace had not sent Chubb the annual
notice, you know, the mere notice under Florida
law, they nonetheless sent them a new UIM
rejection form on top of the annual notice and
they exceeded any notice requirements that they
had under 627.727.

Then lastly, Your Honor, the last point that

Trevor makes which I think is the theme or a big

 

 

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point in the briefing is that Mr. Canavan was an
agent of Ace and not an agent of Chubb. This is
flatly wrong. It's mere speculation. It's also
directly refuted by Mr. Canavan's testimony.

Mr. Canavan was unequivocal when he was
asked this question several times and he
specifically denied that he was ever acting as an
agent for Ace. He was always acting as an agent
for Chubb, the named insured.

Your Honor, another thing to point out, I'm
not sure if the Court has had an opportunity to
go through Mr. Canavan's deposition, but this
wasn't, you know, some fly-by-night or some, you
know, quick, unsubstantiated insurance
arrangement. Chubb actually went through a third
party broker, Lockton, to procure this policy.

In part and parcel of that, Mr. Canavan was
representing Chubb in that transaction. You
know, purchasing the policy through a third party
broker, which Ace ultimately issued. At all
times he was acting as an agent of Chubb, never
an agent of Ace.

You know, there's various reasons. Even

though Ace is an indirect subsidiary of Chubb --

I mean, Chubb is one of the world's largest

 

 

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insurance companies. But even though they're an
indirect subsidiary, they nonetheless went
through a third party broker. I assume it
transfers, you know, some sort of loss to the
broker or -- you know, there's various other
reasons why, but it wasn't like they even
purchased the policy from its indirect subsidiary
without an intermediary.

Nonetheless, Mr. Canavan at all times was an
agent of Chubb. This is directly supported by
his testimony. There's no issue of fact on this
and for Trevor to even argue that is borderline
bad faith, because the evidence so clearly
establishes it.

THE COURT: You want to reserve some time
for rebuttal?

MR. WARREN: Sorry. Yes, Your Honor, I feel
like I've been speaking so long.

I just want to add that Mr. Canavan, you
know, he repeatedly testified regarding his
authority to reject coverage on behalf of Chubb.
To say he was an agent of Ace ignores pages and
pages of his deposition testimony that he was
working only on behalf of Chubb.

Trevor raises no evidence of this

 

 

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quote-unquote "agency argument". It would be his
burden to do so and he's not established -- he's
identified no evidence at all.

Then finally, Your Honor, there's nothing
nefarious about a corporate insured appointing a
subsidiary as its risk manager. I mean, it
happens all the time. If Allstate wanted to go
buy a policy to insure Allstate, Allstate would
have purchased a policy -- you know, they're an
insurance company. This is what they do. Why
would they buy a policy from anyone other than,
you know, an indirect subsidiary of their own?
They may, they very well may, but there's nothing
nefarious at all about this arrangement and
Trevor sort of seems to suggest that it is or it
isn't, but never really identifies anything to
that point.

But regardless, the law is clear that a
corporate insured can appoint a subsidiary or
anyone else to work as its risk manager.

So anyway, Your Honor, for all of those
reasons, there's no issue of fact here. This
case is straightforward, black and white. We've

produced the signed UIM form. Mr. Canavan signed

it with clear authority for Chubb. It creates a

 

 

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conclusive presumption and there's no way
whatsoever that Trevor can produce any facts to
overcome the presumption, and Ace is entitled to
summary judgment on the UIM.

Last, the second claim is med pay, medical
payments coverage. To me, this is almost a
throw-away, Your Honor, just because the policy
is so clear.

The policy only covers medical payments if
an injury occurred in a quote "covered auto." A
covered auto is one that's owned by Chubb. Here
Trevor admits that he was injured in an auto
owned by his coworker, Alvaro Planchart, and
accordingly, it's not a covered auto and doesn't
trigger med pay coverage at all, and Trevor
concedes that point.

So I guess with that, I'll virtually sit
down, unless Your Honor has any other questions.

THE COURT: I do not.

Mr. Seiden, you may proceed.

MR. SEIDEN: Thank you, Your Honor.

The Jervis vs. Castaneda case, which is a
Fourth DCA case decided in 2018, we think is very

important for the Court's determination of this

case, because it is actually the controlling and

 

 

 

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binding authority that this Court must follow
with respect to interpretation of the UM statute,
Florida Statute 627.727.

Looking at it -- we gave the Court a copy of
it. Looking on page three, we quote the Fourth
DCA saying Section 627: "The legislature made
plain its desire that insureds make informed and

"

knowing --

THE COURT: Mr. Seiden, you just cut out.

THE PHONE OPERATOR: Sorry for the
interruption, Your Honor. It appears his line
has dropped and he's dialing back in. I'll
connect him as quickly as possible.

THE COURT: Okay.

THE PHONE OPERATOR: Mr. Seiden's line is
live.

THE COURT: Mr. Seiden, you cut out. So you
may continue.

MR. SEIDEN: Okay, thank you.

So I was saying that in Jervis the Court,
the Fourth DCA said: "The legislature made plain
its desire that insureds make informed and
knowing decisions about the UM coverage," citing

both Florida Statute 627.727, subsection one

and -- and I'll explain later -- accordingly,

 

 

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subsection nine.

I'm going to quote from the Jervis opinion
here. This is really so important. "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."

Now, what is completely clear from all the
evidence in this case -- and this is
undisputed -- is that the UM options before a
rejection was signed was never placed before the
eyes of the named insured, which is Chubb, and it
is impossible for Chubb to have made an informed
decision without being informed. This is
something that is a clear, plain reading of the
statute. Statutory construction says that it
must be done by the named insured. There is no
statutory language that says a named insured can
delegate this very important responsibility to
anyone else.

Now, the reason for that is very clear,
because when a named insured considers the UM
options, the named insured is not considering the

options merely for itself. The named insured is

considering the options for itself and the other

 

 

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individuals or corporations who will be insured
under the same policy. So a great deal of
responsibility is placed on the named insured to
be informed about all those options before making
a decision whether to accept or to reject.

The legislature doesn't allow a bodily
injury policy to be issued in the State of
Florida unless UM accompanies it. In other
words, UM comes with PI automatically under
subsection one unless it is rejected or the
limits were lowered after the options had been
reviewed by the named insured and then the named
insured makes a knowing and informed decision.

In this case that opportunity did not occur
here for my client, Mr. Richards, who was reliant
upon Chubb to perform this statutory
responsibility that the legislature placed on
Chubb as a named insured.

The idea and the concept that it can be
placed on someone else is not allowed by statute,
and I'll cite for a moment to the Bessman case,
which was cited by Ace in support of its motion
for summary judgment. The Bessman case, by the

way, which we cited in our response is not

binding on this Court. It's only if it's well

 

 

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reasoned could it be considered by the Court

at all and actually, under the law, as the Court
well knows, since this Court is under the
auspices of the district, the Fourth DCA, the
Jervis decision is the controlling binding
decision in this case.

But Bessman is important for the following
reason. Bessman is a federal case. Originally
the earlier opinion -- and we cited it as
described in the opinion cited by Ace in this
case -- summary judgment was denied because there
was no evidence put forth by the actual named
insured in that case that it had actually
reviewed the options and rejected UM coverage.
It was done additionally by a gentleman by the
name of Geissinger for the insurance agency --
and these companies are all interrelated -- and
then the Court denied summary judgment because
there was no evidence from the actual named
insured that it had somehow ratified or approved
or even reviewed the UM options.

It was only after the actual named insured,
Mr. Vaughn, signed an affidavit was a sufficient

link established in the mind of the Northern

District Federal Court that summary judgment

 

 

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would be allowed and therefore, there were all
genuine facts, material facts, that were
satisfied. Everything was so crystal clear that
there could be conclusions of law.

That doesn't occur here at all because we
don't hear from Chubb, the named insured.

Now, Mr. Warren has said that there was some
reply sent last night. I was stunned when I
heard that and I see you saying it. I just
looked online. The reply that they had given was
sent at 9:57 a.m. this morning, three minutes
before this hearing began, and the affidavits
that are attached do not satisfy any of the
requirements still.

I will submit to the Court that you cannot
even consider this, because obviously it's not
timely. Obviously we had a chance to depose the
individuals who made these affidavits and when
you look at the affidavits, they were done a long
time ago. I think over a year ago.

So if Ace had wanted to include that in its
summary judgment, it should have been given and
filed as part of the summary judgment motion, and

then we would have had an opportunity to go ahead

and depose the individuals who did the

 

 

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affidavits, as we deposed Mr. Canavan.

When we took Mr. Canavan's deposition, we
established that his affidavit that was allegedly
based on personal knowledge, there was no
personal knowledge at all. He didn't have
personal knowledge of any of these things. The
only thing that Mr. Canavan knew is that he had
been in a meeting -- he had taken the job in June
of 2016 as a financial analyst for Ace. He is
not a Chubb employee, he is an Ace employee, and
the evidence shows that these are all separate
legal entities, according to Mr. Canavan's own
testimony.

About a few months later he sat in the
office of his boss, Mr. Baumberger.

Mr. Baumberger directed Mr. Canavan to reject UM
coverage per Chubb.

Now, the fact that Mr. Canavan received this
information from Mr. Baumberger -- there's no
affidavit or evidence from Mr. Baumberger.

That's hearsay. The fact that there was an
alleged authorization by Chubb for all this to be
done, that is hearsay and as we cited in our

response, hearsay cannot be the conduit for

summary judgment. Hearsay is inadmissible, and

 

 

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in our response we in fact objected to the use of
hearsay in support of Ace's motion for summary
judgment.

The issue as to whether Chubb can be
informed about the UM options were solely reliant
upon what Mr. Canavan knew and Mr. Canavan was
very, very clear that he was completely
unfamiliar with Florida UM law, and he said that
repeatedly.

Now, it's axiomatic that somebody who was