              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



EDDIE GALLON,                                 )
                                              )
             Appellant,                       )
                                              )
v.                                            )       Case No. 2D13-2853
                                              )
GEICO GENERAL INSURANCE                       )
COMPANY; and JOHN OR JANE DOE,                )
Agent Individually,                           )
                                              )
             Appellees.                       )
                                              )

Opinion filed September 12, 2014.

Appeal from the Circuit Court for Polk
County; Steven L. Selph, Judge.

Sanga Turnbull of Smith & Stallworth, P.A.,
Lakeland, for Appellant.

Jennings L. Hurt III and Meredith M.
Stephens of Rissman, Barrett, Hurt,
Donahue & McLane, P.A., Orlando, for
Appellees.



VILLANTI, Judge.


             Eddie Gallon seeks review of the order that dismissed his fourth amended

multi-count complaint against GEICO General Insurance Company with prejudice. We

affirm the dismissal of Gallon's counts for promissory estoppel and negligent
procurement without further comment. However, we reverse the dismissal of Gallon's

count for negligent misrepresentation and remand for further proceedings.

              Gallon was the back seat passenger in his mother's car when she was

involved in a single-car accident. Gallon was ejected from the vehicle and severely

injured. Gallon's mother, Natalie Gallon, carried automobile insurance on the car with

GEICO, including uninsured motorist (UM) coverage, and Gallon made a claim for UM

benefits. However, a dispute arose as to the amount of UM benefits available to Gallon.

GEICO contended that Gallon was limited to $50,000 in UM benefits, even though there

were two vehicles on the policy and the policy indicated that UM coverage was

"stacked," because Mrs. Gallon had purchased UM coverage on only one vehicle.

Gallon contended that because the policy provided stacked UM coverage and because

there were two vehicles covered by the policy, he should be entitled to $100,000 in UM

benefits. When GEICO refused to agree to this amount of coverage, Gallon sued.

              In his fourth amended complaint, Gallon asserted a claim for negligent

misrepresentation. To state a claim for negligent misrepresentation, the plaintiff must

allege—and ultimately be able to prove—that "(1) there was a misrepresentation of

material fact; (2) the representer either knew of the misrepresentation, made the

misrepresentation without knowledge of its truth or falsity, or should have known the

representation was false; (3) the representer intended to induce another to act on the

misrepresentation; and (4) injury resulted to a party acting in justifiable reliance upon

the misrepresentation." Baggett v. Electricians Local 915 Credit Union, 620 So. 2d 784,

786 (Fla. 2d DCA 1993) (citing Atl. Nat'l Bank of Fla. v. Vest, 480 So. 2d 1328, 1331

(Fla. 2d DCA 1985)). At the motion to dismiss stage, the court is limited to determining




                                            -2-
whether the complaint on its face contains allegations that are legally sufficient to state

a cause of action. See, e.g., Maynard v. Taco Bell of Am., Inc., 117 So. 3d 1159, 1160-

61 (Fla. 2d DCA 2013) (quoting Reyes ex rel. Barcenas v. Roush, 99 So. 3d 586, 589

(Fla. 2d DCA 2012)). Notably, the court may consider only the legal sufficiency of the

allegations and may not determine questions of fact or consider issues of proof or

credibility. See Reyes ex rel. Barcenas, 99 So. 3d at 589 (noting that the trial court may

not determine the veracity of a plaintiff's allegations when considering a motion to

dismiss).

              In his count for negligent misrepresentation, Gallon alleged that there was

a time when Mrs. Gallon's coverage with GEICO had lapsed. When GEICO reissued

the policy, the premium was significantly higher. Mrs. Gallon's review of the

declarations page showed that GEICO had reissued the policy with stacked UM

coverage. Unsure of what that coverage was, Mrs. Gallon claimed she called GEICO

and spoke to one of GEICO's agents. Gallon alleged in his complaint that the purpose

of the call was so that Mrs. Gallon "could make a decision on whether to continue

paying for the coverage or decline it." GEICO's agent told Mrs. Gallon that paying for

the stacked UM coverage would mean that "in the event either of her sons were

injured . . . GEICO would pay double the stated amount of $50,000/$100,000 on the

policy because she had two vehicles insured on the policy." Gallon alleged that based

on this explanation of the coverage, Mrs. Gallon "kept the stacked uninsured motorist

coverage and continued paying the listed premium for it." However, despite this

reliance and Mrs. Gallon's payment of the premiums, GEICO denied him the benefits of

the stacked UM coverage for which his mother had paid.




                                            -3-
              A comparison of Gallon's allegations to the elements of a negligent

misrepresentation claim shows that Gallon's allegations were legally sufficient. He

sufficiently alleged that GEICO's agent made a false statement about the extent of Mrs.

Gallon's UM coverage, that GEICO's agent knew or should have known that the

statement was false, that the statement was made to induce Mrs. Gallon to keep the

coverage and pay the higher premium, and that she was now injured due to her reliance

on that misrepresentation. Thus, because these allegations are facially and legally

sufficient to state a cause of action, the trial court erred in granting GEICO's motion to

dismiss this count.

              In this appeal, as it did in the trial court, GEICO argues that this count was

properly dismissed because Mrs. Gallon was not entitled to rely on the representations

of GEICO's agent as to the scope of her coverage when those representations

conflicted with the plain language of the insurance policy. However, "[t]he terms of an

insurance policy do not preclude an action against the insurer or its agent where the

agent misrepresents the coverage of the insurance contract and the insured reasonably

relies on the misrepresentation to his detriment." Martin v. Principal Mut. Life Ins. Co.,

557 So. 2d 128, 129 (Fla. 3d DCA 1990); see also Warren v. Dairyland Ins. Co., 662

So. 2d 1387, 1388 (Fla. 4th DCA 1995) (noting that if Dairyland's agent "had improperly

explained uninsured motorist coverage to plaintiffs, Dairyland could be liable for

uninsured motorist coverage equal to the liability limits"). Moreover, whether an

insured's reliance on an agent's representations is reasonable is generally a question of

fact. See, e.g., Romo v. Amedex Ins. Co., 930 So. 2d 643, 652 (Fla. 3d DCA 2006).

Hence, the question of whether Mrs. Gallon's reliance on GEICO's agent's explanation




                                            -4-
of her stacked UM coverage was reasonable was not one that could be decided at the

motion to dismiss stage of these proceeding and so cannot serve as a basis to support

an affirmance.

              In sum, because the allegations of Gallon's complaint were facially

sufficient to state a cause of action for negligent misrepresentation, the trial court erred

by dismissing this count of the complaint. Accordingly, we must reverse and remand for

further proceedings. The dismissal of the remaining counts is affirmed.

              Affirmed in part, reversed in part, and remanded for further proceedings.



NORTHCUTT, J., Concurs.
ALTENBERND, J., Concurs with opinion.




ALTENBERND, Judge, Concurring.

              I fully concur in this opinion. I am inclined to believe that claims of

negligent misrepresentation in this context should be rare. I write briefly to explain the

unusual circumstances that appear to have led to this claim.

              Ms. Gallon's policy of insurance with GEICO, which was issued in 2008,

covers two automobiles. On one automobile—a 1999 Chrysler that apparently is the

family car—Ms. Gallon purchased standard personal injury protection coverage. She

also purchased $50,000/$100,000 in bodily injury liability coverage and an equal

amount of UM coverage on that automobile. That automobile also has $50,000 in



                                            -5-
coverage for property damage liability, collision coverage, and comprehensive

coverage.

              On the second automobile—a 1990 Toyota that apparently is a teenager's

car—she has only the minimum requirements under the Florida Motor Vehicle No-Fault

Law. See § 627.730-.7405, Fla. Stat. (2008). Thus, this automobile is not insured for

liability coverage or UM. There is no indication in our limited record that GEICO

obtained a written rejection of UM coverage for this automobile. Because the policy

was issued with no liability coverage for this automobile, GEICO may not have required

its agent to obtain a rejection form.

              When GEICO created the written policy for these two automobiles, the

standard language for stacked UM coverage was used on the declaration page—even

though no premium was charged for UM on the Toyota. The standard contractual forms

accompanying the declaration page appear to be the forms that normally would be used

when the policy covered two automobiles, both of which had UM coverage.

              It may be that GEICO has some standard underwriting procedure by

which it "stacks" the $50,000/$100,000 UM on the first automobile with $0 on the

second, so that each car has $50,000/$100,000 in UM for the premium charged on only

the one automobile. If so, that is simply a very odd form of stacked coverage. 1

              The claim in this case is that Ms. Gallon was told by a GEICO agent that

her stacked policy would have twice the limits of UM. In the context of this particular

policy, it is entirely possible that an agent would have interpreted the stacked coverage




              1Whether   such a combination coverage is authorized with or without a
rejection form in Florida is not an issue in this case.


                                           -6-
to provide twice the amount of UM coverage because that is the situation under the

usual policy where both cars have the same limit of UM coverage for both vehicles.

              Ms. Gallon, of course, was contacting GEICO because she thought her

premium was too high. The alleged misinformation from the agent caused her to leave

her policy as it was. Apparently, if she had received correct information, in order to

actually receive typical stacked coverage, she would have been required to pay an even

higher premium. Thus, on remand, she may have a difficult time establishing all of the

elements that she has alleged in her complaint. See Fla. Std. Jury Instr. (Civ.) 409.8.

But at this stage in the proceedings the case was not resolvable on a motion to dismiss.




                                           -7-
