             Case: 15-12591     Date Filed: 04/20/2016     Page: 1 of 10


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 15-12591
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 9:14-cv-80461-RLR

STEVEN COCCARO,
on behalf of himself and all others
similarly situated,
SHARON COCCARO,

                                                     Plaintiffs - Appellants,

versus

GEICO GENERAL INSURANCE COMPANY,
a corporation,

                                                     Defendant - Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (April 20, 2016)

Before MARCUS, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Steven and Sharon Coccaro, representative plaintiffs in a putative class

action against GEICO General Insurance Company, appeal from the district court’s

dismissal of their complaint, alleging that GEICO had failed to comply with Fla.

Stat. § 627.727, governing the selection or knowing rejection of uninsured motorist

coverage (“UM coverage”). On appeal, the Coccaros argued that the district court

erred in: (1) concluding that the Coccaros lacked standing to pursue declaratory

and injunctive relief against GEICO; (2) concluding that the Florida Declaratory

Judgment Act was procedural and not substantive; and (3) dismissing the

complaint instead of remanding the case to state court. After thorough review, we

affirm in part, vacate in part, and remand with instructions.

      We review standing determinations de novo. DiMaio v. Democratic Nat.

Comm., 520 F.3d 1299, 1301 (11th Cir. 2008).             The party invoking federal

jurisdiction bears the burden of proving the essential elements of standing,

although “at the motion to dismiss stage, it may be sufficient to provide general

factual allegations of injury resulting from the defendant’s conduct.” Bochese v.

Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005) (quotations omitted). We

also review the legal question of which jurisdiction’s law to apply de novo. Shaps

v. Provident Life & Acc. Ins. Co., 244 F.3d 876, 881 (11th Cir. 2001).

      The relevant facts, as alleged in the complaint, are these. On October 18,

2012, Steven Coccaro applied for a GEICO Florida motor vehicle insurance policy


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to provide protection for himself and his family members, including his wife,

Sharon Coccaro. Steven Coccaro used www.geico.com to apply for his policy,

selecting bodily injury liability limits of coverage at $300,000 per person/

$300,000 per accident. He selected far lower limits of uninsured/underinsured

motorist coverage, $10,000 per person/ $20,000 per accident, using a drop-down

menu on the GEICO website. He never viewed an opt-out form, but GEICO

automatically filled in his e-signature on its opt-out form nonetheless.

       According to the Coccaros, the drop-down menu did not describe the

requirements of Florida law, and the online application process did not require him

to view an opt-out form compliant with Fla. Stat. § 627.727(1). 1 GEICO’s website



1
 Fla. Stat. § 627.727(1) requires that insurance companies issuing uninsured/underinsured motor
vehicle insurance must provide such coverage in an amount equal to the bodily injury liability
coverage afforded by the policy, unless applicants opt out of that coverage:

       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.... The rejection or selection of lower limits shall be made on a form approved
       by the office. The form shall fully advise the applicant of the nature of the coverage
       and shall state that the coverage is equal to bodily injury liability limits unless lower
       limits are requested or the coverage is rejected. The heading of the form shall be in
       12–point bold type and shall state: “You are electing not to purchase certain
       valuable coverage which protects you and your family or you are purchasing
       uninsured motorist limits less than your bodily injury liability limits when you sign
       this form. Please read carefully.” If this form is signed by a named insured, it will be
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did have an opt-out form, although not one strictly compliant with the requirements

of the statute, at the time Steven Coccaro applied for coverage.                    Individuals

applying online could only access that form if they voluntarily navigated to it

through a link first provided to the applicant after the application process had

already been completed. Applicants did not have to view the opt-out form to

complete an application, regardless of whether they selected lower limits of

uninsured/underinsured motorist coverage, or even rejected that coverage entirely.

       The Florida Office of Insurance Regulation (“FOIR”) disapproved the opt-

out form when GEICO submitted it for review, and required revisions to comply

with Florida law. FOIR approved GEICO’s revised form on July 8, 2013. While

the form now complies with § 627.727, the Coccaros claimed “the www.geico.com

website still is not operated so that an applicant is required to navigate to the form,

and be fully advised of his/her options for uninsured/ underinsured motorists

coverage. Instead viewing the form is still totally optional.”

       After Steven Coccaro had selected a GEICO insurance policy with lower

uninsured/underinsured motorist coverage limits, Sharon Coccaro was severely



       conclusively presumed that there was an informed, knowing rejection of coverage or
       election of lower limits on behalf of all insureds.

Id. (emphasis added). We refer to the form described in the bold text as an “opt-out form.”
Notably, nowhere does the statute expressly mention a private right of action against insurance
companies that have failed to provide a proper opt-out form. This Court has never determined,
however, whether the statute provides an implied private right of action.
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injured on September 28, 2013 in a motor vehicle collision caused by an

uninsured/underinsured motorist. The Coccaros filed a claim with GEICO, and

GEICO sent Steven Coccaro a form letter explaining that he had rejected

uninsured/underinsured motorist coverage limits equal to the bodily injury liability

limits provided under his policy when he applied via the www.geico.com website,

and had instead selected the lowest level of such coverage available. GEICO

tendered the Coccaros a check for $30,000, which they declined to accept. In the

meantime, the Coccaros filed a lawsuit against the underinsured tortfeasor who

caused the accident and against GEICO in Broward County Circuit Court.

      First, we are unpersuaded by the Coccaros’ claim that the district court erred

in dismissing their complaint for lack of standing. At an “irreducible constitutional

minimum,” standing requires a plaintiff to show that:

      (1) the plaintiff must have suffered an “injury in fact” -- an invasion of a
          legally protected interest which is (a) concrete and particularized, and
          (b) actual or imminent, not conjectural or hypothetical[;] . . .

      (2) there must be a causal connection between the injury and the conduct
          complained of -- the injury has to be fairly . . . trace[able] to the
          challenged action of the defendant, and not . . . th[e] result [of] the
          independent action of some third party not before the court[; and] . . .

      (3) it must be likely, as opposed to merely speculative, that the injury will
          be redressed by a favorable decision.

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992) (quotations and

citations omitted). “Where the plaintiff seeks declaratory or injunctive relief, as


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opposed to damages for injuries already suffered, for example, the injury-in-fact

requirement insists that a plaintiff allege facts from which it appears there is a

substantial likelihood that he will suffer injury in the future.”         Strickland v.

Alexander, 772 F.3d 876, 883 (11th Cir. 2014) (quotations omitted). “[A] plaintiff

seeking declaratory or injunctive relief must allege and ultimately prove a real and

immediate -- as opposed to a merely hypothetical or conjectural -- threat of future

injury.” Id. (quotations and emphasis omitted).

      The Coccaros claim that they and the class “[h]ave suffered an injury in fact,

in that they have already purchased and have been issued a motor vehicle policy by

GEICO, where GEICO has violated the strict requirements of Florida law.” As for

future injury-in-fact, their only claim on appeal is that because their GEICO

policies may be renewed, GEICO’s practice of denying high limits of

uninsured/underinsured motorist coverage to individuals like the Coccaros, who

may or may not have viewed the opt-out form, continues unabated. However,

under Florida’s statute, if the insured initially selected limits of uninsured motorist

coverage lower than her or his bodily injury liability limits, GEICO is not required

to provide the insured with higher limits of uninsured motorist coverage upon the

policy’s renewal. See Fla. Stat. § 627.727(1) (“When an insured or lessee has

initially selected limits of uninsured motorist coverage lower than her or his bodily

injury liability limits, higher limits of uninsured motorist coverage need not be


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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 unless an insured requests higher uninsured motorist coverage in writing.”).

Moreover, upon renewal, the Coccaros do not -- and cannot -- claim that they

would be unknowingly rejecting higher UM coverage. As Florida courts have

held, the purpose of § 627.727(1) “was to ease the burden placed on insurance

companies by the case law of Florida in proving that an insured knowingly rejected

higher limits of UM coverage by requiring a ‘paper trail’ as conclusively

presumptive evidence of that fact.” Liberty Mut. Ins. Co. v. Ledford, 691 So. 2d

1164, 1166 (Fla. Dist. Ct. App. 1997). Thus, the alleged future injury that would

occur upon renewal could not be considered an ongoing violation of the statute.

      We are also unpersuaded by the Coccaros’ argument that any dispute

between an insurer and an insured over their policy obligations is a “case” or

“controversy” under Article III of the Constitution. The cases the Coccaros cite

involve a declaration of an insurer’s duty to defend or indemnify. But the duty to

defend or indemnify is not at issue in this declaratory judgment action -- rather, the

Coccaros have sued GEICO over its duty to indemnify under the policy in a case

currently pending in state court. In this case, the Coccaros seek a declaration that

because GEICO violated a state statute, it should automatically provide higher UM

coverage limits to a group of policyholders, regardless of whether GEICO’s duty to


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defend or indemnify is at issue with those policyholders. We simply do not see

how the Coccaros and the class can claim “a substantial likelihood that [they] will

suffer injury in the future.” Strickland, 772 F.3d at 883 (quotations omitted).

      As for the Coccaros’ argument that the standing requirements for declaratory

and injunctive relief differ, it is precluded by our precedent. In Strickland, we

expressly applied the same injury-in-fact standing requirement to both declaratory

and injunctive relief: “Where the plaintiff seeks declaratory or injunctive relief, as

opposed to damages for injuries already suffered, for example, the injury-in-fact

requirement insists that a plaintiff ‘allege facts from which it appears there is a

substantial likelihood that he will suffer injury in the future.’”         Id. (quoting

Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir.1999))

(emphasis added). Under the prior precedent rule, we are bound to follow a prior

binding precedent “unless and until it is overruled by this court en banc or by the

Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.

2008) (quotations omitted). Thus, because the Coccaros are not able to show a

substantial likelihood of future injury, the district court did not err in concluding

that the Coccaros and the class lack standing. We affirm the district court's order

to the extent it concluded that the Coccaros’ complaint failed to allege a justiciable

controversy over which federal courts have jurisdiction.




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      We are also unconvinced by the Coccaros’ argument that they would not

have lacked standing to sue if the district court had recognized that the Florida

Declaratory Judgment Act is substantive and had applied it -- instead of the federal

Declaratory Judgment Act -- to their claim. In a diversity jurisdiction case like this

one, a court will apply federal law if the matter at hand is procedural, and will

apply the law of the forum state if the matter is substantive. See Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938). Here, the Coccaros sued “pursuant to the

Declaratory Judgment Act, 28 U.S.C. § 2201 and Chapter 86 of the Florida

Statutes.” However, Florida’s Declaratory Judgment Act, found in Chapter 86 of

the Florida Statutes, is a procedural mechanism that confers subject matter

jurisdiction on Florida’s circuit and county courts; it does not confer any

substantive rights. See Garden Aire Vill. S. Condo. Ass’n Inc. v. QBE Ins. Corp.,

774 F. Supp. 2d 1224, 1227 (S.D. Fla. 2011); accord Nirvana Condo. Ass’n, Inc. v.

QBE Ins. Corp., 589 F. Supp. 2d 1336, 1343 n.1 (S.D. Fla. 2008); see also Manuel

v. Convergys Corp., 430 F.3d 1132, 1138 n.3 (11th Cir. 2005) (“There is little

doubt . . . that the district court had to apply the [federal] Declaratory Judgment

Act, rather than the state declaratory judgment act, in this action.” (citation

omitted)). Because the Florida Declaratory Judgment Act is procedural as opposed

to substantive, the district court did not err in construing the Coccaros’ cause of




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action as a claim for declaratory and injunctive relief brought under 28 U.S.C. §

2201 exclusively.

      We agree, however, that the district court erred in dismissing the case with

prejudice. Instead, the court should have remanded the matter to the state court

from which it was removed instead of dismissing the action with prejudice. See 28

U.S.C. § 1447(c); McGee v. Solicitor Gen. of Richmond Cty., Ga., 727 F.3d 1322,

1326 (11th Cir. 2013). As 28 U.S.C. § 1447(c) explains, once a case has been

removed from state court, “[i]f at any time before final judgment it appears that the

district court lacks subject matter jurisdiction, the case shall be remanded.” See

Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 89 (1991)

(“[T]he literal words of § 1447(c) . . . give . . . no discretion to dismiss rather than

remand an action [that has been removed from state court].” (quotations omitted)).

Accordingly, we vacate the portion of the district court’s order dismissing the

action with prejudice, and remand with instructions to remand the action to the

Fifteenth Judicial Circuit Court of Florida in Palm Beach County, Florida.

AFFIRMED in part; VACATED in part; and REMANDED with instructions.




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