
    UNION AMERICAN INSURANCE COMPANY, Appellant, v. Juan B. CABRERA, Appellee.
    No. 97-2547.
    District Court of Appeal of Florida, Third District.
    June 24, 1998.
    Rehearing Denied Oct. 1, 1998.
    Douglas H. Stein, for appellant.
    Lopez, Greenberg & Best and Virginia M. Best, for appellee.
    Before JORGENSON, COPE and SORONDO, JJ.
   COPE, Judge.

Union American Insurance Company appeals an adverse judgment in an uninsured motorist coverage (“UM”) case. We reverse.

Plaintiff-appellee Juan B. Cabrera was the owner of his own trucking rig, and obtained trucking work through Truck Brokerage By National (“TBBN”). Plaintiff was required to carry liability insurance. He could either purchase his own policy or opt to be covered by TBBN’s business auto policy. Plaintiff chose the TBBN policy which was written by defendant-appellant Union American.

In May 1994, plaintiff was in an accident with an uninsured motorist. He sought UM benefits from under the TBBN policy, but the policy provided no UM coverage.

Plaintiff brought suit for UM benefits, contending that there had been no proper rejection of UM coverage by the named insured, TBBN. See § 627.727(1), Fla. Stat. From a jury verdict in favor of Cabrera, the insurer appeals.

We conclude that the judgment must be reversed on account of faulty jury instructions. The issue in the ease was whether TBBN, the insured named in the policy, see id., had rejected UM coverage. The statute requires a written rejection. See id. However, under the case law it is also permissible for an insurer to “avoid the statutorily required [UM] coverage if it proves that the named insured orally waived the statutory requirement of a written rejection by knowingly selecting a lesser limit or by knowingly rejecting UM coverage.” Chmieloski v. National Union Fire Insurance Co., 563 So.2d 164, 166 (Fla. 2d DCA 1990) (citation omitted).

The policy in this case had been issued in 1986 and, according to the insurer, documents pertaining to the original issuance of the insurance policy had been destroyed under its records retention policy. Thus, the written rejection could not be produced in the lawsuit. Although the document itself could not be produced, the insurer adduced testimony at trial that there had been both written and oral rejections of UM coverage.

Over the insurer’s objection, the jury was instructed that one of the issues for the jury’s determination was whether any oral or written rejection of UM coverage was in compliance with the requirements of section 627.727, Florida Statutes. The court then read the jury a segment of the statute stating that “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 the insureds under the policy.” Id. § 627.727(1) (emphasis added). We concur with the insurer that this instruction effectively told the jury that the rejection of UM coverage would be ineffective unless in writing. There must be a new trial under proper instructions.

We also note that plaintiff elicited testimony, over objection, that Cabrera had not been given an opportunity to accept or reject UM coverage. Under the statute, the right to accept or reject UM coverage is that of “an insured named in the policy....” Id. § 627.727(1). As Cabrera was not an insured named in the policy, the insurer had no duty to obtain a waiver from Cabrera. The objection should have been sustained.

Reversed and remanded for a new trial.

JORGENSON, J., dissents

SORONDO, J., concurs.

JORGENSON, Judge,

dissenting.

I respectfully dissent. In my view, the jury instructions were in accordance with the law and were entirely proper. The court’s instruction to the jury simply tracked, word for word, section 627.727, Florida Statutes, which requires a written rejection of UM coverage. The insurer’s position throughout the trial was that it had offered UM coverage to the named insured, and that the trucking company had rejected that offer in writing. However, the insurer’s witness further testified that it could not produce that written rejection because the document had been destroyed. Therefore, the jury was properly instructed on section 627.727, in accordance with the evidence adduced, that “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 [UM] coverage on behalf of all the insureds under the policy.” Because the insured had made the written statutory rejection a feature of the trial, the instruction was proper. See Ryder Truck Rental v. Johnson, 466 So.2d 1240, 1242 (Fla. 1st DCA 1985) (“A party is entitled to have the jury instructed on his theory of the case when the evidence, viewed in a light favorable thereto, substantially supports the theory, even though that theory is controverted by the opposing party.”); see also Bohannon v. Thomas, 592 So.2d 1246, 1248 (Fla. 4th DCA 1992) (holding that generally, jury instructions which track statutory language are not erroneous unless they tend to mislead the jury).

At trial, the insurer also repeatedly testified that the insured had made a knowing oral waiver of UM benefits. That testimony, and the cross examination that revealed innumerable discrepancies and inconsistencies that east grave doubt on the credibility of the insurer on the issue of a knowing rejection, comprised the bulk of the trial testimony. It is clear beyond any doubt that the issue of whether there was a valid oral rejection of UM coverage was vigorously tried and argued. Nevertheless, the court’s opinion omits any reference to another instruction, specifically requested by the defendant insurer, that the jury received:

The issue for your determination on the claim of the Plaintiff, Juan B. Cabrera, against Defendant, Union American Insurance Company, is whether the named insured listed in the policy of insurance, Truck Brokerage by National, through its authorized representative made an oral or written informed, knowing rejection of uninsured motorist coverage for the policy of insurance issued by Union American Insurance Company which was in effect on May 10,1994.
If the greater weight of the evidence supports a finding that Truck Brokerage by National made an informed, knowing rejection of uninsured motorist coverage then your verdict should be in favor of the defendant, Union American Insurance Company.
If, however, the greater weight of the evidence supports a finding that Truck Brokerage by National did not make an informed, knowing rejection of uninsured motorist coverage then your verdict should be in favor of the Plaintiff, Juan'Cabrera,

(emphasis added).

Additionally, the special verdict form, submitted to the jury provided as follows:

1. Do you find that Truck Brokerage by National, through its authorized representative, made a knowing rejection
of uninsured motorist coverage for the policy of insurance issued by Union American Insurance Company to Truck Brokerage by National which was in effect on May 10, 1994?
Yes_
No_
2. If the answer to Question No. 1 is yes, was the rejection:
Oral _
Written_:_

The jury checked “No” to question number 1 — whether there had been a knowing rejection of any kind, and never had to reach the issue of whether any such rejection was oral or written. The jury clearly understood that the issue was whether the insured had made a knowing waiver of UM coverage — oral or written — and the verdict form indicates its lack of confusion.

Because the jury found that the insured had not knowingly rejected UM coverage, it never reached the issue of whether any such rejection had been written or oral, and the instruction that tracked the language of section 627.727, even if error, was harmless. See General Syndicators of America v. Green, 522 So.2d 1081, 1088 (Fla. 5th DCA 1988)(holding that where jury’s finding as to one issue makes consideration of second issue moot, erroneous instruction as to that second issue was harmless error).

Although I believe the trial court’s instruction that provided the entire text of section 627.727 was proper, as the issue of a written rejection was vigorously tried, any error in giving that instruction was harmless in light of the other instruction given to the jury at the request of the insurer, and the verdict form that was provided by the court. Where the record reveals that “the series of instructions, considered as a whole, correctly stated the law,” there is no reversible error. City of North Bay Village v. Braelow, 469 So.2d 869, 871 (Fla. 3d DCA 1985), decision quashed on other grounds, 498 So.2d 417 (Fla.1986); see also Matalon v. Greifman, 509 So.2d 985, 986 (Fla. 3d DCA 1987) (“Generally, all instructions given by a trial court should be considered in light of the evidence before reversible error can be ascertained, and if the jury does not appear to have been misled or confused, and no other prejudice or harm has resulted, the judgment must be affirmed. The same test is applied in deciding whether a given instruction was prejudicial or whether failure to give a requested instruction was erroneous.”) (citations omitted); Kinya v. Lifter, Inc., 489 So.2d 92 (Fla. 3d DCA) (holding that any error in trial court’s failure to give particular instruction did not amount to reversible error where instruction and special interrogatory verdict properly advised jury of law), review denied, 496 So.2d 142 (Fla.1986); Yacker v. Teitch, 330 So.2d 828, 830 (Fla. 3d DCA 1976) (“In determining whether a specific instruction is erroneous, it should be considered with all the other instructions given, and the pleadings and evidence in the case.”).

I would affirm.

On Rehearing Denied

PER CURIAM.

By motion for rehearing, plaintiff again urges that the jury instructions in the case were clear, and that the jury was not misled. We adhere to our previously expressed view that the jury instructions, as given, were confusing and misleading.

Immediately after the jury instruction quoted in the dissent, the court instructed the jury over objection:

The next issue for your determination is whether Alex Acosta, president of Truck Brokerage By National, made an oral rejection of uninsured motorist coverage before the inception of the policy of insurance which was in force on May 10, 1994, the date of the accident, and if so, whether such oral rejection is in compliance with the requirements of Florida Statute 627.727, thereby precluding uninsured motorist coverage to the plaintiff, Juan Cabrera.

(Emphasis added). The court then quoted section 627.727, Florida Statutes, at length, including:

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 the insureds under the policy.

(Emphasis added); see § 627.727(1), Fla. Stat. The net effect was a confusing set of instructions which told the jury that an oral rejection would be permissible only if in compliance with section 627.727 — the text of which required a written rejection, not an oral rejection. We have carefully considered plaintiffs arguments that the jury instructions were clear, but we are not persuaded thereby.

Rehearing is denied.

COPE and SORONDO, JJ., concur.

JORGENSON, J., dissents.

JORGENSON, Judge,

dissenting.

I adhere to the views previously expressed in my dissent. 
      
      . This court followed Chmieloski in Muhammed v. Allstate Insurance Co., 582 So.2d 768, 769 (Fla. 3d DCA 1991).
      It has been suggested by one writer that Mu-hammed is in conflict with an earlier decision of this court, Orion Insurance Co. v. Socias, 513 So.2d 233 (Fla. 3d DCA 1987). See The Florida Bar, Florida Automobile Insurance Law § 4.31, at 4-28 (3d ed.1995). However, the two decisions can be harmonized.
      In Orion, the insurance company failed to use the statutorily required waiver form. See 513 So.2d at 234. Under the applicable statute, if the statutorily required "form is signed by a named insured, it will be conclusively presumed that there was an informed, knowing rejection of coverage or election of lower limits.” § 627.727(1), Fla. Stat. (Supp.1984). Although the opinion does not say so, the implication is that the Orion litigation was between the insured and the insurer, and the written waiver form was the only evidence relied on by the insurer to establish a knowing rejection of UM coverage. See 513 So.2d at 234.
      In the later Muhammed decision, the court held that even where the written waiver form departs from that which is statutorily required, this "does not preclude a carrier from otherwise demonstrating a knowing rejection of uninsured motorist coverage.” 582 So.2d at 769. In Mu-hammed, in other words, the insurer sought to rely on other evidence of rejection of UM coverage, whereas in Orion the insurer sought to rely on only a nonconforming rejection form.
     
      
      . Because Cabrera is covered by the policy, although not a named insured, he has standing to raise the question of whether there was a proper rejection of UM coverage. See Travelers Ins. Co. v. Quirk, 583 So.2d 1026, 1028 (Fla.1991). Cabrera is a "class two” insured. See Lumbermens Mut. Cas. Co. v. Martin, 399 So.2d 536, 537 n. 3 (Fla. 3d DCA 1981). See generally The Florida Bar, Florida Automobile Insurance Law § 4.19 (3d ed.1995); Mullis v. State Farm Mutual Auto Ins. Co., 252 So.2d 229, 238 (Fla.1971).
     
      
      . Likewise impermissible was the plaintiff's suggestion that the insurer should have voluntarily obtained a rejection from Cabrera. Not only would such an action contravene the rights of the named insured to make the UM choice, but it would be unworkable as a practical matter. This was a single policy which covered literally hundreds of truck owners who elected to be covered. There necessarily had to be a single choice — to have UM coverage or not — for the policy, and the named insured had to make the choice.
      An issue was also raised about whether the one-month reinstatement of the policy (during which the accident occurred) required a new rejection of UM coverage. It did not. See § 627.727(1), Fla. Stat.
     