10 Fla. L. Weekly Supp. 592b
Insurance — Personal injury protection — Civil procedure — Sanctions — Challenge to order striking pleadings as sanction for fraud on court — Where claimant swore he resided at his mother’s address in one affidavit and that he resided with his grandmother in a second affidavit, there is no evidence that claimant knew either address might cause disqualification of benefits, and claimant alleges using grandmother’s address for “important mail,” insurer failed to show gross misrepresentation — Abuse of discretion to strike claimant’s pleadings
CALVIN APPELLANT, Appellant, v. OCEAN HARBOR CASUALTY INSURANCE CO., Defendant. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 01-6168 (08). J. Leonard Fleet, Judge. Counsel: Harley N. Kane, Kane & Kane, Boca Baton. Michael A. Packer, Hollywood.
This matter is before the court upon appeal from an adverse decision in County Court which resulted in the striking of Appellant’s pleadings, with prejudice. The order from which appeal is taken is predicated upon the trial court’s finding Appellant sought to perpetrate a fraud upon the trial court. This court has, in the exercise of its discretion, reached its conclusion without benefit of oral argument.
FACTS
Appellant seeks relief from the county court’s Final Judgment of March 12, 2001, striking Appellant’s pleadings, with prejudice. At the hearing the court found Appellant lied to perpetrate a fraud on the court; the discrepant addresses on the PIP benefits forms are the basis of the judgment and the instant appeal.
On April 25, 1999, Appellant was a passenger in an automobile owned by Appellee’s insured, Bonnet; an accident happened and Appellant sustained injuries requiring hospital care. The insurance policy allegedly provides1 PIP benefits for claimants who do not reside at the home where the owner also owns an automobile, or the claimant has an automobile insurance policy.
Appellant applied for PIP benefits from the Appellee insurer. On May 3, 1999, Appellant filled out a PIP claim form. In the line for an address, there appears his grandmother’s address, 1481 NW 33d Way. His grandmother owns an insured Hyundai automobile. The address line immediately below reads, “address, if different,” and Appellant indicates “same.” On June 28, 1999, Appellant filled out another no-fault application and includes the grandmother’s address. The address line-item does not specify the address given is Appellant’s residence or mailing address. The next day, June 29, 1999, Appellant attended a deposition during the course of which he said he resided at his mother’s home on the date of the accident. Appellant’s mother lives at 725 NW 11th Ave., #15 and does not own an automobile. An affidavit of June 29, 1999, shows he swore his residence to be his mother’s home. Yet, an affidavit apparently sworn on June 29, 1999, before the identical notary shows “above address” for the line-item for the residence address on the date of accident. At a deposition on February 2, 2001, Appellant reiterates his mother’s home as his address at the time of the accident. Moreover, at each instance when given an opportunity, Appellant swore he used his grandmother’s address as a mailing address while he lived with his mother.
At the hearing on Appellee’s motion to strike, the evidence presented was essentially identical with the foregoing statement. Appellee perceives as critical Appellant’s omission of any distinction between the grandmother’s address as a mailing address and the mother’s address as his place of residence. According to Ocean Harbor, with which the court agreed, the omission and the discrepancy between the addresses amounted to fraud since entitlement is based on the information submitted by the claimant. The court below found such inaccuracies rose to the level of “contempt for the laws of Florida” and struck appellant’s pleadings.
ANALYSIS
The trial court’s order striking the pleadings for alleged fraud on the court is reviewed under the abuse of discretion standard of review. Accord Rosenthal v. Rodriguez, 750 So. 2d 703 (Fla. App. 3 Dist. 2000). The elements of fraud do not appear to exist, as a matter of law, in the instant record on appeal.2 A motion for striking of pleadings should be granted only upon the most blatant showing of fraud, pretense, collusion or other similar wrongdoing. Young v. Curgil, 358 So. 2d 58 (Fla. App. 4 Dist. 1978); See Kirby v. Adkins, 582 So. 2d 1209, 1211 (Fla. App. 5 Dist. 1991). Should such activity be found to have occurred, the reasonableness of any sanction imposed must correlate with the severity of the act. See Tramel v. Bass, 672 So. 2d 78 (Fla. App. 1 Dist. 1996)3.
When fraud upon the court is offered as a basis for imposition of sanctions, the burden falls upon the movant’s shoulders to not only specifically identify the claimed misrepresentations but to, also, show how those acts or omissions were false or misleading. See Cocoves v. Campbell, 819 So. 2d 910 (Fla. App. 4 Dist. 2002). The movant must show the conduct or statements upon which the fraud claim is based to be deceitful or duplicitous. In Desimone v. Old Dominion Ins. Co., 740 So. 2d 1233 (Fla. App. 4 Dist. 1999), the court upheld the trial judge’s conclusions the appellant made “numerous and repeated misstatements of fact designed to intentionally thwart defendants from conducting discovery” and such conduct amounted to “a perpetration of fraud upon the court.” The trial court properly determined DiSimone’s conduct amounted to “a scheme calculated to interfere with the court’s ability to impartially adjudicate his claim.” Id. In Young v. Curgil, the court reversed an order finding Appellant’s claim of injuries to be feigned and the resulting medical expenses fraudulent, collusive and unnecessary. 358 So. 2d at 60. The Curgil court concluded, “although this is a fair inference from such facts, it is by no means an overwhelming or compelling inference. In our view, the matter is fairly debatable and should have been decided by the trier of fact.” Id. at 60. Cf. Horjales v. Loeb, 291 So. 2d 92 (Fla. App. 3 Dist 1974)4.
Here, the evidence submitted to support the fraud claim fails to indicate the existence of deceit or misrepresentation to a degree so great as to justify striking appellant’s pleadings. Appellee identifies the two affidavits of June 29, 1999, as evidence Appellant was perpetrating a fraud. The two documents are clearly inconsistent. In one application Appellant swears he resided at his mother’s address; in the other, he indicated residing at the time of the accident with “above address,” which is his grandmother’s address. There is no evidence which document preceded the other, nor is there any evidence to support the inference Appellant knew either address might cause disqualification of benefits. On the contrary, Appellant asserts good faith and a belief the information supplied was correct. Appellant consistently alleges using his grandmother’s address for so called important mail. Appellee failed to show a correlation between Appellant’s knowledge of the entitlement provision and the discrepant addresses. The mere disagreement of addresses, without a showing of gross misrepresentation, does not support striking Appellant’s pleadings, a sanction which should be reserved for only the most egregious of cases.
The trial court’s Order of Final Judgment entered on March 12, 2001, is REVERSED. This case is REMANDED to the trial court for proceedings consistent with this order.
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1No copy of the insurance policy is included in the record on appeal. It is unclear whether a copy of the policy was made available to the trial court.
2See Essex Ins. Co., Inc. v. Universal Entertainment, 665 So. 2d 360 (Fla. 5th Dist. 1995): the essential elements of fraud are: (a) a false representation of fact, known by the party making it to be false at the time it was made; (b) the representation was made for the purpose of inducing another to act in reliance on it; (c) actual reliance on the representation; and (d) resulting damage to the appellant.
3The reasonableness of a sanction depends in part on the willfulness or bad faith of the party accused.
4The court upheld the trial court’s dismissal with prejudice when appellant admitted he had given sworn testimony material to the issue of liability in another court proceeding, which testimony was exactly contrary to his sworn testimony in the instant cause. The present defendant was defendant in the prior case and the testimony as changed would make possible the collection upon an insurance liability policy. Without any offer of explanation it would appear that the appellant was guilty of perjury in one of the cases.
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