10 Fla. L. Weekly Supp. 178b
Insurance — Marine — Void policy — Material misrepresentations on application — Underwriters’ motion for summary judgment seeking ruling that policy of marine insurance is void due to material misrepresentations on application for insurance is denied where there exist genuine issues of material fact with regard to materiality of facts omitted or misrepresented
HOWARD LURIE, Plaintiff, vs. CERTAIN UNDERWRITERS AT LLOYDS SYNDICATE NUMBER: 1236, SUBSCRIBING TO POLICY NUMBER: 98/08035, J.B. WILLIAMS & COMPANY INSURANCE UNDERWRITERS, INC., and CANOVA MARINE INSURANCE, INC., Defendants. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 99-1087 (09). January 13, 2003. Robert Lance Andrews, Judge.
[Subsequent order at 10 Fla. L. Weekly Supp. 819a.]
ORDER
THIS CAUSE having come before the Court upon the Motion for Summary Judgment filed by Defendants Certain Underwriters at Lloyd’s London, and the Court having considered same, having heard argument of counsel and otherwise being duly advised in premises finds and decides as follows:
The instant action arises out the sinking of a commercial vessel on September 7, 1998, which Plaintiff had purchased a short time prior thereto. Plaintiff filed a declaratory judgment action asking this Court to rule that Defendants’ policy of marine insurance affords him coverage for the sinking vessels. The moving Defendants are the various underwriters at Lloyd’s London (Lloyd’s) subscribing to a policy of commercial marine insurance issued to the Plaintiff, which afforded coverage on the vessel purchase in August 1998. Lloyd’s now moves for Summary Judgment asking this Court to rule as a matter of law that their policy of marine insurance is void and accordingly offers no coverage to the Plaintiff for the sinking of the vessel.
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 1.510(c) Fla. R. Civ. Pro. The party moving for summary judgment has the burden of showing the absence of a genuine issue of fact. All inferences must be drawn from the proof in favor of the party opposing the motion. Liberty Mutual Insurance Co. v. Stuckey, 220 So.2d 421 (Fla. 4th DCA 1969). Unless the material facts are so crystallized that nothing remains except question of law, summary judgment should not be granted. Moore v. Morris, 475 So.2d 666 (Fla. 1985). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it. Id.
The law is well settled that summary judgments should be sparingly granted, and if there are issues of fact and the slightest doubt remains, a summary judgment cannot be granted. See Campbell v. Anheuser-Busch, Inc., 265 So.2d 557 (Fla. 1st DCA 1972). The burden to prove the non-existence of genuine triable issues is on the moving party, and the burden is not shifted to the opposing party until the movant has successfully met his burden. Holl v. Talcott, 191 So.2d 40 (Fla. 1966). Any doubts and inferences as to the existence or nonexistence of material facts must be resolved against the movant. Id.
Lloyd’s argues that under the marine insurance doctrine of uberrimae fidei, which governs this dispute, HIH Marine Services Inc. v. Fraser, 211 F.3d 1359 (11th Cir. 2000), the policy of marine insurance did not provide coverage for the September 7, 1998 sinking of the Plaintiff’s vessel due to the following:
A. Material misrepresentation of fact in that Plaintiff’s application, representing that he personally would be the skipper on board the vessel;
B. Material misrepresentation of fact in that Plaintiff’s application representing that he personally had 25 years of experience as a skipper on board commercial fishing vessels;
C. Breach of a condition of the coverage which required that only an approved skipper would be in command of the vessel at all times.
The doctrine of uberrimae fidei requires that an insured “fully and voluntarily disclose to the insurer all facts material to a calculation of the insurance risk.” Id. at 1362. This duty to disclose “extends to those material facts not directly inquired into by the insurer.” Id. A material misrepresentation or omission on the policy application is grounds for voiding the policy. Id. at 1363. A material misrepresentation or omission will void a policy even if the failure arose from “mistake, accident, or forgetfulness.” See Gulfstream Cargo, Ltd. v. Reliance Ins. Co., 409 F.2d 974, 981 (5th Cir. 1969). The key issue in the uberrimae fidei analysis is whether the fact misrepresented or omitted was material. A misrepresentation or omission will be considered material only if “it might have a bearing on the risk to be assumed by the insure.” HIH, supra at 1362.
Upon careful consideration of the record herein, this Court finds that there exists are genuine issues of material fact, with regard to Plaintiff’s statements on the application for insurance, that cannot be resolved by summary judgment.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Motion for Summary Judgment filed by Defendants Lloyd’s London is DENIED.
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