10 Fla. L. Weekly Supp. 263a
Insurance — Personal injury protection — Application — Misrepresentation — Declaratory judgments — Where insurance agent filled out application for insurance with knowledge that insured had two daughters and that one daughter had a learner’s permit, agent wrote answers on application contrary to those facts by listing insured and spouse as only residents of household, and agent or her secretary did not read application verbatim in Spanish to insured whom agent knew does not read or speak English, insurer is estopped to allege misrepresentation to cancel policy
SEMINOLE CASUALTY INSURANCE COMPANY, Plaintiff, vs. ISABEL HERNANDEZ, EDUARDO HERNANDEZ, and ISABEL HERNANDEZ as parent and natural guardian of DIANELIS HERNANDEZ and DIMARIS HERNANDEZ, minors, Defendants. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. SC-01-000849-RD. February 21, 2003. Charles E. Burton, Judge. Counsel: Steven Ainbinder, Boca Raton, for Plaintiff. Rafael Roca, West Palm Beach, for Defendants.
FINAL JUDGMENT
This case came before the Court for non-jury trial on February 20, 2003, with Plaintiff represented by Steven Ainbinder, Esquire and Defendants represented by Rafael Roca, Esquire. Based on the evidence presented, the Court makes the following findings of fact and conclusions of law:
The Plaintiff brings this action for Declaratory Relief pursuant to F.S. 86.011, regarding an automobile insurance policy issued to the Defendants in May, 2000. A declaratory judgment is a proper vehicle for an insurer to determine whether coverage exists for a specific pending claim, Britamco Underwriters, Inc. v. Central Jersey Investments, Inc., 632 So.2d 138 (Fla. 4th DCA 1994). This is particularly true where the purpose is to afford the parties relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations, Pandya v. Israel, 761 So.2d 454 (Fla. 4th DCA 2000).
The Plaintiff issued an automobile policy on May 17, 2000, based upon an application for insurance completed by the Defendant, Isabel Hernandez, on May 16, 2000 at Jems Services, Inc. The parties agree that for purpose of this action, Jems Services and the agent, Janet Travieso, were acting as agents for the Plaintiff. The application lists Isabel and Eduardo Hernandez as the only residents of the home and drivers of the automobile, and fails to disclose their two daughters, Dianelis and Dimaris. Further, the application did not disclose that Dianelis had her learner’s permit.
On August 3, 2000, Isabel Hernandez was involved in an automobile accident in which her two daughters were passengers. While not at fault, the Defendants sought medical treatment for injuries sustained in the accident. In December, 2000, the Defendants were notified by a letter from Jems Services that their insurance policy was being canceled. The Plaintiff alleges that pursuant to F.S. 627.409, there was a material misrepresentation on the application for insurance and that because of the misrepresentation, there should be no personal injury protection coverage available for the loss.
Robert Fenimore, a Vice President of Marketing for Plaintiff, testified that in order for an insurance company to underwrite a policy, it must examine the application to know what its exposure is and to determine rates. In addition, it is important to list drivers so they can check the driver’s license records for any history. He testified that pursuant to the rate schedules filed with the State of Florida, the Defendants policy premium would have been $1,069.00 if the children had been correctly listed in the application, rather than the $646.00 charged.1 Janet Travieso is the president of Jems Services, Inc. and the agent for many insurance companies, including the Plaintiff. She testified that she knew that Isabel Hernandez did not speak or read English and that her routine practice is for her secretary to read the entire application and all questions in Spanish, although she had no independent recollection of this incident.
The evidence showed that Isabel Hernandez first went to Jems in 1998 when Ms. Travieso obtained a policy for her with Union American Insurance Company. At that time, the children were under age fourteen and did not have to be disclosed in the application. Due to a lapse in payment, that policy was canceled and then renewed again with a new application in 1999. Both times the application was completed by Jems. She further testified that the applications are maintained in a clients file and kept for three years. Ms. Travieso further testified that she has many Hispanic clients who are new to this country and do not speak or read the English language. She denied that she knew that Isabel Hernandez had children or that Isabel Hernandez told her about her daughter and the fact that she had a learner’s permit.
Isabel Hernandez acknowledged that she signed the application and that she did not read it. She testified that upon arriving from Cuba seven and a half years ago she knew Janet Travieso through the Cuban-American Club in West Palm Beach. She further testified that her mother was friendly with Janet’s mother, and that their daughters knew each other from being involved in beauty pageants at the Cuban-American Club. Isabel testified that on occasions, while getting ready for the pageants, she would be with her daughter, who called her “mommy”, while Janet was next to her or nearby with her daughter.
In May, 2000, Isabel, along with her daughter and mother, went to Jems to renew her policy. She met with the secretary, Lilly Vazconsulo, whom Dianelis knew from middle school and high school, who pulled the Hernandez file from the filing cabinet and began working on the application. Janet greeted her and told her that she was no longer working with Union American and was recommending Seminole. Isabel testified that she told Janet about her daughter having a learner’s permit, but was told by Janet that she did not need to be included on the application until she obtained her regular driver’s license. She further told Isabel that she should wait as long as possible because she rushed to get her daughter a license and she was recently involved in an accident herself. Isabel stated that she was only asked two questions by Lilly, “was her address the same and did she want the same coverage”. The application was marked and Isabel signed where the marks were. She was never shown any documents in Spanish and relied on Janet Travieso to complete the application correctly. Dianelis corroborated her mother’s testimony and noted that Janet even said “hello” to her while she was there. Janet Travieso disputed these facts.
The Defendants do not contest that the failure to list the children was a material misrepresentation and the Court notes that the Plaintiff proved that had they known of the true facts, they would not have issued the policy at the same premium rate2. Notwithstanding, the Defendants contend that the Plaintiff, through the actions of their agent, Janet Travieso, are estopped and have waived their right to deny coverage. Generally, a misstatement or omission in an application for insurance need not be intentional before recovery can be denied, Kieser v. Old Line Life Ins Co. of America, 712 So. 2d 1261 (Fla. 1st DCA 1998). Further, the law presumes that a person who signs an insurance policy application does so with the intent to authenticate it and become bound. Nationwide Mut. Fire Ins Co. v. Kramer, 725 So.2d 1141 (Fla. 2nd DCA 1998).
In considering the evidence presented in this case, the Court finds that the evidence is consistent with the fact that the application for insurance was primarily completed by using the old Union American application and that the agent, or her secretary, did not read the application verbatim to the Defendant. For example, her employment was listed the same as the 1998 application even though she no longer worked at the Hilton. In National Emblem Insurance Company v. Gillingham, 241 So.2d 707 (Fla. 4th DCA 1970), an insurer was not entitled to void a policy where the insured had given the agent the true facts, the agent completed the application, and in reliance upon the superior knowledge and position of the agent, the insured signed the application without reading it. Further, where an alleged misrepresentation is advanced to vitiate a policy, the trier of fact should determine whether the applicant reasonably could be held responsible for the incorrect statement and without fault on the part of the insurer, Travelers Insurance Company v. Zimmerman, 309 So.2d 569 (Fla. 3rd DCA 1975).
In weighing the evidence, the Court may consider the extent of the questions asked by the agent, the accuracy of the answers given by the insured, and the insured’s misrepresentation, when the evidence, as in this case, is not conclusive, Anderson v. Armor Ins. Co., 674 So.2d 174 (Fla. 2nd DCA 1996). Here, the Court finds that the agent filled out the application for insurance with knowledge of the true facts and wrote the answers contrary to those facts. Accordingly, the Plaintiff is estopped to allege misrepresentation to cancel the policy, Stix v. Continental Assurance Co., 3 So.2d 703 (Fla. 1941). Based on the foregoing, it is
ORDERED AND ADJUDGED as follows:
1. The Defendants did not violate the provisions of F.S. 627.409 by failing to include the names of their children on the application for insurance, or that Dianelis Hernandez had a learner’s permit;
2. The Plaintiff shall provide personal injury protection benefits for this accident pursuant to the automobile insurance policy issued to Isabel and Eduardo Hernandez.
3. The Court reserves jurisdiction to determine entitlement to, and award reasonable attorney’s fees and costs in this action.
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1Carter v. United of Omaha Life Ins., 685 So.2d 2 (Fla. 1st DCA 1996), holding that uncontradicted testimony is sufficient to show insurer would not have issued policy if true facts were known.
2Griffin v. American General Life and Acc. Ins. Co., 752 So.2d 621 (Fla. 2nd DCA 1999).
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