11 Fla. L. Weekly Supp. 196b
Insurance — Personal injury protection — Application — Misrepresentations — Where insured misrepresented self by failing to inform insurer that he was married and that wife was member of his household, nullification of policy with return of entire premium and denial of coverage was within discretion of insurer — Error to award summary judgment in favor of insured
UNITED AUTOMOBILE INSURANCE CO., Appellant, vs. JESUS HUERTA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-546AP. L.C. Case No. 01-473 SP 25. January 13, 2004. An appeal from the County Court, Miami-Dade County, Teretha L. Thomas, J. Counsel: Craig J. Trocino, Law Offices of Craig J. Trocino, P.A., for Appellant. Mari Sampedro Iglesia, Jose I. Iglesia, P.A., for Appellee.
(Before RONALD M. FRIEDMAN, JOSEPH P. FARINA, IVAN F. FERNANDEZ, JJ.)
(FERNANDEZ, J.) This is an appeal of a summary judgment entered by the County Court in Miami-Dade County. Appellee, Jesus O. Huerta, filed suit against Appellant, United Automobile Insurance Company, for failure to pay medical benefits under a Personal Injury Protection [“PIP”] policy. The trial court disposed of all issues in this case by summary judgment. The final issue disposed of by summary judgment was whether Appellee misrepresented his marital status [listing that he was “single” when he was in fact “married”] and whether he failed to disclose that he and his spouse lived in the same household. The trial court held that the above issues were immaterial and entered an order granting summary judgment in favor of Appellee. Thereafter, trial court entered a final judgment in favor of Appellee in the sum of nine thousand four hundred eighty dollars and thirty-seven cents ($9,480.37). This appeal ensued raising one issue — the appropriateness of summary judgment with respect to an alleged material misrepresentation.
The standard for review of a trial court’s summary judgment order is de novo. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). To analyze a summary judgment properly, this court must determine (1) whether there is a genuine issue of material fact, and (2) whether the trial court applied the correct rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130-131 (Fla. 2000); see Philip J. Padovano, Florida Appellate Practice, Vol. 2, §9.4, pp. 130-131 (2003 ed., West 2002).
We find that no genuine issue of material fact exists but that the trial court misapplied the law.
Florida law is clear that where an applicant for an insurance policy makes misrepresentations or false statements of fact on an insurance application, which affect the rate of the premium, then the policy is subject to being voided and recovery may be precluded. Specifically, §627.409, Fla. Stat. (2002) states:
(1) Any statement or description made by or on behalf of an insured. . .in an application for an insurance policy. . . is a representation not a warranty. A misrepresentation, omission, concealment of a fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply. . .
(b) if the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate . . .[emphasis added]”
In addition, Progressive American Ins. Co. v. Papasodero, 587 So. 2d 500 (Fla. 2d DCA 1991), supports preclusion of recovery under §627.409(1)(b). In Papasodero, the insured failed to disclose that she would not be the only driver on the policy. Id. A friend of the insured was involved in an accident while driving the insured vehicle. Even though the friend was not listed on the policy, the car was titled in the friend’s and insured’s name. There was evidence that the friend had driven the car at least three times before the accident. Had the insured disclosed that her friend was to be a second driver on the policy, her premium would have been fifty-seven cents ($0.57) more than the premium she was paying. Id. at 501. The insurance company found this to be a material misrepresentation and voided her coverage from the date of inception. In reversing the trial court, the Second District Court of Appeal found that the insurance company’s action was correct.
A review of the record in this instance indicates that the trial court’s reliance on Martinez v. General Ins., Co., 483 So. 2d 892 (Fla. 3d DCA 1986) was misplaced. In Martinez, the insured failed to disclose that her son was a resident of her household. After the policy’s execution, her son was involved in an accident while operating the vehicle covered under the policy. Id. When the insurance company received notice of the son’s accident, it denied coverage for the son’s claim, canceled the insured’s policy, and refunded the unearned portion of the premium to the insured. The court in Martinez found that the omission of the insured’s son’s name as a household member precluded coverage only for claims arising from the son’s accident. Id. It further found that the insurance company had actually provided coverage for the insured up until the date of her son’s accident. This was evidenced by the company’s action when it canceled the insured’s policy two months after the reported accident, and returned the unearned portion of the previously submitted insurance premium. Id. at 894.
The Appellee would like to have the appellate court believe that Martinez stands for the proposition that the omission of a person’s name on a policy is a material misrepresentation that nevertheless does not preclude coverage, as long as the omitted person does not make a claim on the policy. This argument is unpersuasive. The facts in the Martinez case reveal that rather than rescind the policy from its inception, the insurance company chose to retain that portion of the premium earned up until the date of the accident. In doing so, the insurance company effectively waived its right to deny coverage with respect to the insured. This court finds that Martinez stands for the proposition that if an insurance company retains any portion of a previously paid premium, it has effectively waived its right to deny coverage for the amount of time covered by the payment of the partial premium.
In the case at hand, United Auto did not retain part of the insurance premium. Instead, it chose to void the policy from its inception as the insurance company had in Papasodero. The Appellant’s action did not result in a waiver under Florida law. Rather, the insurance company exercised its authority as provided under §627.409. Furthermore, the court in Papasodero has ruled that the failure to list a person who resides in your household, which may have affected the amount of the premium paid, is a material misrepresentation that could preclude coverage. 587 So. 2d at 500. The facts in the instant case indicate that the Appellee did in fact misrepresent himself when he failed to inform the insurance company that he was married and that his wife was a member of his household. Therefore, the Appellant’s nullification of Appellee’s policy, and the denial of coverage, was within its discretion as provided under §627.409 and Papasodero.
Based on the foregoing, the trial court’s award of summary judgment is REVERSED, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. (FRIEDMAN, FARINA, JJ. concur.)
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