12 Fla. L. Weekly Supp. 1120a
Insurance — Automobile — Application — Misrepresentations — Where parties agree that insured made material misrepresentation on insurance application by failing to indicate that he had numerous felony convictions in response to question specifically requesting that information, and plain language of application states that if applicant has felony conviction risk of insuring applicant is unacceptable, misrepresentation voided policy from its inception and insurer can deny coverage despite failing to comply with statute and policy provision requiring 45 day notice prior to cancellation of policy
AUGUST ALBY, Appellant, v. NEW HAMPSHIRE INDEMNITY COMPANY, INC., a foreign corporation, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 04-29. L.C. Case No. 2001-CC-15563-O. August 29, 2005. Appeal from the County Court for Orange County, C. Jeffery Arnold, Judge. Counsel: Charles Parker, Jr., Mapp & Parker, P.A., Orlando, for Appellant. Sean McDonough, Bussey, White, McDonough and Freeman, P.A., Orlando, for Appellee.
(Before T. SMITH, RODRIGUEZ, and HAUSER, JJ.)
FINAL ORDER AND OPINION AFFIRMING TRIAL COURT
(PER CURIAM.) Appellant August Alby timely appeals the county court’s final order granting summary judgment on Alby’s claim for automobile under a policy issued by New Hampshire Indemnity Co., Inc. (“NHIC”). This Court has jurisdiction. Fla. R. App. P. 9.030(c)(1)(A). We dispense with oral argument. Fla. R. App. P. 9.320.
The parties do not contest the following facts on appeal. On August 5, 2001, a 1993 Thunderbird LX automobile owned by Alby was allegedly stolen from a parking lot. At that time, Alby had an automobile insurance policy with NHIC, which included a provision for comprehensive coverage. Alby notified NHIC of the facts surrounding his stolen automobile and made a claim under the policy.
NHIC investigated the claim and determined that when Alby completed his application for insurance, he did not indicate that he had numerous felony convictions in response to a question that specifically requested that information. The parties agree that Alby has a criminal history that includes felony convictions. The insurance application question that asked about the applicant’s criminal history indicated that a felony conviction made the risk of insurance unacceptable to NHIC. Accordingly, NHIC sent Alby a “Notice of Cancellation” of the insurance policy at issue and a letter denying coverage for the claim. NHIC returned all of Alby’s premiums to him.
Alby filed suit for the payment of comprehensive coverage under the policy of insurance. NHIC filed an answer, which pled Section 627.409, Florida Statutes, as an affirmative defense. Specifically, NHIC claimed that Alby made
a misrepresentation, omission, concealment of fact, or incorrect statement in the application for the subject insurance policy or in the negotiation for the subject insurance policy [that] was material to the acceptance of the risk or to the hazard assumed by the Defendant, and had the true facts been known to Defendant, it would not have issued the subject policy or would not have issued the subject policy at the same premium rate, or in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss. As a result, the Plaintiff is prevented from recovery under the subject policy and the subject policy should be void.
(R. at 7.)
NHIC subsequently filed a motion for summary judgment based on Alby’s alleged material misrepresentation in the application for insurance. The trial court entered a final order on the motion, which stated:
1. No material issue of fact exists that the policy application for the subject policy contained misrepresentations regarding the Plaintiff’s history of felony convictions that was material to the acceptance of the risk or the hazard assumed by the Defendant insurer. Had the true facts been known to the Defendant about the Plaintiff’s history of felony convictions, it would not have issued the policy (see question 7 of the policy application).
. . . .
3. No material issue of fact exists that the policy of insurance between the Defendant and the Plaintiff had not been canceled prior to the subject loss pursuant to the cancellation provisions of Defendant’s subject policy.
4. The policy of insurance between the Defendant and the Plaintiff is clear and unambiguous with regards to the Cancellation or Termination of the Policy that the Defendant is required to give 45 days notice to cancel the policy where the Defendant intends to cancel because the policy was obtained through a material misrepresentation or fraud.
5. However, the cancellation provisions of Defendant’s subject policy do not prevent Defendant from defending the subject claim under sec. 627.409, Florida Statutes. See Suavageot v. Hanover Insurance Company, 308 So.2d 583 (Fla. 2d DCA 1975); Motors Insurance Co. v. Marino, 623 So.2d 814 (Fla. 3rd DCA 1993).
6. Defendant has met the requirements of F.S. 627.409 to prevent recovery for the loss of the insured vehicle.
(R. at 117-18.)
Alby filed a “Motion for Rehearing and/or Reconsideration of Order Granting Defendant’s Motion for Summary Judgment and Denying Plaintiff’s Motion for Summary Judgment,” which was denied.
Alby then timely and properly filed the instant appeal from this order. On appeal, Alby argues that the trial court erred in granting NHIC’s motion for summary judgment because the policy at issue contained a clause that required that NHIC give the insured 45 days’ notice prior to cancellation. Alby states that NHIC had the right under Florida law to broaden any statutory provision and that Section 627.409, is permissive. Alby argues that by incorporating this 45 days’ notice provision into the policy, NHIC broadened the language of Section 627.409, thereby entitling Alby to 45 days notice prior to cancellation of the policy for a material misrepresentation.
NHIC, however, argues that the cancellation provision in the subject policy tracks the language of Section 627.728, Florida Statutes, and does not broaden the language of Section 627.409, such that 45 days’ notice is required prior to canceling the insurance policy because of a material misrepresentation made by the insured. NHIC also claims that even if the notice of cancellation was ineffective, it is still entitled to defend the claim under Section 627.409, because Alby’s material misrepresentation on the insurance application barred recovery on the claim.
There is no dispute that NHIC’s cancellation did not conform to the policy requirements. The issue, however, is whether this failure to conform to the policy requirements creates insurance coverage when Alby materially misrepresented facts on the insurance application in the first instance.
In Progressive American Insurance Co. v. Papasodero, 587 So.2d 500, 501 (Fla. 2d DCA 1991), the insured made a material misrepresentation in obtaining the automobile insurance coverage. The insured argued that she was still entitled to coverage, however, because the insurance company did not comply with the Claims Administration Statute. Id. at 502. The court disagreed, finding that the “material misrepresentation renders the policy null and void from the date of inception.” Id. The court found that there was no insurance coverage at all due to the material misrepresentation, and therefore whether the insurance company violated the Claims Administration Statute was irrelevant. Id.
Similarly, in GRG Transport, Inc. v. Certain Underwriters at Lloyd’s, London, 896 So. 2d 922, 925 (Fla. 3d DCA 2005), reh’g denied April 1, 2005, the insured argued that the insurer was precluded from arguing that the insured’s material misrepresentation voided coverage because the insurer did not comply with the Claims Administration Statute in denying coverage on this basis. The insurer allegedly violated the Claims Administration Statute by failing to notify the insured of this defense by registered or certified mail. Id. at 925. Following Papasodero, the court found that because the misrepresentation voided the policy from its inception, compliance with the Claims Administration Statute was irrelevant. Id. See also Sauvageot v. Hanover Ins. Co., 308 So.2d 583, 585 (Fla. 2d DCA 1975) (failure to properly cancel insurance policy did not preclude insurer from defending claim against it based on insured’s material misrepresentation); Motors Ins. Corp. v. Marino, 623 So.2d 814, 815 (Fla. 3rd DCA 1993) (“material misrepresentation in an application for insurance . . .will nullify any policy issued and is an absolute defense to enforcement of the policy.”); Motors Ins. Corp. v. Woodcock, 394 So.2d 485, 488 (Fla. 3rd DCA 1981) (“Section 627.409(1) is a viable defense even in the absence of effective cancellation.”).
The cases cited herein clearly state that an insurer may void an insurance policy if the insured made a material misrepresentation, and the insurer establishes that it would not have issued the subject policy, or issued the policy under the same terms, had the true facts been known, regardless of an ineffective cancellation of the policy. As the trial court noted, the parties agree that Alby made a material misrepresentation on his application for insurance, and the plain language of the application, on its face, states that if the applicant has a felony conviction the risk of insuring the applicant is unacceptable to NHIC. Under the cases cited above, failure to comply with the Florida Statutes did not provide coverage if the insured made a material misrepresentation in its application. Therefore, NHIC can deny coverage based on Alby’s misrepresentation, despite not complying with the notice provision in its insurance policy. Thus, the trial court’s entry of final judgment for NHIC is affirmed.
Accordingly, it is hereby ORDERED AND ADJUDGED that the “Final Judgment” entered by the trial court is AFFIRMED. Alby’s motion for attorney’s fees is DENIED.
* * *
