12 Fla. L. Weekly Supp. 399a
Insurance — Personal injury protection — Coverage — Denial — Misrepresentations — Where insured misrepresented to insurer investigating claim of plaintiff that he was injured while working on insured’s vehicle in insured’s garage that alleged accident did not occur, policy relieves insurer of liability for plaintiff’s claim despite fact that plaintiff was not person who committed misrepresentation — No merit to argument that PIP statute, which at time of incident contained no fraud provisions, superseded fraud provisions of policy and required payment of PIP benefits
Affirmed by circuit court at 13 Fla. L. Weekly Supp. 796c.
Circuit court decision QUASHED at 32 Fla. L. Weekly D363a.]
ERNESTO VASQUES, Plaintiff, vs. MERCURY CASUALTY COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County, Civil Division. Case No. 02-CC-2023-20-F. January 19, 2005. Mark E. Herr, Judge. Counsel: Kimberly A. Driggers, The Nation Law Firm, Longwood. Randall A. Wainoris, Haas, Dutton, Blackburn, Lewis & Longley, P.A., Tampa, for Defendant.
FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on October 14, 2004 on the motion of Defendant, MERCURY CASUALTY COMPANY, for final summary judgment and the Court having heard argument of counsel, having considered the authorities, and being otherwise fully advised in the premises, the Court makes the following findings:
Plaintiff has brought a claim for personal injury protection benefits. Plaintiff has claimed physical injuries and related medical expenses that allegedly were incurred as a result of an accident/occurrence that happened on or about December 29, 2001 in the garage of Maida L. Shehata while the Plaintiff was working on the her automobile.
Throughout Defendant’s investigation in this case, the Defendant’s policyholders denied that any accident/event ever happened on or about December 29, 2001 in their garage or relating to their insured automobile. Recorded statements were taken by a representative of Defendant whereby said policyholder and their family members denied that any accident/event ever happened on or about December 29, 2001 in their garage.
Both the named insured, Maida L. Shehata, and her son George R. Shehata, also a listed driver on the insurance policy, were deposed by Plaintiff’s counsel in this case on January 8, 2004. Under oath, at these depositions, both Maida Shehata and George Shehata indicated that said accident did occur on or about December 29, 2001, and admitted to previously telling Mercury Insurance representatives that they denied any alleged incident in his garage.
Defendant contends that the Shehata’s actions severely inhibited Defendant’s ability to investigate this claim. Defendant also contends that these admitted intentional misrepresentations were material and constitute concealment of material facts; relieving Defendant from policy coverage pursuant to the provisions of the policy of insurance between the insureds/policy holders and pursuant to Florida law.
Condition number 10 contained in the Mercury policy of insurance (previously filed with this Court) states in part:
We may void this policy if you or an insured person made incorrect statements or representations to us with regard to any material fact or circumstance; concealed or misrepresented any material fact or circumstance; or engaged in fraudulent conduct; at the time the application was made of any subsequent questioners/forms/statements were signed. We may void this policy due to fraud or misrepresentation after the occurrence of an accident or loss. This means that we will not be liable for any claims or damages which would otherwise be covered. We may deny coverage of an accident or loss if you or an insured person have concealed or misrepresented any material fact or circumstance, or engaged in fraudulent conduct, in connection with the presentation or settlement of a claim.
While this Court sympathizes with Mr. Vasques’ position since he was not the person who committed the misrepresentation and while this Court considers the public policy concerns in this ruling, it must strictly construe the policy as written.
Plaintiff’s reliance on the cases involving the innocent insured doctrine are not on point and are distinguishable. See e.g., Overton v. Progressive Ins. Co., 585 So.2d 445 (Fla. 4th DCA 1991); Auto-Owners Ins. Co. v. Eddinger, 366 So. 2d 123 (Fla. 2nd DCA 1979). Rather, this Court follows those cases argued by Mercury that hold fraud provisions in automobile liability policies are enforceable. See e.g. Lopez v. Allstate Indemnity Co., 29 Fla. L. Weekly D246a (3rd DCA 2004), American Reliance Ins. Co. v. Kiet Ins., Inc., 703 So. 2d 1190 (Fla. 3rd DCA 1997), American Insurance Company v. Robinson, 120 Fla. 674 (Fla. 1935)and Wong Ken v. State Farm Fire & Cas. Co., 685 So. 2d 1002 (Fla. 3rd DCA 1997),and Brown v. Allstate Insurance Company, 838 So. 2d 1264 (Fla. 5th DCA, 2003).
This Court likewise declines to follow Plaintiff’s argument that the policy language supports their position because the insured, policyholder was not the one who “presented the claim” (section 10 of the policy) and therefore the fraud provision did not apply to him. Again, the Court relies on the more broad language of section 10 of the policy.
This Court acknowledges Defendant’s argument that in the PIP arena, there is a line of cases granting summary judgment to Defendant Insurance Companies in situations where through no fault of the Plaintiff medical provider, but rather due to an insured’s failure to cooperate in the investigation of a claim, coverage was denied.
Plaintiff also argued that the PIP statute superseded the fraud provision of the policy and because PIP is mandatory and at the time of the incident, had no exception for fraud, no-fault benefits are required to be paid. This Court cannot agree with Plaintiffs position and again follows Paragraph 10 of the policy.
This Court finds that the policy language contained in the Mercury Insurance policy covers the facts in this case. This Court finds that the Shehatas made material misrepresentations or misstatements to Defendant. Based on these misrepresentations or misstatements, this Court finds that the policy language of the Mercury Insurance Policy is sufficient to relieve Defendant from providing coverage for the alleged December 29, 2001 accident.
ORDERED AND ADJUDGED that Final Summary Judgment is entered in favor of Defendant, MERCURY CASUALTY COMPANY, that Plaintiff, ERNESTO VASQUES, take nothing by this action, and Defendant, MERCURY CASUALTY COMPANY, go hence without day.
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