12 Fla. L. Weekly Supp. 489b
Insurance — Personal injury protection — Application — Misrepresentations — Failure to list household members — Partial summary judgment is granted on issue of whether insureds made material representation and whether misrepresentation was vitiated by agent’s knowledge of true facts — Affidavit stating that “person” at insurance agency was informed and aware of “individuals” residing in home fails to create disputed issue of material fact because it does not suggest who person was, if person was agent of insurer, and identity of individuals insured disclosed — There remains disputed issue of material fact as to whether insurer canceled policy and returned premium within reasonable time period where insurer’s sworn statement merely sets forth period of time during which insurer discovered misrepresentation, not period of time between discovery of misrepresentation and cancellation of policy and refund of premium
MIAMI CHIROPRACTIC ASSOCIATES (a/a/o Fernando Monch), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-2077 COCE 53. February 15, 2005. Robert W. Lee, Judge. Counsel: Russel M. Lazega, for Plaintiff. Leandro E. Lissa, for Defendant.
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AS TO COUNT III
THIS CAUSE came before the Court on February 9, 2005 for hearing of the Defendant’s Motion for Summary Final Judgment, and the Court’s having reviewed the motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, finds as follows:
Background. This is an action for unpaid PIP benefits. In Count III of the Complaint, the Plaintiff alleges that the Defendant insurer has breached its contract with the insured due to failure to pay benefits owed. The Defendant has moved for summary judgment on this Count, claiming that the insureds made a material misrepresentation on their application, which resulted in the cancellation of the policy and return of premiums.
The undisputed facts are as follows:1
1. On September 24, 2002, Fernando Monch and Maria Monch entered into a contract with United Automobile Insurance Company for automobile insurance. The policy was to be effective from September 24, 2002 through September 24, 2003.
2. The application for insurance specifically required that the applicants list “[a]ll persons 14 years or older, licensed or not, who are residents of the applicant’s household [. . .] whether or not they are operators of the vehicles included on this application.” The application further provided that “[f]ailure to provide this information shall constitute a material misrepresentation, which shall result in any and all insurance coverages being void or voidable.”
3. At the time of application and the time of the accident, the Monchs had two sons who were 14 years of age or older, and who were residing in the Monchs’ household.
4. The Monchs failed to list the two sons on the insurance application.
5. If the sons had been listed on the application, the additional premium would have been a minimum of $262.00.
6. No sooner than November 4, 2002 and no later than June 17, 2004, the insurer discovered that the Monchs’ two sons were part of the household.
7. On July 6, 2004, the insurer notified the Monchs that their insurance policy was being canceled retroactively.
8. On July 20, 2004, the insurer returned the insurance premium to Elite Premium Finance, the party who had originally tendered the premium on behalf of the Monchs. Elite Premium negotiated the check.
9. On August 16, 2004, Elite Premium Finance cut a check to Fernando Monch for the returned premium.
Conclusions of Law. The insureds’ failure to list their sons on the insurance was a material misrepresentation. The Plaintiff argues, however, that the Defendant is not entitled to summary judgment because (1) the insurance agent was nevertheless aware of the facts although the sons were not listed on the application; and (2) the insurer failed to cancel the policy and return the premium to the insureds within a reasonable time.
As for the first argument, the Plaintiff is correct that an agent’s knowledge of the true facts vitiates any misrepresentation. See National Emblem Ins. Co. v. Gillingham, 241 So.2d 707, 710-11 (Fla. 4th DCA 1970). In an effort to avoid summary judgment, the Plaintiff filed an affidavit in opposition in which the affiant stated “[a]t that time, Thais at my insurance agency was informed and aware of the individuals residing in my home.” The Court finds that this statement fails to create a disputed issue of material fact because it does not suggest who “Thais” was, whether she was an agent for United Automobile, and who the “individuals” were that the Monchs disclosed. See Crosby v. Paxson Electric Company, 534 So.2d 787, 788 (Fla. 1st DCA 1988) (affidavits must contain “unequivocal assertions”); Stolzenberg v. Forte Towers South, Inc., 430 So.2d 558, 559 (Fla. 3d DCA 1983) (affidavit must set forth “such facts as would be admissible in evidence”; merely stating that “other people used the premises” is insufficient to create a disputed issue of material fact).
Next, the Court considers whether there is a disputed issue of material fact as to whether the insurer canceled the policy and returned the premium within a reasonable period of time. See Presgar Medical Imaging, Inc. v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 156 (Miami-Dade Cty. Ct. 2004). The Defendants’ sworn support for its Motion merely sets forth a period of time during which the insurer discovered the misrepresentation: from the time it began investigating the claims arising out of the accident occurring on November 4, 2002 until the time Fernando Monch clearly put the Defendant on notice during his deposition on June 17, 2004. As a result, there continues to be a disputed issue as to when the insurer discovered the misrepresentation and whether it gave notice of cancellation and returned the premium within a reasonable time thereafter.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Partial Summary Judgment is GRANTED IN PART to the extent the Court holds that no disputed issue of material fact exists on whether the insureds made a material misrepresentation on their insurance application entitling the insurer to cancel the policy. The Court further grants partial summary judgment as to those matters set forth in numbered paragraphs 1-9 of this Order. It remains, however, a disputed issue of material fact as to when United Automobile discovered the misrepresentation and whether it canceled the policy and returned the premium within a reasonable time thereafter.
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1Pursuant to Rule 1.510(d), Fla. R. Civ. P., the Court finds that these material facts have been established without substantial controversy, and at any further hearing or trial in this case, these facts shall be deemed established without the necessity of any further evidence or argument.
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