12 Fla. L. Weekly Supp. 156b
Insurance — Personal injury protection — Material misrepresentations — Where insured disclosed during examination under oath that he was pizza delivery person, not a pizza maker as indicated in his insurance application, and that he was using his vehicle to deliver a pizza at time of accident which gave rise to claim for PIP benefits, but insurer failed to return entire premium or give notice of its intent to rescind policy for over two years after EUO, insured waived its right to raise material misrepresentation defense — Insured’s motion for summary judgment as to defense of misrepresentation granted
PRESGAR MEDICAL IMAGING, INC. (George Petitde), Plaintiff, vs. UNITED AUTOMOBILE INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 02-3147 SP 23. November 22, 2004. Linda Singer Stein, Judge. Counsel: Kenneth Dorchak, North Miami. Yvette Blackwell.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO THE DEFENSE OF MISREPRESENTATION
THIS CAUSE came before the Court on the Plaintiff’s Motion for Summary Judgment as to the defense of material misrepresentation. After careful consideration of the motion and being fully advised, the Court’s findings are set forth below.
George Petitde filled out an application for PIP insurance with United Automobile Insurance Company. On that application he stated that he was employed as a pizza maker. Defendant issued a policy of insurance to Mr. Petitde. Subsequently, Mr. Petitde was involved in an automobile accident on May 1, 2001 and obtained medical services from plaintiff, Presgar Medical Imaging, Inc.
Defendant scheduled and Mr . Petitde attended an Examination Under Oath (EUO) on July 5, 2001. At that EUO, the insured explained that he was a pizza delivery person, not a pizza maker. In addition, Mr. Petitde was using his vehicle to deliver a pizza at the time of the accident. Defendant claims that it does not insure anyone who uses his vehicle for business purposes and would not have insured Mr. Petitde had it known of his actual occupation. Nevertheless, Defendant did not take any action for over two (2) years regarding the information obtained at the EUO and collected a premium of $596 pursuant to the declarations page.
On August 26, 2003, Defendant sent a cancellation notice to Mr. Petitde based upon the alleged material misrepresentation discovered in July of 2001. On October 31, 2003, Defendant returned at least part of the premium to Mr. Petitde in the amount of $510.35.1
Plaintiff moves for summary judgment on the grounds that Defendant waived its right to raise material misrepresentation as a defense since it did not return the entire premium or give notice of its intent to rescind the policy within a reasonable period of time. The Court agrees.
The evidence demonstrates that Defendant was aware of Mr. Petitde’s occupation for over two years before taking any action to rescind the policy or return the premium. The Court finds that this length of time was unreasonable as a matter of law. See Pino v. Union Bankers Ins. Co., 627 So.2d 535 (Fla. 3rd DCA 1993); Great Southern Life Ins. Co. v. Porcaro, 869 So.2d 585 (Fla. 4th DCA 2004) and Leonardo v. State Farm, 675 So.2d 176 (Fla. 4th DCA 1996) (“[w]here an insurer seeks to rescind a voidable policy, it must both give notice of rescission and return or tender all premiums paid within a reasonable time after discovery of the grounds for avoiding the policy.”) (Gross, J., specially concurring). Here, Defendant failed to provide notice to Mr. Petitde of the rescission and tender all the premiums paid within a reasonable period of time after learning of his occupation.
Accordingly, Plaintiff’s motion for summary judgment on the issue of material misrepresentation is GRANTED.
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1At the hearing, Defendant’s counsel explained that the amount of the premium returned was reduced by the agent’s commission. However, this alleged fact is not set forth in any of the affidavits submitted by Defendant.
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