12 Fla. L. Weekly Supp. 903a
Insurance — Personal injury protection — Application — Misrepresentations — Error to grant summary judgment in favor of insurer based on material misrepresentations in application regarding residential status of insured’s children where words used in application to describe residency were ambiguous, intent of parties was disputed, and there was no evidence in record conclusively establishing that alleged misrepresentations were material either to acceptance of risk or to the hazard assumed by insurer
RONALD W. MAPES, Appellant, vs. PERMANENT GENERAL ASSURANCE CORPORATION, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 04-0055AP-88B. UCN522004AP000055XXXXCV. July 11, 2005. Appeal from Final Summary Judgment, Pinellas County Court, Judge William B. Blackwood and Judge Myra Scott McNary. Counsel: Barry E. Berger and James J. Dowling, Law Offices of Berger & Dowling, Palm Harbor, for Appellant. Joseph T. Metzger and Kari A. Metzger, Koleos, Rosenberg, Metzger & Doyle, P.A., Tampa, for Appellee.
ORDER AND OPINION
THIS CAUSE came before the Court on appeal filed by Ronald W. Mapes (referred to herein as “Appellant” or “Mapes”), from the Order for Final Summary Judgment, entered July 20, 2004, in favor of Permanent General Assurance Corporation (referred to herein as “Appellee” or “Permanent General”). Upon review of the briefs and the record and being otherwise fully advised, the Court reverses the judgment for the reasons set forth herein.
According to the record, Mapes’ daughter, Mary Mapes, was involved in an auto accident on October 30, 2002, while driving Mapes’ vehicle. Mapes sought to recover from his insurer, Permanent General, under a policy issued on May 31, 2002. That policy provided coverage from June 1, 2002 through December 1, 2002. Permanent General denied the claim on the grounds that Mapes made medical misrepresentations or omissions in the insurance application.
The alleged intentional misrepresentations or omissions stem from a question on that application. The application directed Mapes to “[l]ist all persons 15 and older, licensed or not, who reside in the household or anyone else who regularly drives any of the vehicles.” Mapes did not list anyone in response to that inquiry. The application also asked, “[a]re there any children under the age of 15 in the household.” Mapes answered “no.” Finally, the application required that Mapes acknowledge by his signature that “failing to notify the Company of any member of my household age 15 or older . . . may render my policy null and void” and certified that “all persons age 15 or older who live with me have been reported to the Company.”
At all times material hereto Mapes was the father to Mary Mapes, who was involved in the subject accident, and Nicholas Mapes. Both children were over the age of 15. Permanent General based its rejection of the claim on Mapes’s failure to identify those children in response to the aforementioned portion of the application.
Mapes filed an action against Permanent General for breach of contract and declaratory relief to recover under the policy. Subsequently, Mapes amended to allege a claim that Permanent General was estopped from denying coverage under the policy by ambiguity in the portion of the application previously described.
After answering the complaint and raising several affirmative defenses, Permanent General, moved for summary judgment. The grounds for the motion were that the record conclusively established that Mapes had made material misrepresentations regarding his two children’s residential status. The trial judge agreed. Mapes now calls upon this court to review and reverse this decision.
Two very important principles control this review. First, this court must review the matter de novo. Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001). Second, the record must conclusively establish that there are no issues of material fact and that the movant is entitled to judgment as a matter of law; there can be no doubt Hervey v. Alfonso, 650 So.2d 644 (Fla. 2d DCA 1995). The court finds that this standard of certainty is not met in this case.
Permanent General correctly cites to §627.409(1), Fla. Stat. That provision states in pertinent part:
Any statement or description made by or on behalf of an insured or annuitant in an application for an insurance policy or annuity contract, or in negotiations for a policy or contract, is a representation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply:
(a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.
Thus, the trial court’s order can only stand if the record conclusively establishes two things. First, that Mapes made a misrepresentation or omission, concealment of fact, or incorrect statement. Second, that such representations or conduct is material to either the acceptance of the risk or the hazard assumed by the insurer.
Consider first whether the record conclusively establishes that Mapes made a misrepresentation, omission, concealment of fact or incorrect statement. The insurer’s application called upon Mr. Mapes to identify all those over 15 “who reside in the household or who regularly drive any of the vehicles.” Mapes’s failure to list either of his children must be considered in context. He does tell the insurer in the same application that he has no “children under the age of 15 in the household.” By signing the application Mapes also certifies that he has reported all those over 15 “who live” with him to the company.
Thus, whether there has been a misrepresentation, omission, concealment of fact, or incorrect statement depends entirely on what the combination of words chosen by Permanent General means. Those words include “reside,” “household,” “regularly drives,” and “live with me.” Based on an examination of this record this court finds that at the very best from Permanent General’s standpoint the words, individually, and considered in context, have two reasonable meanings — one of which is inconsistent with the argument that Mapes made a misrepresentation, omission, concealment of fact, or incorrect statement. The result must be decided by the trier of fact. CEM Enterprises, Inc. v. State of Florida, Dept. of Transportation, 868 So.2d 674 (Fla. 1st DCA 2004).
Such representations in applications involve matter of intent and they typically must be decided by the trier of fact. Anderson v. Armor Ins. Co., 674 So.2d 174 (Fla. 2d DCA 1996); Boca Raton Community Hospital v. Brucker, 695 So.2d 911 (Fla. 4th DCA 1997). In State Farm Mutual Automobile Insurance Co. v. Colon, 880 So.2d 782 (Fla. 2d DCA 2004) the court recognized that residency involves consideration of both fact and intention. “A resident is one who lives at a place with no present intention of removing therefrom.” Id. at 783. In contrast to the situation in Colon, there are words in the instant case that remain undefined and the intent of the parties is disputed.
Thus, the ambiguity of the verbiage and the intent of the parties at the very best from the standpoint of Permanent General leave a doubt as to who should prevail and must be resolved by the fact finder. At the very worst, the ambiguity must be resolved against Permanent General. See e.g. Progressive Insurance Co. v. Estate of Wesley, 702So.2d 513 (Fla. 2d DCA 1987).
The foregoing discussion relates solely to the nature of the involved words. It does not relate to the equally critical element of whether any alleged representations were “material either to the acceptance of the risk or to the hazard assumed by the insurer.” §627.409(1), Fla. Stat. Furthermore, it does not address another way by which the insurer can escape liability.1
As Mapes suggests, there is no affidavit or anything else in the record conclusively establishing these facts without a doubt. Appellee suggests essentially, “well everyone knows that these sorts of things are material.” Unfortunately, Permanent General did not ask the trial court to take judicial notice of any of these facts nor are there any supporting affidavits or other sworn supporting material in the record. Counsel’s assertions are not sufficient.
Based on all of these considerations this court finds that the trial judge erred in granting the Motion for Summary Judgment.
Therefore it is
ORDERED AND ADJUDGED that the Final Summary Judgment is reversed and this cause is remanded for action consistent with this order and opinion.
It is further
ORDERED AND ADJUDGED that the Appellant’s Motion for Attorney’s Fees on appeal is GRANTED contingent with the Appellant ultimately prevailing in the proceedings below. The trial court shall determine the reasonable amount of appellant attorney’s fees to be awarded.
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1“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, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.” §627.409(1)(b), Fla. Stat.
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